Comment on the Nature and State of the (US) Justice System

While writing the latest post about Jack McCullough‘s exoneration, and while reading Courtney Bisbee‘s latest filing with the US District Court for Arizona, I got to reflecting on my experiences with the justice system over the past eight years, and I thought I would share some of my (unvarnished) observations. Clearly, this will be very editorial. It will probably help to understand my comments to know that I am not an attorney. I am an engineer by training, and that’s what I did for my entire working career – until I started doing innocence work pro bono. So I see the justice system with the naivete’ of someone who is an “outsider” and is not a functionary of the system; but I do see the system as someone who has spent his entire life founded in objective truth and logic and fact. Again, this article will be editorial in nature, and represents my views and only my views. It will also be pretty bleak; however, I see no viable path to fixing the monster we’ve created over the course of multiple decades of politics and the frailties of human nature. This has been bottled up inside me for some time, and the cork has finally popped. And just for reference, my definition of the justice system includes the law, legislators, judges, prosecutors, defense attorneys, and the police.

The justice system is supposed to be about facts, logic, truth, and reason; and seeing that “justice” is done. But my observation has been that the justice system is largely revenge-based, and when people can use the justice system to satisfy the unfortunate, dismal human craving for revenge, they will. When people say “I want justice,” what they’re really saying is “I want revenge” – based upon their personal  (and largely biased) belief about what they have convinced themselves happened, regardless of the actual evidence. And once that craving for revenge has been “satisfied,” people will spare no effort or energy to preserve it; even though the person being punished turns out to be demonstrably innocent. I think it would be more accurate to call the system the “punishment system” or the “revenge system” rather than the “justice system.” It’s no secret that prosecutors will play to the emotions and biases of a jury, turning the courtroom into little more than “theater;” and they do it because … it works, sad to say. It goes way beyond facts, logic, and truth; it’s about pushing the “emotional buttons” of the jury, because they want to win. The political and adversarial nature of the justice system places a high premium on “winning.” The justice system lacks the process protections necessary to insulate itself from the foibles, frailties, and shortcomings of human nature, particularly in a system which is primarily politically driven – like the justice system. The business world figured this out long ago. If you want to make decisions based upon logic, reason, and truth, you have to eliminate the factors of human nature that contaminate the logical decision making process. These regrettable factors of human nature include pride, ego, jealousy, ambition, hate, bigotry, bias, love, lust, greed, arrogance, and on and on. They’re always there – it’s just part of the human condition, and nobody – not police, not prosecutors, not judges, not juries, not legislators – is immune. Probably the most pernicious of human frailties and bias that influences the justice system is politics. Prosecutors, judges, coroners, sheriffs, and legislators are all elected political officials, and this places dangerous incentives on their performance of their jobs, because “Job 1” for any elected politician is to get re-elected; not serve justice. Politics has putrified the justice system – and you can quote me on that. And the justice system certainly has no processes to insulate it from politics.

Now please don’t confuse “process” with “procedure.” For more on process, please see our previous post about Six Sigma and the law here. Process is figuring out the best way to do something, and then making sure you do it that way every time, and also eliminating the vagaries and variability of human bias. And even more importantly, process is recognizing when you’ve done something wrong, and then using that information to change the way you do things in the future so you don’t do it wrong again. The justice system has lots and lots of “procedures,” which are really just rules for what you have to do and when, and in many cases they have nothing to do with the facts or truth. Legal proceedings can be subject to all manner of “procedural bars;” meaning you didn’t do something according to the rules, so your motion or pleading gets dismissed, and you’re just out of luck – even though you’re actually innocent. Or, procedural rules may be used to keep relevant evidence from being presented at trial. Prosecutors will commonly use “procedural” issues to fight against overturning a conviction, regardless of whether or not the defendant is innocent. Just as an example – in an attempt to overturn a wrongful conviction, new exculpatory evidence, which could prove the defendant innocent, can be eliminated from consideration if the judge rules that it was “discoverable” at time of original trial. How ’bout that? I’ve personally seen this happen.

Not only is the legal/justice system vulnerable to all manner of human frailty, but when the system gets something wrong, not only will it generally refuse to recognize and admit that, but there is also no systemic mechanism to effect changes to make sure that it doesn’t happen again. It’s just …. on to the next wrongful conviction. The same kinds of errors keep happening over and over.  In business, at the end of a “project,” it’s common to conduct a formal “post mortem” review for the project, with the objective of determining what should have been done differently, and putting plans into action to make the necessary changes. At the end of a trial, who sits down and says, “OK, what should have been done differently?” – nobody. And on top of that, there is no comprehensive documentation of the deficiencies that could be amalgamated into data to actually change the body of the law so things like wrongful convictions happen less and less. Do I have any hope or expectation that any of this can or will change for the better? Not with the current political nature of the system. The “law” never gets smaller, simpler, or easier. It only gets bigger, more intricate, more complex, and more arcane; with the result that the “law” has become an end unto itself with greater emphasis on procedure and perpetuating the system than on getting it right. It’s no wonder that even the lawyers can get it wrong, which they do.

Just three examples of how the system perpetuates its misdeeds. First, when a prosecutor withholds exculpatory evidence (a Brady violation) to gain a conviction, what happens to the prosecutor when the defendant is later found to be actually innocent? NOTHING! When the police coerce a false confession out of someone to gain a conviction, what happens to the police when the defendant is later found to be actually innocent? NOTHING! Or how about when a prosecutor pays a snitch for testimony to get a conviction, and the defendant is later found actually innocent. What happens to the prosecutor or the snitch? NOTHING! The agents of the system suffer no consequence for what should be classified as criminal acts. It’s no wonder the system never gets any better.

I do have fervent hope, however, that the National Registry of Exonerations will one day be able to provide sufficient hard data necessary to get legislators to actually fix some of what’s wrong; but I have no hope that will be in my lifetime. With the justice system designed to make overturning wrongful convictions so incredibly difficult, most wrongful convictions don’t get overturned. Consequently, the wrongful convictions that have happened, but don’t get overturned, are not included in the data. This is why the National Registry of Exonerations represents only the tip of the iceberg of wrongful convictions.

After a few years of doing innocence work, and hoping that it might somehow help fix the justice system, I came to characterize it as like being in a canoe with a paddle trying to turn an aircraft carrier. But over the years, my opinion of that has changed. We have no paddle. There is no canoe. We’re just naked in the water. Over the past eight years, I have had the honor and the pleasure to work with many wonderful, smart, dedicated people who work diligently and doggedly for years on case after case after case to right wrongful convictions. It’s difficult, tedious, heart-breaking work. Every once in a while they will succeed, but mostly they don’t, because they’re working against a system that has been designed to prevent overturning a (wrongful) conviction. But when they do succeed, and expose a wrongful conviction, does that trigger any change in the system or expose unethical or misbehaving officials to sanctions? Of course not. The system is actually designed to deflect that, and the system will fight “tooth & nail” to keep from having to acknowledge that it made a mistake. That resistance to acknowledging error is supposedly about what the system calls “finality” (which it treasures), but I suggest it’s mostly about saving face.

The justice system actually works quite well, IF you define “well” as expediently convicting people and putting them in prison – almost always by coerced plea agreement. The issues with the current system are accuracy of convictions and fairness in sentencing. Did the system get the conviction right, and once convicted, does the sentence really reflect the nature and severity of the crime? I’m afraid both these questions leave the system wanting. Because I’ve been so recently involved in it, and written about it, I once again raise the example of the Courtney Bisbee case. Here is a woman who was wrongfully convicted of improperly “touching” a teen (through clothing), and was sentenced to 11 years. Both Debra LaFave (Florida) and Mary Kay Letourneau (Washington) received much less harsh punishment than that, and they both admitted to having actual sex, multiple times, with a teen. How screwed up can the system get? And this is just one example.

The evidence of the failures of the justice system abounds, and you can read about a lot of it right here on this blog. Or just take a look at the National Registry of Exonerations, which by the way, represents just the tiniest tip of the iceberg in terms of the actual number of wrongful convictions. You have to ask yourself – how can this kind of stuff just continue to go on for so long without doing something to make it better? Will the system ever be perfect? No, of course not; but it could be orders of magnitude more accurate, correct, and just than it is. If only we could push past the politics and the myriad shortcomings of human nature to put systems and processes in place to incrementally and continuously correct the errors when they happen. The first step to a solution is admitting you have a problem, but there are only isolated members of the system who seem to truly grasp this. Plus, the current system has become so monstrous, and there are so many highly influential and powerful people so deeply invested in it, I would give substantive, meaningful change the proverbial “snowball’s chance.”

If the justice system is supposed to be about fact, logic, truth, reason, and justice, I contend that it is fundamentally flawed – by design. As long as politics and the frailties of human nature reign supreme in the justice system, it will continue to systematically produce wrongful convictions. The changes that need to happen are fundamental and sweeping, but there’s a classic argument within the legal community against fundamental change – that is, it would “open the floodgates of litigation,” and overwhelm the courts. So …. does that mean we should keep putting innocent people in prison, because it would be inconvenient to fix the real problems? I say, “Open up those flood gates.”

So, what’s the bottom line? I’m afraid we’re stuck with it. We can continue to tinker around with politically driven legislation, and beat our brains out trying to rectify one wrongful conviction at a time; but I have absolutely no hope that what really needs to happen will ever happen. In fact, my scanning of the legislative environment indicates to me that things are actually going in the wrong direction.  Just for example, sex offender laws continue to get ever more bizarrely unfair and draconian (the International Megan’s Law is just one example); the Supreme Court over the last 20 years has gutted habeas corpus; the Antiterrorism and Effective Death Penalty Act (AEDPA) limits rights of appeal; and I see no possibility that the political nature of the justice system will ever be scrapped. And on and on.

You are perfectly welcome to call me a “nay sayer”or a prophet of doom & gloom, or to say I’m being way too negative; but, as I’ve said before, I only report what I observe.     Sorry.