America’s Broken Criminal Justice System

Submitted by: Mike Spindell, guest blogger

200px-JMR-Memphis1While I’m not a lawyer, I do write for this legal blog by the invitation of its creator Jonathan Turley. I first arrived on the scene here many years ago because since the age of ten I have had been interested in the nature of the broad spectrum of civil rights issues faced by this country. My interest became an obsession at the age of ten. My parents, who were quite liberal, allowed me to stay up way past my bedtime to watch Ed Murrow bravely attack Sen. Joseph McCarthy for his Communist Witch Hunt, by documenting the anti-constitutional excesses he used to destroy people’s lives and careers. Months later they kept me home from school to watch the Army/McCarthy Hearings which directly led to McCarthy’s downfall. On our twelve inch, black and white TV I watched this famous scene:

“On June 9, 1954, the 30th day of the Army–McCarthy hearings, McCarthy accused Fred Fisher, one of the junior attorneys at Welch’s law firm, of associating while in law school with the National Lawyers Guild (NLG), a group which J. Edgar Hoover sought to have the U.S. Attorney General designate as a Communist front organization. Welch had privately discussed the matter with Fisher and the two agreed Fisher should withdraw from the hearings. Welch dismissed Fisher’s association with the NLG as a youthful indiscretion and attacked McCarthy for naming the young man before a nationwide television audience without prior warning or previous agreement to do so:

“Until this moment, Senator, I think I have never really gauged your cruelty or your recklessness. Fred Fisher is a young man who went to the Harvard Law School and came into my firm and is starting what looks to be a brilliant career with us. Little did I dream you could be so reckless and so cruel as to do an injury to that lad. It is true he is still with Hale and Dorr. It is true that he will continue to be with Hale and Dorr. It is, I regret to say, equally true that I fear he shall always bear a scar needlessly inflicted by you. If it were in my power to forgive you for your reckless cruelty I would do so. I like to think I am a gentle man but your forgiveness will have to come from someone other than me.”

When McCarthy tried to renew his attack, Welch interrupted him:

“Senator, may we not drop this? We know he belonged to the Lawyers Guild. Let us not assassinate this lad further, Senator. You’ve done enough. Have you no sense of decency, sir? At long last, have you left no sense of decency?”

McCarthy tried to ask Welch another question about Fisher, and Welch cut him off:

“Mr. McCarthy, I will not discuss this further with you. You have sat within six feet of me and could have asked me about Fred Fisher. You have seen fit to bring it out. And if there is a God in Heaven it will do neither you nor your cause any good. I will not discuss it further.”

The gallery erupted in applause.”

The drama of this distinguished lawyer chastising one of the most powerful men in the United States and silencing his cruelty was one of the defining moments of my life. It spurred a lifelong interest in the Constitution, the Law and the rights of the American People. Today, among other ills, I believe that our American Criminal Justice System is broken. Let me explain why I believe that.

While our Constitution allows us freedom of expression, thought and association, in the 40’s and 50’s  “Cold Warriors” began to institute witch hunts to root out those Left Wingers they deemed held radical political beliefs. People’s lives were destroyed because in their youth they had been part of various political groups that Congressional Committees deemed subversive. These actions tended to make citizens afraid to disagree with the “Cold War” excesses that were already beginning to give outrageous power to the Corporate Military/Industrial Complex. An analogous situation is arising to quiet those who espouse “internet freedom and openness” as illustrated by the Aaron Swartz suicide.

Rather than focus on that case, to which those two blogs and subsequent comments provide excellent insight, I would rather look at certain aspects of our legal system today that serve to destroy the notion of a Criminal Justice System that operates fairly towards each citizen and make that system into an instrument of oppression. There is in my opinion so many things wrong about American Criminal Jurisprudence that covering the entire range of “injustice” would require much larger space than this blog post provides. So I would like to touch on what I think are the highlights corrupting this system.

Unfairness of Representation

The truth is that a person charged with a crime in America today needs the means, or connections to have a good legal team. Wealth is a key decider of ones’ chances in a Criminal Trial and in the case of loss the harshness of the imposed penalty. The prosecution has the advantage of virtually unlimited funds and powers to make the legal battle, a “David and Goliath” situation, without David’s advantage of God on his side. Another component of this is that Prosecutors tend to press cases that they think they can win and also avoid to press charges in cases involving very wealthy and/or powerful people. Prosecutors have the advantage of Media publicity and a public that believes “where there’s smoke there’s fire”.

Indigent defendants are at a loss and despite the best efforts of the dedicated people who are Legal Aid Lawyers, the disparity in resources usually lead to defeat, despite exculpatory evidence. We also know that Black and Latino people make up the majority of those convicted and incarcerated in this country as I documented in this guest blog last year: . This unfairness goes beyond just affecting people who would be considered poor. The average middle-class American would be overwhelmed with the cost of mounting a defense to a criminal prosecution. I think that raising bail money alone for charges considered major would be a problem for a majority of Americans and even when found innocent the effects of the charges would take years, if ever, to end. An even-handed Criminal Justice System should give each defendant a fair chance to fight the charges against them. While we have been led to believe that our Criminal Justice System represents the model of  even-handed justice, yet this is not the case today in our country.

Under Funding of the Court System

To be considered to be a “fair” trial, a trial should a speedy trial. This is not the case and we see instance after instance of a trial taking many years between arrest, incarceration and verdict. While some might argue that this is caused by lawyers seeking delays, this answer is for the most part specious. Instead, these untoward delays are the result of under funding the court system which results in over crowding its dockets. From the Prosecution’s side, they will often delay trials to gain further evidence for their case. This ignores the idea that in arresting someone, there should be a presupposition that the evidence of guilt has already been obtained. The prosecution extends the length of the accused’s incarceration by making often outrageous bail requests (on “bail able” offenses) that go far beyond a defendant’s ability to pay. This skews the system against those without financial resources and also increases the Prosecution’s chances of getting a plea bargain leading to an admission of guilt and conviction.

“Plea Bargaining” an Insult to Justice

Due to the overcrowding and under funding of the Judicial System “plea bargains” arose to clear the dockets. In my opinion “plea bargaining” is a desecration of justice. It lead Prosecutions to “overcharge” as a means of threatening a defendant who would assert their innocence. In cases where there are multiple defendants, it allows one or more defendants to make a deal for their testimony against the others. The bargained for testimony is usually self serving to the witness and to the prosecution. Plea bargaining often leads to unequal results, sometimes even giving guilty defendants lesser sentences than their crime deserves. About 90% of criminal cases are “plea bargained” and thus the notion of trial by jury is fast becoming extinct. This was put so well in a paper by the Cato Institute titled “The Case Against Plea Bargaining”:

“Because any person who is accused of violating the criminal law can lose his liberty, and perhaps even his life depending on the offense and prescribed penalty, the Framers of the Constitution took pains to put explicit limits on the awesome powers of government. The Bill of Rights explicitly guarantees several safeguards to the accused, including the right to be informed of the charges, the right not to be compelled to incriminate oneself, the right to a speedy and public trial, the right to an impartial jury trial in the state and district where the offense allegedly took place, the right to cross-examine the state’s witnesses, the right to call witnesses on one’s own behalf, and the right to the assistance of counsel.

Justice Hugo Black once noted that, in America, the defendant “has an absolute, unqualified right to compel the State to investigate its own case, find its own witnesses, prove its own facts, and convince the jury through its own resources. Throughout the process, the defendant has a fundamental right to remain silent, in effect challenging the State at every point to ‘Prove it!’” By limiting the powers of the police and prosecutors, the Bill of Rights safeguards freedom. Given the Fifth Amendment’s prohibition of compelled self-incrimination and the Sixth Amendment’s guarantee of impartial juries, one would think that the administration of criminal justice in America would be marked by adversarial trials — and yet, the opposite is true. Fewer than 10 percent of the criminal cases brought by the federal government each year are actually tried before juries with all of the accompanying procedural safeguards noted above. More than 90 percent of the criminal cases in America are never tried, much less proven, to juries. The overwhelming majority of individuals who are accused of crime forgo their constitutional rights and plead guilty.”

That this articulate attack on plea bargaining comes from the very conservative Cato Institutes illustrates that a fair court system is not a political notion, but one that goes beyond political divides. It is a basic Constitutional issue and one that has degraded our criminal justice system as this paper from Cato goes on to point out:

“The rarity of jury trials is not the result of criminals who come into court to relieve a guilty conscience or save taxpayers the costs of a trial. The truth is that government officials have deliberately engineered the system to assure that the jury trial system established by the Constitution is seldom used. And plea bargaining is the primary technique used by the government to bypass the institutional safeguards in trials. Plea bargaining consists of an agreement (formal or informal) between the defendant and the prosecutor. The prosecutor typically agrees to a reduced prison sentence in return for the defendant’s waiver of his constitutional right against self incrimination and his right to trial. As one critic has written,

“The leniency is payment to a defendant to induce him or her not to go to trial. The guilty plea or no contest plea is the quid pro quo for the concession; there is no other reason.”

 Plea bargaining unquestionably alleviates the workload of judges, prosecutors, and defense lawyers. But is it proper for a government that is constitutionally required to respect the right to trial by jury to use its charging and sentencing powers to pressure an individual to waive that right? There is no doubt that government officials deliberately use their power to pressure people who have been accused of crime, and who are presumed innocent, to confess their guilt and waive their right to a formal trial. We know this to be true because prosecutors freely admit that this is what they do.”

Political Nature of Judges

The appointment of Judges in this nation has always been one deeply intertwined with politics and with wealth. Thus often the most important cog in our political system, the person who is to ensure that each case is fairly adjudicated, are many times lacking in the skills and insight to do the job fairly. In those venues where Judges run for their offices, the most important factor is party endorsement. With the need for party endorsement comes the obligation to adhere to “unspoken rules”. In areas where judges are appointed, their appointment is usually beholden to the “powers that be” whether they represent political party, or local wealth. We know factually that there have been powerful efforts by the backers of ultra Conservative movements to have judges put into position that represent their political interests. I don’t believe it is a coincidence that our Constitutional protections have deteriorated severely in the last 50 or so years. While no one can really escape partisan feelings, we should be able to expect that a judge can rise above their own personal beliefs to administer the Law fairly. An expectation it seems to me has fallen far short of its mark in recent years and contributes to the breakdown of our Criminal Justice System.

Prosecution as a Career Stepping Stone  

In a system truly interested in justice the position of Prosecutor would be one of impartiality, with their actions based on the evidence and on the Law. Sadly, for most of American history this has not been the case. Many who become prosecutors do so because they understand that they could use their “record” in that office to advance their careers. Their conviction rate and their prosecuting noteworthy trials elevate their public fame. Many of today’s most prominent politicians began their legal careers as prosecutors and used their office to advance themselves. Rudy Giuliani parlayed his headline grabbing antics as a Federal Prosecutor into great wealth and a political career that made him a Presidential candidate. Yet most of the “convictions” that brought him fame and media attention were overturned at the appellate level. His grandstanding, such as the arrest of a young stockbroker accompanied by TV cameras ultimately resulted in the man’s acquittal, yet the impression of Giuliani as a “fighter for justice” remained in the people’s minds.

The other problem with the prosecutorial system is that people seeking to advance their public careers, either in politics, or in pursuit of wealth, are reluctant to target people with wealth and power. To build a career one must not make enemies of those people who you might need to call upon for aid and support in the future. I find it interesting that Bernie Madoff, who in essence stole from the rich and powerful is in prison for life, while the CEO’s of large financial institutions are not held liable for the frauds their company has admitted to and the result is that their firms are being fined trifling amounts in restitution for their admitted criminal activity.

The Ongoing Corruption of Law Enforcement

Despite what some here may believe to the contrary, I have a great deal of respect and empathy towards Law Enforcement Officers. Having worked in a large Municipal Bureaucracy for many years I can truly empathize with people who work for law enforcement bureaucracies, I believe that most people who go into law enforcement start out filled with idealism and the belief that the pursuit of justice is a noble cause. Far too many of those who made that idealistic choice have found themselves corrupted by both their fellow officers and by a politically influenced bureaucracy that robs them of their idealism. The training in many law enforcement agencies reinforces an “us vs. them” mentality, rather than putting emphasis on an officer’s duty to uphold our Constitution and our laws. There is also an undue influence of politics upon Law Enforcement Officer’s that comes down from the higher levels of the bureaucracy they represent. There is lately the increased militarization of LEO’s which leads to the notion that any orders from a “superior” are to be flowed to the letter.

There is a further factor, however, that I think leads to corruption of LEO’s. Historically in the United States Law enforcement meant the protection of the propertied class, or of White citizens against the “encroachments” of people of color and or ethnic immigrants. In the south this meant enforcement of “Jim Crow”, but is was not simply a Southern problem. Many city police departments had recruiting drives in Southern States to find officers who had gained experience enforcing “Jim Crow”. The Los Angeles PD and the Detroit PD were famous for this. In NYC the Irish immigrants went from a people disdained, to the position of prominence in a police force “controlling” the Blacks emigrating from the South, the next generation of ethnic immigrants and the Puerto Rican influx. The message disintegrating the ideals of many new police officers was merely the cynicism that arose as they saw what their “real duties” should be. Many, many refused to take part in this cynical view of enforcing the law and kept trying to fairly perform their duties, for some like Frank Serpico this almost led to his death as he was shot by a fellow officer to coverup a police run drug trafficking operation.

A third factor is that those officers who rise to the ranks of Detective and are thus the ones charged with investigating crime, are promoted into a dysfunctional system where expediency takes precedence over justice. Too often they are overloaded with “caseloads” that demand quick turnover, or they’ll see their career advancement possibilities diminished. The detective soon learns that their superiors are more interested in “clearing” cases, rather than pursuing justice. This leads even the best of detectives to have a narrow focus on who they suspect and pursue that doggedly even though other evidence might present itself.

Public Ignorance of our Criminal Justice System

While most people with some knowledge of our Criminal Justice System understand its purposes and its flaws, the general public is for the most part ignorant of the issues. While I’ve heard some elitists blame this on the level of intelligence of the general public, I don’t agree that most people lack the intelligence to understand what is at stake in our Criminal Justice System. I believe that much of the problem of the public’s lack of knowledge is twofold.

The first is that our public schools no longer spend the years of school teaching the nature of our Constitution and how our government works. My own education through high School was in public schools until graduation in the early 60’s. By the time I graduated I had a pretty complex understanding of our Constitution, of our governmental structures and of our legal system. I know though from the education of my daughters (they went to excellent public schools) that what had been so much a part of my own Civics (Social Studies) curriculum had been simplified to the point of becoming incomprehensible. The more detailed views of our Constitution and our legal system have been left to the collegiate level and unfortunately by then pre-judgments and lack of understanding a citizen’s constitutional protections have already become relatively entrenched and misconstrued.

The second basis of public ignorance of the criminal justice system comes from propaganda that sometimes is purposeful and sometimes is inadvertent. Almost 50% of our television shows are police procedurals, of various forms, which show crimes being solved and justice being handed out in the convenience of one hour, less commercial time. The portrayal is overly simplistic and creates a “good guy police/bad guy criminal” counterpoint. The overt propaganda we see on TV can be seen in the news conferences and press releases of police and prosecutors. Despite what jurors might swear to the judge, the majority of them are aware of the negative publicity regarding the defendant and have had “evidence” leaked to them via TV. By the time a defendant comes to trial in a well-publicized case many possible jurors have already made up their minds and their mindset is rigid. With these factors interacting with the views of the public, is there any cause to wonder that so much has been done to destroy our Constitutional safeguards, without widespread public protest?

These are my views of our Criminal Justice System today and to me it is “broken”. As I began this post detailing how the “McCarthy Years” shaped my outlook on criminal justice, it was done as an admission that my views today may be colored by my epiphanies back then, Since most readers of this blog are my juniors in years, without that direct experience/ remembrance of the “Cold War” excesses, perhaps you see it differently. Please express you own opinions and whether or not you see this with the same urgent mindset that I have? Also what do you think I have missed in addressing this problem?

Submitted by: Mike Spindell, guest blogger

78 thoughts on “America’s Broken Criminal Justice System”

  1. Again Mike we are thankful for the length of this article and the insights into the basic causes of some of the manifestations in our system.

    In the first part of the article there was much mention of the McCarthy era as having some of its lingering effects presently. One such example of that is in WA the Communist Party is statutorily banned. McCarthy style laws are still on the books

    Chapter 9.81 RCW: Subversive Activities

    Essentially this chapter in our state code makes it a felony to overthrow or even “alter” the constitutional government of our state or the US. Membership in a subversive organization is a felony and those convicted of such are banned from holding office or even voting.

    The statute goes one step further to then broadly declare the Communist Party to be by definition a subversive organization. The statute ordered purgings of those who at the time of the enactment of the law to disassociate themselves or face a felony charge.

    As absurd as this might seem, to this day there are no Communist Partys allowed to run in our state elections, though a somewhat idealogical analogue to this might be considered the Workers Wolrd party which has a very small presence in the state in the past. Personally I don’t see such a party getting much traction in this state but I don’t see the harm in letting them run for office, all you have to do is vote No.

    As to the LE aspect of your article you are correct for the most part of what plea bargains involve though I might add that one of the reasons for the 90% of those accepting please rather than face a jury is because more than 90% have actually committed the offense and it is a way for many defendants to avoid additional penalties as to what can be assessed against them. But there is a lot of game theory involved in these negotiations between the prosecutor and the defense and the state has all the coercive power at their disposal. Stacking charges does happen a lot in order to pump up what the defendant will settle for.

    But there is one consideration to be made. It is the problem of time and resources. In some countries a defendant will sit in jail for years just to await a trial. Frequently it is the case there where the time spent waiting for the trial is longer than what the sentence would have been. If every defendant charged went to trial the system in at least most areas I have worked would resemble a system such as this where it drags on because judges are not as freely available. One could argue that there are some glaring inefficiencies in the system but where do you draw the line as to what cust are efficiency based or are detrimental.

    In our state if a defendant accused of an assault is later found to be not guilty, the defense may request the jury, if applicable, issue a finding of Self Defense on behalf of the defendant. If the jury finds that the act was one of self defense the state is mandated to pay all of the defendant’s legal expenses. I know this has had an effect on what prosecutors bring to trial because they do not wish to pay for it out of their budget so they are more selective. I wonder if such a program was offered to any criminal defendant that is not already judged to be indigent. Maybe if the defendant had the ability to have his legal expenses paid in full if he is found not guilty that might have a balancing effect on some of the resource disparity between the state and the citizen.

    1. Darren,

      I’m astounded that Washington State has such a law. It has to be a holdover in thought from the McCarthy Era. As I’ve often admitted here during my time in the Union Movement in the late 60’s early 70’s I knew many communists of different persuasions. I was even friendly enough with some to share a social evening. My problem with them generally was that most were so dogmatic in their beliefs (think religious fundamentalist) that they had almost no chance of success recruiting on any important scale. They believed themselves to be a lot slicker than they actually were.

      “But there is one consideration to be made. It is the problem of time and resources. In some countries a defendant will sit in jail for years just to await a trial. Frequently it is the case there where the time spent waiting for the trial is longer than what the sentence would have been. If every defendant charged went to trial the system in at least most areas I have worked would resemble a system such as this where it drags on because judges are not as freely available. One could argue that there are some glaring inefficiencies in the system but where do you draw the line as to what cust are efficiency based or are detrimental.”

      You are absolutely correct about this. My point regarding it is that we don’t spend anywhere near enough on our Court System to ensure speedy trials and fair verdicts. Criminal Justice is a very important role of Government, on which all sides of the political spectrum would tend to agree, why then do we continue to underfund it?

  2. “Welch showed the effectiveness of humanity and calm reasoning against rotten bullying and bluster.”


    You are quite right and in the case of McCarthy Welch was the perfect person, at the right time, to put that bully in his place.

  3. Scrolling down from intro in email, to here. Reading further expo and comments later.

    Wish to add my experience of the same defining moment, with Welch vs McCarthy, on the radio at home. The courtly, courteous tones and choice of words and a stately delivery by Welch. In some way their purpose imprinted themselves and defined my faith in people and the ultimate justice they can deliver. I did not hear the session regarding the young man, but even earlier, Welch showed the effectiveness of humanity and calm reasoning against rotten bullying and bluster.

    I have never left that path. TGFT.

  4. Interesting and well written article Mike. I agree that our system needs to improve, but I think that our constitution has been the at the forefront (or the catalyst) of our inept system. As long as you can dehumanize a man, then you can treat him anyway you want to, because, after all,-as the logic follows-he/she is not a human. Dehumanizing a man/woman can also be in the form of labeling him or her as a 2nd class citizen (we don’t use that term any more due the political correct theories). Here are a few examples: Remember our constitution dehumanized Africans (slaves) in the 3/5s-of-a-man law set back in the 1700s; our constitution have always regarded women and African-Americans as 2nd class citizens (many women still believe that it is still “a man’s world”); our constitution continues dismiss any person born outside of the US (except O’Bama-I am only joking here)-a chance to become President of the US. And let’s not forget the US Supreme Court cases, Dredd Scott, Separate-but-equal,etc-in which the Justices cited US Constitutional law to uphold or support their decisions?

    Remember your previous blog about the ‘talented tenth’ (you used something different, but I can’t remember it) in which the elite or few will rule over the many-poor and middle class? Well, our constitution-I believe-is also for the protection, autonomy, and authentication of the elites. Hence, our flawed criminal justice system-which you accurately pointed out-is going to do the same. All you have to do is examine each flaw-in the criminal system-that you uncovered, and think how each one benefits the elite to maintain their control over the many.

  5. Mike S.,

    Thoughtful in its critique and constructive in its suggestions, this is one of your best contributions to our forum. (We can handle long posts. 😉 )

    I also agree with the points Beverelliee raised as I know many fine teachers, LEO’s, judges, and prosecutors but their complaints are the same as yours. The system is broken and does seem to be beyond repair so they struggle to maintain integrity in the face of petty lawlessness and apathy.

  6. This is a great article and I agree with everything in it.

    An additional point is judicial ignoring of Rule 608 of the Rules of Evidence. In 2004, a magistrate judge wrote a recommendation saying that he thought I had engaged in abusive litigation. The fact is that there are only two ways to engage in abusive litigation. One is to ignore discovery orders and I couldn’t have done that because in my litigation no answer was ever filed so therefore there was no discovery, and no discovery orders. The other is to file something that is dishonest. I don’t have a criminal record. If there is no criminal record, Rule 608 prohibits the entry of extrinsic character evidence of dishonesty, meaning evidence that doesn’t come for the person. So in order to have admissible evidence of dishonesty, they would have had to either get me to admit to being dishonest, which I didn’t do, find that I misquoted something, or find that I filed two statements that were contradictory. No one even alleged that I had misquoted anything or filed two statements that were contradictory. So there is no extrinsic evidence of untruthfulness on my part. Yet probably a dozen federal judges have written that I engaged in abusive litigation and because of this DOJ imprisoned me for 5 months with no evidentiary hearing, bail hearing, or charge that I broke a law and I was ordered to pay over $100,000 which started a chain of events that resulted in my losing my home and business.

    Two different DOJ assistant U.S. attorneys filed in federal court that I engaged in abusive litigation even though Rule 608 prohibited them from filing that. Two other DOJ assistant U.S. attorneys knew that the first two had filed that I had engaged in abusive litigation even though there was no admissible evidence of that and failed to withdraw or correct those statements. So then after I figured this out I sent in two motions pointing that out to my current federal lawsuit against DOJ in the District of Columbia 11-cv-01032 and Judge John D. Bates, who is highly respected and a Presbyterian, refused to let these motions appear in PACER. One was a Rule 201 motion and one was a tolling Rule 52b / 60 motion. I have FEDEX proof of delivery for both. The first was tracking number 794255082406 and signed for by A.Dickens on 12/11/12. The second was tracking number 794516559365 and signed for by .Ragosa on 1/16/2013.
    The reason I have included these details is that someone else may want to use the information that U.S. Courts does not always allow the filing of motions. Apparently U.S. Courts has unpublished rules to inhibit the litigation efforts of pro se litigants. It is worth noting that probably 99% of all people who are criminally convicted and then attempt to challenge their convictions do so as pro se litigants. An example is Brandon Moon who spent 18 years in jail for a rape he didn’t commit. He was the only blue eyed man in the line up which was 18 months after the rape. He challenged the eye witness identification procedure multiple times as a pro se litigant but was repeatedly denied the obvious finding that the procedure was unreliable until he could get the Innocence Project to take his case. The Innocence Project doesn’t have the funds to handle most applicants and they don’t take cases in which the person was coerced to plea bargain or which don’t involve long terms and DNA evidence.

    Thus the rights of pro se litigants are an important part of the issue in America’s Broken Criminal Justice System. These rights are hard to establish because many lawyers on principle won’t defend the rights of former pro se litigants. In fact, I put a lot of information about pro se rights onto Wikipedia’s website on pro se litigation and 90% of it was deleted. One of the deletions was the experience of Brandon Moon, which I had supported with a New York Times article.

  7. Thanks for this, Mike.

    It is indeed hard to encapsulate the deterioration of any aspect of our public life, whether it’s the judicial system or some other. But I agree that the flaws in the judicial system are crucial.

    One aspect I see for this deterioration, and it applies widely, is the shift in public debate and accountability to an increasingly ideaologicially based one. Taking roughly just the past half century we have seen the fear and catharsis generated by the “communist scare”, perhaps an actual geopolitical threat, but one that was used to squelch the liberties and rights of many outspoken advocates of democratic principles.

    A reaction, though not linear came in the 60’s with the advent of principled left wing opposition to the militaristic extension of US power and a governmental suppression of the opposition. This awakened and invigorated the right wing, cultist faction of the conservative movement, a movement largely within the normal spectrum of American politics until then.

    Gaining ascendancy by continually and vigorously waving the flag, the result was a continuing rightward drift in the lingua franc of political discourse that sought power and safety in militarist, jingoist stance, in words and action. Gone since then, except for occasional lip service, has been the acknowledgement of the obligation of the US to act in accordance with a beneficent social compact domestically, and as an honorable nation internationally, respected for it’s goodness more than it’s raw power.

    The acceptance, mudh enhanced by a cowardly and bought media, of the cult of right wing excess has virtually eliminated meaningful advocacy for the compassionate ideal of our nation. The attacks of 911 kicked the transformation up another notch. I am waiting for the cusp to appear where the cycles may reverse. I don’t see much evidence of that.

  8. Great article, thank you for it!

    The criminal justice system is FUBAR. So is the rest of it. And there will be no revolution and there will be no other remedy either. And worst of all, a fair number of us actually deserve what is coming.

  9. “You seem to lump groups together stating that public schools do this, idealistic recruits become jaded, prosecutor positions become stepping stones, etc.

    I’ve known excellent history teachers who taught civics well, yet most of the students had more interest in their new iPhone than in learning. I’ve known state troopers in the beginning of their careers and at the end who were just as dedicated to serving the people as the day they started. I must admit that most of the lawyers I’ve known were more interested in the all-mighty dollar and ego than serving society. Perhaps I just know the wrong lawyers.”


    Thank you for your kind praise. I understand your critique and agree with the fact that there are excellent teachers and LEO’s, who maintain their excellence and integrity throughout their careers. I believe this is also true for all areas of the legal profession as exemplified by Jonathan Turley, our host.

    When I talk of “under funding” the legal system I’m aware that intrinsic to that is pressures being put on Judges and Prosecutors to expedite their cases and so they are not entirely to blame for the shortcuts they use When I talked about LEO’s I opened with:

    “Despite what some here may believe to the contrary, I have a great deal of respect and empathy towards Law Enforcement Officers.”

    I went on to explain the deleterious effects of the bureaucracy and the “system” in setting many officers off track.

    The central argument I made, because I believe it is representative of all the ills of the “broken” system, was about “plea bargaining”. You will note that I used the long quotation from the Cato Institute, to make my point. Because Cato is generally quite conservative, if not Libertarian, I chose them to reinforce that this blog was not a partisan piece, since I think the guilt for the breakage falls on all parts of the political spectrum equally.

    The problem I had in writing this was the broadness of the issue. This is the longest blog post I’ve written at over 3,500 words. It ranks then with some of the longest posts written on this blog. I really believe that this post was perhaps too long for this forum, since many readers seem to prefer brevity, as I do myself at times. Everything I write here, whether people like it or not, comes from my own passion and belief. However, my aim is not to persuade because the quality of the readership of this blog is such that they will always make up their own minds. My purpose is then always to elicit lively discussion and viewpoints from which I and other readers can further educate ourselves. In the years I’ve been a regular here I am still amazed by how much I learn from reading it and commenting each day.

  10. I’m not a lawyer, but come from a family where many of my relatives are, both cousins and second cousins. With one exception, I’ve found them turn from loving individuals into self-absorbed, self-righteous, arrogant jerks. I have never cracked open one law book, yet I’ve argued one into submission; not because he admitted to it, but because the facts proved to be on my side. I shudder to think of him in a courtroom.

  11. Beverelliee,

    Exceptions are not rules.

    Mike S has written this post in a general narrative form.

    His scope necessarily requires the observation of general trends, which does not rule out the exceptions you point out.

  12. A well written and informative article. Thank you.

    I do however, take exception to something you’ve done in this article. It is something that most people do without a second thought. You seem to lump groups together stating that public schools do this, idealistic recruits become jaded, prosecutor positions become stepping stones, etc.

    I’ve known excellent history teachers who taught civics well, yet most of the students had more interest in their new iPhone than in learning. I’ve known state troopers in the beginning of their careers and at the end who were just as dedicated to serving the people as the day they started. I must admit that most of the lawyers I’ve known were more interested in the all-mighty dollar and ego than serving society. Perhaps I just know the wrong lawyers.

  13. It will be the rapaciousness of those within the American justice system whose souls were lost to the cold institutionalized overwhelming amorality of the hierarchical bureaucratic State that accelerates our civilizations rapid decline into tyranny. An institutionalized system of command and obey, of absolutes without room for humanity, results in a State without empathy-and the only drive being that of power. We are well past the event horizon..the people will eventually revolt.

  14. I think you have seen it as it is Mike S.

    I would add, to further support that notion, that our forefathers saw it that way too.

    They labored, as we do, in an imperfect and impared culture.

    Thus, the original constitution was infirm, in that, it allowed slavery to continue.

    Yet, it also had within itself a way to self correct, which has been used at times to correct our wrong ways, slavery being one example.

    The prime wordsmith, who is called the “Father of the Constitution”, James Madison, counselled us about a toxin that would destroy it all if it was allowed to become improperly used:

    Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied: and all the means of seducing the minds, are added to those of subduing the force, of the people. The same malignant aspect in republicanism may be traced in the inequality of fortunes, and the opportunities of fraud, growing out of a state of war, and in the degeneracy of manners and of morals, engendered by both. No nation could preserve its freedom in the midst of continual warfare. Those truths are well established.

    (The Greatest Source Of Power Toxins?, quoting Madison). Your post indicates that you sense an evolution from left to right, in the sense of an erosion of the freedom contained in traditional American values “in the last 50 or so years.”

    To me, that supports president, congressman, cabinent member, and constitutional author Madison’s hypothesis.

    Science moves along by the use of hypothesis, which requires provable assertions and prediction.

    Einstein, in furtherance of one of this hypotheses, predicted that a star that was, by straight-line sight, physicaly behind the Sun at a given time, would be visible because space is curved by gravity around heavenly bodies like stars and planets.

    His prediction was proven true.

    Likewise, Madison predicted that warmongering “develops the germ of every other” threat to public liberty.

    To test his hypothesis, when we see an increase in warmongering — e.g. the longest wars in our history — do we see an erosion of our public liberties?

    Do we see the executive branch growing in power into “The Commander In Chief”, do we see that “War parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few“?

    You mentioned propaganda as one “basis of public ignorance of the criminal justice system”.

    Do we see, then, that  “In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied: and all the means of seducing the minds, are added to those of subduing the force, of the people” is further support for the prediction in Madison’s hypothesis?

    Do we also see “The same malignant aspect … in the inequality of fortunes, and the opportunities of fraud, growing out of a state of war, and in the degeneracy of manners and of morals, engendered by both” as he foresaw?

    The criminal justice system you decry, for its having degenerated, is not the end of the matter — if Madison’s hypothesis is valid — because the final prediction in his hypothesis is: “No nation could preserve its freedom in the midst of continual warfare.”

    That means that the degeneration of the criminal system is one degeneration along the road of utter loss of freedom.

    Warmongering goes or the nation goes, is the bottom line.

    “Those truths are well established” concludes Madison.

  15. The military court martial system and those who imprison and torture human beings BEFORE trial, conviction and sentencing, and lock them up for three years before trial are a fraud and a systemic human rights system which needs to be prosecuted in the same way we prosecuted the judicial actors from Nazi Germany in The Judges’ Trial at Nuremberg. Google: The Judges Trial at Nuremburg. The Bradley Manning case consists of several crimes. The sleep deprivation torture crime is such that the perps be charged with Capital Offenses and if convicted be sentenced to death. They should be held naked, shivering in their cells until the sentence is carried out.

  16. It is rare when a person has the moral integrity to stand up to stupid. All to often, they gather round in a circle kicking them while they are down. Welch is a rare breed, maintaining dignity while being direct. I can certainly learn something from this Mike S…..

  17. Agreed.

    Part of the problem is television.

    Watch “Law & Order”; citizens rights are routinely violated in the pursuit of “Justice” and the public has come to believe that such behavior is right and proper.

    The criminal justice apparatus is self perpetuating; prosecutors and judges will continue to charge/try people as long as there is funding for their jobs. With the myriad of laws (and a constant stream of new “crimes” being added weekly) they have plenty of fodder.

    Bottom line; we all know that the system is unfair and we keep our heads down hoping that we will be overlooked.

    American citizens are like sheep – we graze while hoping that the judicial wolf will take one of our neighbors.

  18. Great job Mike. I have to agree that the system is injured and needs help. I think that if a plea bargain is done without the overcharging process, it can be a useful tool in the system. However, I don’t know if the overcharging can be addressed without the legislature putting the power back into the hands of the judges. Of course, that can lead to abuses by the judges. There is no panacea, but the public defender offices need to be upgraded in salaries and staff to give the indigent defendants a true chance at justice.

  19. It’s kind of like Lance Armstrong admitting thus:

    CNN: “The fairy tale of a cancer survivor who won the Tour de France a record seven times has metamorphosed into a parable about telling a lie.”

    And thus it is that American has become one big fat act of fraud too? And of course it is, from Wall Street to the FDIC to the US manipulate of the members of the UN for selfish illegal interest that benefit ONLY governmet mafia members and not people in general. The US, no longer regulated by law of any justness or fairness but by acts only of deprivation. American will fall, indeed I see now that she must fall, because there is nothing worth savaging here, nothing to slavage because nobody willfully wants to salvage acts of repeated fraud and lies. Brace yourselves, because this decline is coming faster than you know.

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