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The
Justice System Is Criminal
Paul
Craig Roberts
On
January 23, 2017, I asked, “Are Americans Racists?” I pointed out examples
where racist explanations prevail over empirical fact. I did not write that
there is no racism in America. I said that racism is not the be-all and end-all
explanation of American history and institutions. The point I made is that
racist explanations are often inadequate and both work against racial harmony
and blind us to more general and more serious problems.
Perhaps
the worst of America’s failed institutions is the criminal justice system. The
US has the largest prison population in the world, not only as a percentage of
the population but also in absolute numbers. “Freedom and democracy” America
has an absolute larger number of incarcerated citizens than “authoritarian”
China, a country with four times the US population.
Many
factors contribute to this result. One is the privatization of prisons, which
has turned them into profit-making enterprises ever needful of more labor to
exploit, which adds to the pressure for convictions. Another factor is the
disregard of the protective features of law in order to more easily pursue
demonized offender groups, such as the Mafia, child abusers, drug dealers and
users, and “terrorists.” Lawrence M. Stratton and I describe the transformation
of law from a shield of the people into a weapon in the hands of the state in
our book, The Tyranny of
Good Intentions.
This
transformation did not occur because of racism. It occurred because chasing after
devils and convicting them became more important than justice. Today the
criminal justice system is largely indifferent to a defendant’s guilt or
innocence. This is a far worst problem than racism. It is the main reason that
there are so many false convictions in the US and so many wrongfully convicted
Americans in prison. Indeed, even the guilty are wrongfully convicted as it is
easier to frame them than to convict them on the evidence.
To be
clear: The primary reason for wrongful conviction is that the success indicator
for police, prosecutor, and judge is conviction, not justice. Crimes are solved
by wrongful convictions. High conviction rates boost the careers of
prosecutors, and high profile convictions boost their political careers. The
key to rapid and numerous convictions is the plea bargain. And plea bargains
suit judges as they keep the court docket clear. Today 97% of felony cases are
settled with a plea bargain. This means police evidence and a prosecutor’s case
are tested only three times out of 100. When the evidence and case are tested
in court, the test confronts a vast array of prosecutorial misconduct, such as
suborned perjury and the withholding of exculpatory evidence. In America,
everything is loaded against Justice.
In a
plea bargain police do not have to present evidence, prosecutors do not have to
bring a case, and judges do not have to pay attention to the case and be
troubled by a growing backlog as trials consume days and weeks.
In a
plea bargain the defendant, innocent or guilty, is told that he can plead to
this or that offence, which carries a lighter sentence than the crime that
allegedly has actually occurred and on which the defendant is arrested, or the
defendant can go to trial where he will face more serious charges that carry
much harsher penalties. As it has become routine for police to falsify
evidence, for prosecutors to suborn perjury and withhold exculpatory evidence,
for jurors naively to trust police and prosecutors, and for judges to look the
other way, attorneys advise defendants to accept a
plea deal. In other words, no one expects a fair trial or for real evidence to
play a role in the outcome.
The short of it is that the pursuit of justice is not a feature of the
American criminal justice system. Justice does not matter to the police, to the
prosecutor, to the jury, to the judge, and often not to the hardened defense
attorney who has witnessed so much injustice that he believes justice is a
fairy tale.
The
only exception to this is the justice introduced from outside the justice
system by innocence projects and pro bono attorneys, such as Bryan Stevenson,
director of the Equal Justice Initiative in Montgomery, Alabama.
In
2014 Stevenson published Just
Mercy, a fascinating collection of case histories of wrongful
convictions that he and his colleagues managed to have overturned. A book such
as this benefits from a main case, and the one that
Stevenson delivers is that of Walter McMillian. It
required six years for Stevenson to overturn what must be the most obvious,
blatant frameup of a completely innocent man in US
history. There were a large number of witnesses who testified that they were
with McMillian at a fish fry during the time that a
murder for which McMillian was indicted and convicted
took place. The only “evidence” against McMillian was
the suborned perjury of a man who retracted his coerced testimony three times,
once in the courtroom of Alabama Judge Thomas B. Norton, who simply ignored it.
McMillian is black, and the sheriff, prosecutor, judge, and jury
that framed him are white. This fact, together with the fact that the ignored
witnesses whose testimony cleared McMillian were
black and McMillian’s sexual affair with a white
woman in a small Alabama town, seem to convince Stevenson that McMillian was convicted because of racism.
Using
Stevenson’s own account, I am going to show that many other factors in addition
to racism played roles in McMillian’s wrongful
conviction. Stevenson’s emphasis on a racist explanation of Alabama justice
deflects attention from the fact that human
corruption and evil go far beyond mere racism. McMillian
was wrongfully convicted, because the justice system has no concern with
justice. Letting the system off as merely racist doesn’t nearly go far enough.
The problem is much worse.
McMillian was falsely convicted, (1) because sheriff John Tate was
under community criticism for the failure to solve the murder case of a young
woman and needed someone to arrest for the crime, (2) because Ralph Meyers gave
false testimony against McMillian for confused
reasons that did not work out for him, (3) because the local newspaper, as
newspapers are wont to do, convicted McMillian in the
press, which meant that the jury had to convict or be accused of letting off a
murderer, and (4) because the judge, Robert E. Lee Key, not only is unworthy of
his name but most certainly did not have the fortitude to run a fair trial when
the only possible outcome for his career and reputation in the community was
conviction. Neither did his successor, Thomas B. Norton, have fortitude for the
same reasons.
I am
convinced that all of these representatives of the justice system are racists,
but they would have convicted McMillian for the same
reasons if he had been white. If the justice system was concerned with justice,
he would not have been convicted irrespective of race or gender.
What the emphasis on racism blinds us to is that the justice system is
corrupt because justice does not play a role in it. Justice has to be brought into the system
from outside by people such as Bryan Stevenson. And for people such as
Stevenson to bring justice into the justice system, they must have a high
tolerance for death threats and for witnessing justice fail again and again.
I
want to emphasize that I am not being critical of Bryan Stevenson. He is very
intelligent, overflowing with integrity, determination, ability and empathy for
others. He has a moral conscience second to none. He is someone everyone would
love to have as a friend and colleague. If Stevenson does not see what his own
work reveals, that injustice prevails irrespective of race and gender, it is
because he grew to maturity during a time when the victimization of identity
politics is the prevailing explanation. Victimization has expanded to its
limit: everyone is the victim of white heterosexual males. I wouldn’t be
surprised if white heterosexual males have now been shown by identity politics
to be the victims of themselves.
Stevenson
describes the convictions of white women by white women. In the aftermath of
hurricanes and tornadoes that wrecked coastal Alabama, Marsha Colbey gave premature birth to a stillborn son. She came to
the attention of police because her busybody neighbor Debbie Cook had noticed
the pregnancy but saw no child.
Colbey’s fate was sealed by the media craze set aflame by Andrea
Yates and Susan Smith’s murders of their children. Media sensationalized the
baseless suspicion surrounding Colbey and turned her
into another “dangerous mother.” Forensic pathologist Kathleen Enstice testified without evidence that Colbey’s
son had been born alive and had died by drowning. The state’s
own expert witness, Dr. Dennis McNally, and the defense’s expert witness Dr.
Werner Spitz testified that Colbey’s age alone placed
her pregnancy at high risk for fetal death and that there was no scientific
evidence that a crime had occurred.
Irresponsible
media had communities and juries on the lookout for “dangerous moms” who should
be put in prison, and they found one (along with many others) in Colbey. The trial judge permitted Colbey’s
fate to be decided by jurors who stated that they could not honor the
presumption of innocence in Colbey’s case. Other
jurors said that they always believe the police and prosecutor. This failure of
justice enabled Stevenson after years of effort to secure Colbey’s
release. Clearly, Colbey’s wrongful conviction had
nothing to do with racism. Identity politics would want to say she was
convicted by misogynists, but Colbey was the victim
of other women.
Justice
is so absent in the criminal justice system that Victoria Banks in order to
avoid capital punishment was coerced into a plea bargain carrying a 20-year
sentence for murdering her child after her pregnancy despite the fact that
there was no pregnancy and no child. Stevenson was able to win her release by
establishing that she had had a tubal ligation five years prior to her alleged
pregnancy, which made it biologically impossible for her to conceive and give
birth to a child.
A
woman whose tubes were tied, for which conclusive medical evidence existed,
five years before she was accused of having just had a child that she murdered
is forced into a plea bargain carrying 20 years in order to avoid the electric
chair. Perhaps only Alabama could produce something this absurd, but this is a
faithful picture of American “justice.”
Stevenson’s
legal work for wrongfully convicted women brought him into contact with more
horror. At Alabama’s Tutwiler prison for women, women prisoners were raped and
made pregnant by prison guards. Stevenson reports: “Even when DNA testing
confirmed that male officers were the fathers of these children, very little
was done about it. Some officers who had received multiple sexual assault
complaints were temporarily reassigned to other duties or other prisons, only
to wind up back at Tutwiler, where they continued to prey on women.” In other
words, rape is not a crime if you are a prison guard at a women’s prison.
This
is a faithful picture of justice in America.
The
justice system needs victims, and is focused on ruining people’s lives whether
they deserve it or not. The more American lives ruined, the greater the success
of the justice system.
There
is a current case in Alabama of a US Marine honorably discharged who suffers
from PTSD. To help out a family friend, who needed a car for work but could not
obtain a loan, the Marine sold him a car of his own, which the family friend
was to pay off monthly. When payments stopped, the former Marine inquired. Payments
were promised, and the family friend offered his cell phone to be held until
payments caught up, as an indication of his good faith to pay.
It
turned out to be the wrong cell phone, not the debtor’s personal phone but a
company-issued one. The company regarded it as a theft by the Marine, and the
family friend had to report it to the police. The fact that it was all a
misunderstanding has not caused the justice system to drop the case. Instead
the prosecutor is demanding a misdemeanor plea. In other
words, another person with something on his record who can be a suspect for the
next burglary. As everyone in the case is white, injustice is occurring
despite the absence of racism.
It is
a paradox that child protection laws in the hands of police and prosecutors
have become weapons with which to ruin children.
A
father whose son is being ruined for life over nothing sent me the story with
his permission to publish it as a warning to others about the heartlessness
with which the justice system irresponsibly ruins even the immature young. This
story again demonstrates that the function of American justice is not justice,
but to ruin as many people as possible and as early in life as possible. The
gratuitously ruined lives that the justice system achieves is
the monument to the success of justice.
I
decided not to publish it, not because I disbelieve it, but because the son has
not been sentenced, and protestations of innocence in media, as Stevenson says,
can prejudice authorities against the defendant, especially in Virginia where
this miscarriage of justice took place. I do not want to expose the son to risk
in the event that the father is wrong, as I suspect he is, in expecting
publicity to elicit compassion and empathy that would moderate an unjust event.
Instead,
I will tell the gist of the story, which illustrates the tyranny of good
intentions. Child protection laws were passed by legislators ignorant of the
unintended consequences. Consequently, the laws have done far more harm than
good.
Let’s
call the son Zach. Having just turned 18, he was visiting a young woman his age
whose younger sister introduced him via social media to a 13 year old female
who shared his interest in dragons and animation. The two never met. As their
shared interest developed via the Internet, so did their friendship.
As
the natural process that turns a girl into a woman progressed, the cyber
relationship developed a romantic aspect. The girl/woman sent Zach five
photographs of herself in her underwear.
Later
the girl/woman developed emotional problems due to the impending divorce of her
parents and was admitted to a mental health facility. At some point she
confided her cyber relationship with Zach to a counselor. The “child
protection” laws required the counselor to inform the police, who seized Zach’s
computer and found chat logs and the five photos.
The
consequence was that Zach was charged with 20 felony indictments carrying 350
years in prison. As they always are, the charges were vastly overstated. For
example, the five photos sent to Zach of a torso in underwear (apparently the
girl’s face was not shown) got Zach charged with distribution of child
pornography.
No
charges were filed by the parents of the girl. The charges were entirely the
idea of the prosecutor’s office, and the 350 years produced a plea bargain to
lesser offences. American criminal justice had secured another victim.
In
the absurdity that is American law you can be guilty of “indecent liberties
with a minor” without ever having seen the girl in person or ever having been
close enough to touch. The advent of virtual reality and video screens means
that crimes can have happened in virtual reality that did not happen in real
reality.
In my
days it was almost impossible to be guilty of indecent liberties with a minor,
because the age of female sexual consent was 14. But as females sexually
matured earlier, the age of sexual consent was irrationally pushed higher.
Today the legal age that a male may have sex with a female is 18. In other
words, the absurd American legal system pretends that women do not have sex
until after they graduate from high school. Who can imagine college dorms full
of virginal women?
When
America had a livable legal system, law was based on the common ordinary
behavior of people. This is known as the Common Law, the foundation of law in
England and the United States.
Today
the law is so uncommon as to be absurd. Yet absurdity is enforced with
vengeance.
The
video age means that crimes can be committed by looking at a video screen, and
that is what happened to Zach. Neither his attorney nor the judge told Zach and
his parents that his coerced plea meant that there was no appeal and that he
was registered for life as a sex offender. Zach had committed a “violent sex
offense” online! It was the girl who sent the photos, but the offense was
Zach’s for having them on his computer.
We
owe these crazed results that destroy our youth to “child advocates” who have
pushed through in total ignorance of unintended consequences laws that
criminalize the normal sexual exploration and testing that accompanies the
teen-age years that begin with puberty. Child advocates think that when a kid
enters puberty at age 12 or 13 nothing is supposed to happen until the kid is
18. Then at this magic age, everything illegal at 17 becomes legal. People who
produce laws like this ruin people. Laws pushed by child advocates have broken
up families and taken children from their homes and placed them in foster care
where they are often abused. By providing a bounty to Child Protective Services
for seizing children, the federal government provides an incentive for CPS to
break up families on the slightest pretext.
And
they enjoy the ruin that they inflict. When you read Bryan Stevenson’s Just Mercy, what you
encounter are Americans who enjoy ruining other people. What Stevenson is revealing is not
racism but evil unleashed. When the liberals destroyed religion as
a moral restraint, they released evil. Evil is now everywhere in the West and
seldom held accountable—Abu Ghraib, Guantanamo
Prison, the CIA Black Site torture prisons, women’s prisons where inmates, most
of whom are wrongfully convicted, are routinely raped by guards, and American
courtrooms in which sit judges whose function is to defend justice but who
accept coerced pleas from innocents in order to save themselves work.
This
is America, a country totally devoid of justice, a hapless country forced to
suffer injustice except for those few cases that heroes such as Bryan Stevenson
are able to overturn.
If
only Americans in their so-called democracy had the power to make Bryan
Stevenson Attorney General for life and give him the power to write and enforce
the laws would justice return to America.
God
help a country as totally devoid of justice as the United States of America.
It is
important to understand that very few of these wrongful convictions are
mistakes. They are done willfully, because the overriding incentive of the
American criminal justice system is to produce convictions at all cost.
Police,
prosecutorial and judicial misconduct seldom bear any cost. Just so you
understand how “law’” completely protects the police, prosecutors and judges
who routinely violate it, as Stevenson reports, “state and federal courts have
persistently insulated prosecutors from accountability for egregious misconduct
that results in innocent people being sent to death row.” In 2011 a Republican
Supreme Court ruled that a prosecutor cannot be held liable for misconduct in a
criminal case, even if he intentionally and illegally withheld evidence of
innocence.
In
plain words, criminal actions against the innocent are now the legalized policy
of the American criminal justice system.
Are
the American people moved by these extraordinary injustices and their
legalization by the Supreme Court of the United States? Are the Alabamans in
the same county who egged on the frame-up of Walter McMillian
ashamed of their willing complicity in a gratuitous act of injustice? Absolutely not. They reelected sheriff
Tate, and he remains in office today.
In
2003 Illinois governor George Ryan, citing the
unreliability of evidence on which capital punishment is based commuted the
death sentences of all 167 people on death row. His reward was to be convicted
on false corruption charges and sentenced to five years in prison. Ryan was
convicted by the coerced testimony of Scott Fawell
who received in exchange for his testimony reduced prison time for himself and
his fiancee.
On
the stand Fawell said that the prosecutor had his
“head in a vise” and that he was testifying against Ryan to save his fiancee from a long prison sentence. He said his testimony
against Ryan was “the most distasteful thing I’ve ever done.” That jurors
believe such compromised witnesses is the reason defendants avoid jury trials.
This
is the face of justice in America, a hapless country totally devoid of justice
where law exists solely for the economic benefit of those whose careers rise
with conviction rates, whether of the innocent or the guilty.
Law
professors, such as Harvard’s Charles Fried, have shown their indifference to
wrongful conviction. Fried came up with the argument that “finality” was more
important than justice. Fried was annoyed by appeals. He argued that ending a
case had its own importance and that at some point appeals based on fresh
evidence had to be cut off even if it meant an innocent person was executed or
spent life in prison.
Conservative
legislators showed their indifference to wrongful conviction in 1994 when they
took over Congress and promptly eliminated federal aid for legal representation
of the wrongly convicted on death row. The conservatives were more comfortable
with the deaths of innocents than with admitting the willful mistakes made by
“law and order.”
The
indifference of Americans to injustice has spread outside US borders. The
Clinton, George W. Bush, and Obama regimes are responsible for millions of dead
and displaced persons in 10 countries—Serbia, Somalia, Afghanistan, Iraq,
Libya, Yemen, Pakistan, Syria, Ukraine, and Palestine. None of those responsible
have expressed any remorse and neither have the American people.
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