One night, years ago, a friend called me, wanting some legal advice. It wasn’t for her, but for her neighbor. Her next door neighbor owned a motorcycle and had held his toddler on the bike between his legs and drove him around the driveway. Another neighbor, seeing this, called the police, who came and arrested the man for reckless endangerment of a child. Admittedly, it might not have been the smartest thing to do, but it wasn’t like the man was out on the highway traveling 60 miles per hour. I mean, how fast can you go turning laps in your driveway? A child probably has a more significant risk of danger by being tossed up in the air and caught by a parent. And who of us that are parents haven’t done that? Don’t the police have anything better to do?
On another occasion, I attended a sentencing hearing to read a letter I helped two brothers write. These brothers were the majority owners of the oil and gas company I worked for at the time. The person being sentenced was a former employee, who had embezzled about $200,000 from the company. She was no ordinary employee. She was one of the first employees hired and was very close to these two brothers, and even babysat their kids from time to time. The brothers were devastated by these events – not as much over the loss of the $200,000, but because of the violation of their trust in the woman. They knew there had to be an explanation for her actions. They figured she must have had gambling debts or she was paying for someone’s cancer treatments. But no explanation surfaced, and the woman, even when repeatedly asked by the FBI, prosecutors, and the judge, remained silent. The brothers were so angry at her that they didn’t want to see her ever again. Thus, they asked me to read their letter to the judge. The judge, apparently frustrated by her lack of forthrightness, stated he wanted to sentence her to more time, but sentencing guidelines restricted him from imposing more than a two-year sentence. The judge also imposed an order that she repay the debt. To my knowledge, though, not a single cent was ever repaid. So if the sentencing guidelines were just guidelines, why did the judge feel so compelled to follow them to the letter?
America’s judicial system has some serious problems. Recently I watched the film, Detroit.[i] It is a fact-based depiction of the race riots that took place there in 1967 and focuses on a few rogue police officers who killed three young black men and verbally and physically abused nine other people (seven black men and two white women) at a local motel. The police were searching for an alleged sniper and the gun he was using (which turned out to be a starter’s pistol, capable of shooting only blanks). Here is a scene illustrating the brutality and bigotry of the police officers. It is hard to watch because of the violence and the language, so skip it if you are faint of heart:
The state of Michigan later brought assault and murder charges against three of the officers involved. Despite the victims testifying of these officers’ actions in great detail, a jury composed of twelve white men acquitted all three.
As a lawyer, I should know something about the criminal justice system in America. Sadly, almost all of my knowledge comes from personal experiences with family and friends. Based on those experiences, I have learned three sorry truths about our criminal justice system: the punishment is often disproportionate to the wrongdoing, rarely is the mental health of the perpetrator considered in prosecution or punishment, and once you are in the system, it is tough to get out.
The documentary, 13th,[ii] looks closely at the criminal justice system in America, and leads one to the conclusion that it is racially biased. The title comes from the 13th Amendment to the Constitution, which outlaws slavery, but with one caveat: “except as a punishment for a crime whereof the party shall have been duly convicted.” The film argues that using this loophole, and the “law and order” and anti-drug policies of American Presidencies starting with Richard Nixon, people of color have continually been dominated and disenfranchised. Here is a clip:
Whether or not you believe the premise of 13th, both statistics and anecdotal accounts of our criminal justice system are startling.
In 1972, the prison population in America was 300,000. Now there are 2.3 million. The United States has the highest rate of incarceration in the world. Also, seven million people are on probation or parole. Unbelievably, one in three black men between the ages of 18 and 30 are in jail or on probation or parole. In large urban areas such as Los Angeles, Baltimore, and Washington, D.C., those percentages increase to between 50 and 60 percent. In Alabama, 34 percent of all black men have permanently lost the right to vote because of a conviction of a felony.
If you are thinking, well it’s good that all these felons are behind bars, making our streets safer for the rest of us, think again. Two-thirds of the people currently in jail are there while they wait for their day in court. In other words, they have not been convicted of their alleged crime and remain in prison because they have been either denied bail or they are too poor to pay it. Of the 12 million arrests in this country, only five percent of those are for violent crimes. Only five percent! The vast majority of arrests (about 75 percent) are for low-level misdemeanors (like my friend’s motorcycle-riding neighbor). If you think the system is always fair to all races and all economic classes, then consider the story of the homeless man in Texas who, on a cold night, stole four blankets to keep warm. He spent eight months in jail awaiting his trial because he had no means to pay the $3500 bail. Or the Louisiana man sentenced to 13 years in prison for possession of two marijuana joints. Or three teenage boys in West Memphis, tried as adults in 1994, for the murder of three young boys. One was sentenced to the death, and the other two to life imprisonment, primarily because they might have been involved in satanic ritual. The movie, Devil’s Knot,[iii] is a dramatization of the events surrounding these three teenagers. Here is a trailer for the movie:
In 2007, new forensic evidence in their case revealed there was no DNA evidence at the scene or on the victims from the three defendants. The courts, however, disallowed this new evidence. Four years later, the defendants worked out a plea bargain with prosecutors. In the agreement, the defendants continued to assert their innocence but admitted there was sufficient evidence to convict them. For such an admission, the three defendants, now grown men, were released from prison for time served. Each served over 18 years in prison.
So what can be done to improve the system? Bryan Stevenson,[iv] an attorney who specializes in defending young boys who are being tried as adults, argues that race and wealth need to come out of the justice equation. He often asks the question, how does it happen that we allow judges to turn a young boy, maybe as young as 13, into something he is not (an adult)? He would like to turn that same young boy into a 70-year-old white CEO of a major company and see what justice looks like then. Or in his words, the opposite of poverty in America is not wealth; it’s justice. Anne Miligram,[v] the former Attorney General of New Jersey, through analyzing mountains of data, has developed a rating system which focuses on the odds of a defendant being a threat to public safety and being a repeat offender. She is striving to make sure that such a system is available to every judge in America so those judges can make informed decisions of whether a defendant is an actual risk to the public’s safety rather than relying entirely on a judge’s gut instinct. And Andrew Jolley, part of the ever-growing business around medical marijuana, urges that drug laws be amended so the punishment more accurately fits the crime. With mandatory sentencing for drug convictions, a mail courier, for example, would be sentenced to ten years in prison if he had two previous misdemeanor convictions and then found guilty of possession for carrying a package of drugs, even though he or she did not know the contents of the package.
Perhaps Andrew Jolley is right. We need to change our drug laws. John Ehrlichman, the Domestic Policy Advisor for Richard Nixon, explains the real intentions behind the War on Drugs, the results of which are still with us today:
“Do you want to know what this was really about? The Nixon campaign in 1968 and the Nixon Whitehouse after that had two enemies: the anti-war left, and black people. Do you understand what I’m saying? We knew we couldn’t make it illegal to either be against the [Vietnam] War or black, but by getting the public to associate the hippies with marijuana and the blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course, we did.”
Here are a few of my suggestions on how to start fixing our criminal justice system:
- Pay attention to and speak out against injustice, wherever you find it. The first step to any change is recognition of the problem.
- Focus more on compensating the victims of crime than punishing the criminal (although I believe that punishment is still an important part of the process).
- Require all states to pay adequate compensation to those who are convicted and later exonerated through DNA or other evidence. Sadly, one in nine prisoners sentenced to death has later been exonerated.
- Stop prosecutors from seeking the maximum crime with the maximum penalty, even though the evidence does not support such a charge, which often forces a defendant, even if innocent, to plead to a lesser crime rather than face the chance of being found guilty and serving the maximum sentence or even death. Effectively, this practice is denying many defendants the right to have their day in court.
- Change the mandatory sentencing laws for habitual crimes. Serving a life sentence for non-violent drug offenses, for example, far exceeds the nature of the crime.
- Set bail amounts based on whether the defendant is a risk to the public’s safety and a flight risk. Poor people, in jail for a non-violent crime but who cannot afford the bail, should have expedited arraignments and trials.
- Support public defenders and civil rights watch groups. These people are underpaid and overworked. Even small donations are greatly appreciated.
- Support programs that factor in and treat defendants suffering from mental illness. For many of these defendants, incarceration in prison is the last place they should be. Drug treatment facilities or mental health centers are a far better option, and those treatments might actually get at the root of the criminal behavior.
- Be careful of relying on eyewitness testimony alone. There are too many examples of witnesses misremembering that we should always require corroborating evidence.
- Legalize medical marijuana in all states. The medical benefits of marijuana for some illnesses and the relief of side effects from certain medical treatments are undisputed. It is crazy that people needing these benefits must either move or engage in criminal activity.
You may disagree with some or all of my suggestions, and that is okay. But we need to begin having serious discussions about this issue. Talk is always good. Action is better.
- Production Company: Annapurna Pictures, First Light Production
- Director: Kathryn Bigelow
- Screenwriter: Mark Boal
- Starring: John Boyega, Anthony Mackie, Algee Smith
- Release date: August 4, 2017
- Production Company: Kandoo Films
- Director: Ava DuVernay
- Screenwriters: Spencer Averick and Ava DuVernay
- Starring: Melina Abdullah, Michelle Alexander, Cory Booker
- Release date: October 7, 2016
[iii] Devil’s Knot
- Production Company: Worldwide Entertainment
- Director: Atom Egoyan
- Screenwriters: Paul Harris Boardman and Scott Derrickson (based on the book by Mara Leveritt)
- Starring: Colin Firth, Reese Witherspoon, Alessandro Nivola
- Release date: March 12, 2013
[iv] Watch his Ted talk at https://www.ted.com/talks/bryan_stevenson_we_need_to_talk_about_an_injustice
[v] Watch her Ted talk at https://www.ted.com/talks/anne_milgram_why_smart_statistics_are_the_key_to_fighting_crime