In the Pursuit of Justice, Do We Need Trials?

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The US is the
world's greatest prison state; of that there can be little debate.

By any method
of counting we incarcerate more of our citizens than any other country
in the world. Even China has fewer total prisoners than the US,
and China's per capita rate is also much smaller than the US rate.
Yes my friends, even China has fewer criminals in jail than we do.
Surprised?

“Statistics
released today by the Bureau of Justice Statistics (BJS), a branch
of the US Department of Justice, show that at the end of 2006,
more than 2.25 million persons were incarcerated in US prisons
and jails, an all-time high. This number represents an incarceration
rate of 751 per 100,000 US residents, the highest such rate in
the world. By contrast, the United Kingdom's incarceration rate
is 148 per 100,000 residents; the rate in Canada is 107; and in
France it is 85. The US rate is also substantially higher than
that of Libya (217 per 100,000), Iran (212), and China (119).”
(Human
Rights Watch
)

The question
is whether the law is a shield that protects "the people"
or a club that is used to beat down them down. If we incarcerate
many times as many of our citizens per capita than our European
allies, can we find an explanation for this difference? Are we really
that much more criminally inclined here in the good old USA than
populations abroad that seem to be very similar to us?

Paul Craig
Roberts once wrote
that the principles that make our law a shield of protection for
the citizens, and not a weapon of tyranny in the hands of prosecutors,
are called “the Rights of Englishmen.” The Rights of Englishmen
were listed by Mr. Roberts as: due process, the attorney-client
privilege, equality before the law, the right to confront adverse
witnesses, and the prohibitions against attacking a person through
his property, bills of attainder, self-incrimination, retroactive
law, and crimes without intent. He claimed these rights are the
bedrock of our legal system.

Let us look
at due process; what is it? The Constitution guarantees that the
government cannot take away a person’s basic right to life, liberty
or property, without due process of law. I suppose one could say
that “due process” is basic fairness. You could say that due process
means that the state must prove its case in a manner that is just
and moral in a court of law while respecting the other rights as
outlined above. In our system we expect that the truth will come
out in the court trial of the accused, and we believe that everyone
accused will have their day in court. At least, that is our hope.

I invited a
criminal defense attorney to speak to a class of 8th
grade students in a private school a few years ago. He was a parent
of one of the children and after he was done he recommended another
parent who was also a defense attorney to speak; and I gave that
other attorney equal time.

The talks by
both men were simply amazing. They both eventually got to the fact
that over 97 percent of the cases in our town are settled by plea
bargain. Both had stories of men who pleaded guilty to avoid trial
even though they were innocent. These stories would immediately
get the attention of the children, "why would someone say they
were guilty when they were not"?

The answer
has to do with the awesome power of the prosecutor’s office and
the idea of piling criminal counts on top of other criminal counts
until any matter could net one untold years in jail. We were told
by both attorneys that for centuries on end criminal charges were
not arbitrary. We in America would charge a horse thief with theft,
but not with conspiracy to steal horses, willful evasion of taxes
on stolen horses, cruelty to animals and diminishing the civil rights
of horse owners; but this is no longer true.

The prosecutor’s
office is also funded by the taxpayer and can spend untold fortunes
on "expert witnesses" that are paid to testify in court
to whatever the prosecutor’s theory is in the matter. The prosecutor
can also offer time off or immunity to convicted criminals if they
will testify against the defendant in the case. The criminals will
often say whatever is necessary to help their own situation and
the truth or justice has nothing to do with it.

We were told
that it is a fiction that the government will not retaliate against
you if you demand your constitutional right to a jury trial in a
criminal case. That was the most shocking statement of the day to
my young charges.

The class and
I were left with the distinct impression that the courts were rigged
to fill jails and that justice was not on the agenda. When one of
the children asked, "how is that fair?"; the answer was
that the fair came to town in October and was at the fairgrounds
on west Highway 50. This seems to be a well-known joke among lawyers,
but it was a real comedown for the children and myself.

We were left
with the idea that our system is founded on the idea that only in
a proper court case tried by a jury of our peers could justice even
have a chance of prevailing. The famous rights of Englishmen identified
by Mr. Roberts are without meaning as long as there is no trial.
That means in my town there is no justice in at least 97 percent
of the cases. No wonder the jails are full. As long as we circumvent
the court trial by jury with the plea bargain there will be no justice
in America for the accused, be he innocent or guilty.

Do we really
not care that justice is arbitrary in our country? I know I care;
but what can be done? I suppose for now we try to inform our fellow
citizens and hope that they see that an injustice in any one case
is an injustice for everyone.

March
26, 2008

Joseph Potter
[send him mail] lives
in Florida and teaches in a small private school.

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