The Criminal Justice System Is Not Broken

The criminal justice system

I’ve shared four pieces that my penpal Lacino Hamilton wrote and sent me (this is the one I typed out last month) over the past year and a half, and this piece, fully titled “The Criminal Justice System Is Not Broken, It Is Ruthlessly Effective” focuses on the purpose of the criminal justice system and its horrific objectives. He and I agree on essentially every issue, so if you want to read more of his published work, this is a link to his articles on Truthout. As always, I have not edited or changed any of his writing for this post.

As exoneration and releases from this death sentence inches closer to becoming reality, the member of my legal team that has been with me the longest recently told me during a telephone conversation, “I do not mind when you’re released if you thank other members of the legal team instead of me.” Her suggestion to give all the credit to others did not surprise me.

Fighting for wrongfully convicted people is a cause that Claudia Whitman, the director of the National Death Row Assistance Network, has been pursuing her entire career. Claudia Whitman is a great investigator with massive experience of working to unearth truth and facts overlooked, buried or hidden in criminal cases. She does not have the glamour of a nationally syndicated show nor the accompanying social media buzz creating financial winds at her back. However, she does have an unvarnished sense of duty and an impeccable track record of liberating innocent men and women from bondage.

While it would never cross my mind not to publicly acknowledge how Claudia Whitman has confronted a system heavily weighted against the needs of her clients, most of whom are underprivileged black men, and how she has specialized in helping us receive a second chance in court, on some level I will take her up on her suggestion. That is, most of the time when a person is exonerated and released from prison they pose for a picture or two, thank a few people, then become a footnote in the pantheon of criminal justice horror stories. I’m not going out like that!

There will be many many “thank you’s” in order, but if given an opportunity to make a public statement I plan to ask over and over again, “How can we as a society come to terms with the pervasive presence of wrongfully imprisoned men and women?” According to the National Registry of Exonerations, the phenomenon of wrongly convicted men and women has reached unprecedented levels, and can indeed be prevented. Wrongful incarceration is not an inescapable result of the frailty of our imagination. It is, however, a predictable outcome of a competitive justice system.

Some will undoubtedly ask “How exactly is preventing wrongful convictions possible, given that anything made by humans is subject to error, right?” The solutions are by no means easy, but they are not out of the reach of our informed and resolute effort. Wrongful convictions can be prevented by transitioning from a competitive justice system of winners and losers to a restorative justice system, pending transformation.

An extensive discussion of the term competitive is beyond the scope of this writing, but it is enough to say that it has been deified in American political and popular discourse to advance the market as the solution to most problems. In my experience “the market,” another term for competition, mostly works to the benefit of people who control the land, systems of production, and the formal political and legal structures in which lives are enmeshed. A competitive justice system devastates the lives of “losers,” as the result is usually the punishment of offenders as an end in itself. On the other hand, restorative justice, applied in different ways in differently applications of justice, has emerged as an important ingredient of transformative justice, which effectively seeks to find ways to eliminate cheating.

Any time and anywhere there is competition, there will be cheating—a historical fact. For example, the system of money bail is not a mistake, it is a prosecutorial competitive unfair advantage that exponentially increases the likelihood that poor defendants will be unable to marshal an adequate defense or under duress plea out: cheating! Massively underfunded and understaffed public defender systems is not a legislative oversight, it too is a prosecutorial competitive unfair advantage that contributes to inadequate legal representation: cheating! Stop-n-frisk, dragnet arrest, hiding evidence, fabricating evidence, jailhouse informants, overcharging defendants, mandatory minimum sentencing schemes, and so on, are all forms of cheating.

Before I became a victim of America’s competitive justice system I used to refer to it as a broken system because it imprisons more people than any other country. I have since changed my mind. It is daunting to acknowledge, but this country’s competitive criminal justice system offers sad testimony not to a broken American criminal justice system, but to one that is ruthlessly effective. The criminal justice system as it stands now, based on winners and losers, is working, wrongful convictions and all.

Unless we agree that the criminal justice system should be based on winners and losers, wrongful convictions will never end. And no matter how great an investigator Claudia Whitman is, she and a thousand people of equal greatness will not suffice. This includes the criminal justice context but also extends to conflicts in families, schools, neighborhoods, workplaces or on a national or international level.

It is my belief that a transformative justice system will enable the wider community to participate in denouncing crime, supporting victims, and building true solutions. It will also enable the wider community to take charge of the underlying causes of crime: poverty, abused children, unemployment, discrimination, a gross disproportion of resources and power, and other deep social problems so that crime and other injury is less likely to occur.

This involves discovering that cheating is not only a tool of people willing to win at any cost, but is also embedded in the very social structure of society. So the social structures, and not just individuals who work within it, must be changed if society is to change. It is a reality that calls for every member of society not only to recognize and acknowledge this, but to take a position regarding it, like Claudia Whitman has her entire career.

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