Greybear posted a comment to my post, The Dignity of the Court At Stake, that got me thinking.
The question is–At what point is the system so broken that we can no longer even pretend that it works? Personally, I think we passed that point some time back. The trouble is, I can’t foresee that tearing this one down would result in anything better.
Before deciding it the system is so broken, it would be interested in knowing what about the system people think is broken.
Some potential problems areas:
The Jury
Are jurors capable of discerning truth from deception, or is this just a vanity of our
support for trial by jury?
Do jurors default to “trust the cops” for lack of a better way to decide who is
telling the truth?
Can jurors understand the court’s legal instructions?
The Judge
Are judges biased?
Are trial level judges capable of understanding nuanced distinctions in the law?
Are judges willing to make hard, unpopular decisions?
Are the people who become judges properly motivated?
Are judges too result-oriented, couching decisions in fine sounding rhetoric
but essentially bent on ruling consistent with political outcomes?
Is there a fundamental flaw in our selection of judges, such that the people
who want to sit in judgment are not necessarily the people we want
to have as judges?
The Law
Have laws based on political considerations, such as mandatory minimums,
undermined the ability of the system to deliver individualized justice?
Has the constant “tweaking” of laws to control outcomes by politicians usurped and
undermined the authority of the judicial branch?
In the zeal to address all issues of crime, have states and Congress enacted
enough laws to turn essentially everyone into a criminal?
The People
Has the American public lost all sense of proportionality in criminal justice?
Have American’s become too harsh in their view of the treatment of others?
Are people too simplistic to grasp complex concepts relating to criminal justice?
Has fear of crime and terrorism been so instilled in the American psyche that
the public can no longer serve as a check on unfettered governmental power?
The Lawyers
Has the transition from profession to business caused a loss of trust in lawyers
by the public?
Are there too many lawyers?
Is the distribution of lawyers in practice areas and public/private service so out of
whack that lawyer no longer fulfill their purpose in society?
Do lawyers lack the skill and ethics demanded of them?
Have lawyers lost sight of their proper role in society?
These are just a few quick questions, and certainly not intended to limit the potential source of issues confronting the criminal justice system. So, what’s broken and why?
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The judicial system has been at odds with the general public for decades. They’ve allowed the police free reign to do whatever they want, without any repercussions. The activist judges and the judicial branch of government is so dangerous that anyone, without cause, can be accused and convicted, murdered or harassed for almost any reason. Remember Waco and Ruby Ridge? At Waco they burned 89 women and children to death without cause and at Ruby Ridge they murdered Randy Weavers wife while she held onto her young child. The judicial system has fully supported these jack booted thugs through graft and the hijacking of our constitution. Caution: Those of you that believe that the system works may one day find themselves shot to death for having a bachelor party. I suggest anyone that believes in our twisted system, begin with the best history lesson of all: The United States Constitution.
Lucy, it was not the judicial branch that burned the Branch Davidian compound, and it wasn’t the judicial branch that murdered Randy Weaver’s wife. It was the executive branch.
People who think they’re complaining about judicial activism are usually actually complaining about judicial complacency in allowing the legislative and executive branches to run roughshod over our rights.
Scott, I think a big answer lies in your fourth question about the people: the people are afraid, and because of this fear they give their power up to the government. If they trust the government, it’s because of fear; if they elect bad judges, it’s because of fear; if they let their legislatures pass vicious laws, it’s because of fear.
Some lawyers have lost sight of their proper role in the face of this fear. Some haven’t.
Was it not Attorney General Janet Reno who gave the order? Was it not the judges who signed the warrants? I have the entire FBI report regarding the entire Waco disaster. They even admit that David Koresh was easily available for questioning since he road his bike to town to get the mail every day.
That’s my point exactly. Attorney General Janet Reno was part of the executive branch, not the judicial branch.
An activist judiciary would say “no” to the executive rather than saying, “yeah, whatever.” Letting the executive and legislative branches do whatever they want is judicial passivism.
Mark,
I definitely agree with you on that. The judicial branch of our government is out of control. It’s becoming the most dangerous part of government.
…” Are people too simplistic to grasp complex ( actually, simple ) concepts relating to criminal justice ? “
…I submit Lucy as evidence that this be the case.
I appreciate your trying to bring this back on track, after it went very far afield.
Am I on Candid Camera?
It seems that way sometimes. Thanks for trying to help.
Whoa Cowboy, My point is that what you call criminal justice is color of law. Which means that case law determines the outcome. It also allows for unlawful search and seizure,etc. No, this is not simplistic. Maybe you should go back to the mosh pit for another slam dance.
I have a Ridgeback named Lucy. I’ll go ask her opinion.
I don’t know if I missed previous discussion, but what do people think is the proper role of lawyers in society?
Sometimes I think it is trying to hold back a locomotive with my bare hands and sometimes I think it has turned into greasing the rails.
In your previous blog you mentioned that the courts work because we believe in the dignity of the court (paraphrasing). To me, that is the single biggest issue, a general lack of respect from the top down.
I don’t know how to go about changing that, but I think taking away the President’s immunity would be a good start. If anyone is above the law, then the law means nothing.
Oh dear…what have I wrought?
The quick answer is “All of the above”
That said, I think Mark hit the nail on the head. The real problem is fear, at every step in the process.
Fear is used to justify draconian legislation. Fear of being seen as “soft” on crime drives legislators, judges and prosecutors to ignore constitutional protections. Fear of the people they police drives cops to be overly aggressive and trigger-happy. Fear of lessening their own job security keeps good cops from doing anything about the bad ones that they privately loathe. Fear of diminishing their own effectiveness keeps attorneys from advocating as strongly as they should.
And in among all those are those who quite cynically use the various fears to increase their own power.
The reason I fear trying to start over is that if you try to build a new structure in this climate of fear, we’ll all end up with permanent shock collars with GPS systems. For the children.
That’s a bit too existential to mean much to anyone else. Could you be a little more specific?
So if we went back a few years, before 9/11, SORA or maybe even before FISA, was everything working fine?
Today, there are some glaring problems that we deal with daily, but before the war on drugs, crime, terrorism and whatever other wars we were busy waging in between, we still had issues. Don’t miss the forest because we’re bumping into a lot of trees these days.
Exactly SHG.
The potential problems were always there. It took time to figure out the system well enough to take advantage of them (“figure out” in a very general way).
Maybe someone else has a better time line, but I’m thinking we lost something after WWII. World power, the atom bomb, and the cold war, seems like a good place to start. The growing power of the executive branch. The diminished authority of the Legislative branch. The manipulation of the Judicial branch.
I think all of these things work to undermine public confidence not only in their government but on some level, in themselves.
Take away the President’s ability to be pardoned for any transgressions while in office.
Do I think there was a Golden Age? No, not at all. How long had Washington been retired before the Alien and Sedition Acts were signed into law? What troubles me is that at this point in history there is no counterbalancing force. When Jefferson came into office, the Alien and Sedition Acts were repealed. Now when we change administrations, nothing is repealed and new layers are added. The downward spiral is accelerating fairly smoothly. It may be too early to say that the United States is a police state..but not very much too early, and by the time it’s fully in place there’s nothing you CAN do about it.
Unfortunately, people in general value the perception of safety more than the reality of freedom–secure in the belief that those laws will only affect “those people”. And until that changes, we can only do what we can do..try to save as many hostages of the state as we can. I don’t delude myself that I’m making the world a better place. I just try to slow the process of it becoming worse.
It started much earlier than that, really. Certainly Roosevelt’s manipulation of the high court in the 30’s. Wilson’s Espionage Act during WWI, even the use of force to prevent secession in the 1860’s.
http://www.poetryloverspage.com/poets/kipling/kipling_ind.html
Those in power have always “made people afraid” to secure their compliance.
What’s not the same as it ever was is the tools that government has at its disposal now: making people afraid is a much more highly-developed science than it was when the King tried to convince the colonists that only he could protect them from the indians.