UNITED STATES LEGAL SYSTEM
The Justice System in America is Broken
America has a criminal-justice system that treats you better if you’re rich and guilty than if you’re poor and innocent. America’s system is not shaped by culpability, but by wealth. The poor are very vulnerable in a system that relies so heavily on skilled advocates, then doesn’t provide skilled advocates. Until recently, court appointed lawyers in Alabama could only be paid $1,000 for their out-of-court time. A lawyer could make more defending a traffic ticket than a capital case.
1 in 3 black men in the US under 30 is in jail, on probation or on parole. A newer statistic, and even more astonishing, is that 1 in 3 black males born in 2001 is expected to go to jail or prison during their lifetimes. This is the future. And 1 in 6 Latino boys. That wasn’t true in the 20th century.
For people to say “It’s easy to not go to jail – don’t commit a crime.” is very naïve. In America there is a presumption of guilt that follows young kids of color so then even when they haven’t done anything, they get stopped, and if they don’t manage those confrontations, they get arrested. Also, they are more likely to go to prison for doing something lots of kids do. Black kids make up 18% of the people arrested on drug-possession charges, 36% of those convicted and 55% of the people sent to prison.
For people on death row, even when it has been shown that they’re innocent, concessions are made where they plead to something just to get out of prison, because the system is so unreliable. The question with the death penalty is, Do we deserve to kill? Do we have a system of justice that functions free of bias, free of political influences, doesn’t make mistakes? The answer is no.
There are 14 states with no minimum age for trying a child as an adult. 10-year olds are being prosecuted as adults. They are put in an adult jail. They get targeted for abuse, rape and assault. It’s so unnecessary – there are juvenile facilities. No one defends it, yet there are still 10,000 children in an adult jail or prison. This may be the most inhumane part of the US justice system and its indifference that allows it to continue.
Corporations that build prisons have corrupted American criminal justice by creating perverse incentives where they actually pay legislators to create new crimes so they can maintain the record-high-level rates of imprisonment. These companies spend millions of dollars a year on lobbying to fight reforms that will bring down the prison population. Prison spending has gone from $6 billion in 1980 to $80 billion today. Those dollars are coming from education, health and human services, and roads.
The United States legal system is the full interconnected system of judicial, regulatory and governmental authorities who together administer and enforce the laws of the United States, operate the judicial system, and resolve judicial disputes and appeals. It consists of various official bodies at the federal, state and local levels.
Various official bodies
Federal courts address any legal issues covered by the statutes of the United States Code. They also hear any case falling under the jurisdiction of federal agencies. For example, this includes any crime in which a state boundary is crossed, which would then be handled by the FBI. The federal court system is made up of several levels of hierarchical court. The top-level court is the United States Supreme Court. Below this are the District Court of Appeals. Below this are the United States District Courts, for various geographical areas as defined by the United States Congress.
State courts take a wide variety of forms, as defined by each state’s legislature. For example, in New York, there is a Supreme Court which is actually the lowest-level trial court; its name is based on the fact that it is higher ranked than all administrative and local courts. The highest court in New York is the New York Court of Appeals.
A wide variety of governmental agencies have the power to enact regulations and to enforce them. There are many examples. For examples, the SEC regulates the financial sector. The FAA regulates all air travel. In local communities, city agencies often regulate building codes and zoning laws.
Chances of being found not guilty
Statistics show that defendants are rarely found ‘Not Guilty’ by judges and juries. This may be because of the law of double jeopardy, which prohibits the defendant from being brought to court again on the same charges. Typically if a case is unlikely to result in successful prosecution in court, the defendant is offered a plea bargain or the case may even be dismissed by the district attorney or judge. For example, in 2009, of the 167,209 adults arrested for felony charges in New York State, only 663 people were acquitted (about 0.4%) Over 100,000 were convicted – but many of those pled out to lower charges (only about 35,923 were convicted of a felony despite the initial arrest). Most of the rest were dismissed (sometimes upon completion of some kind of rehab program).
LAW OF THE UNITED STATES
The law of the United States consists of many levels of codified and uncodified forms of law, of which the most important is the United States Constitution, the foundation of the federal government of the United States. The Constitution sets out the boundaries of federal law, which consists of constitutional acts of Congress, constitutional treaties ratified by Senate constitutional regulations promulgated by the executive branch, and case law originating from the federal judiciary.
The Constitution and federal law are the supreme law of the land, thus preempting conflicting state and territorial laws in the fifty U.S. states and in the territories. However, the scope of federal preemption is limited, because the scope of federal power is itself rather limited. In the unique dual-sovereign system of American federalism (actually tripartite because of the presence of Indian reservations), states are the plenary sovereigns, while the federal sovereign possesses only the limited supreme authority enumerated in the Constitution. Indeed, states may grant their citizens broader rights than the federal Constitution as long as they do not infringe on any federal constitutional rights. Thus, most U.S. law (especially the actual “living law” of contract, tort, property, criminal, and family law experienced by the majority of citizens on a day-to-day basis) consists primarily of state law, which can and does vary greatly from one state to the next.
At both the federal and state levels, the law of the United States was originally largely derived from the common law system of English law, which was in force at the time of the Revolutionary War. However, U.S. law has diverged greatly from its English ancestor both in terms of substance and procedure, and has incorporated a number of civil law innovations.
Sources of law
In the United States, the law is derived from various sources. These sources are constitutional law, statutory law, treaties, administrative regulations, and the common law (which includes case law).
Where Congress enacts a statute that conflicts with the Constitution, the Supreme Court may find that law unconstitutional and declare it invalid.
Notably, a statute does not disappear automatically merely because it has been found unconstitutional; it must be deleted by a subsequent statute. Many federal and state statutes have remained on the books for decades after they were ruled to be unconstitutional. However, under the principle of stare decisis, no sensible lower court will enforce an unconstitutional statute, and any court that does so will be reversed by the Supreme Court. Conversely, any court that refuses to enforce a constitutional statute (where such constitutionality has been expressly established in prior cases) will risk reversal by the Supreme Court.
American common law
The United States and most Commonwealth countries are heirs to the common law legal tradition of English law. Certain practices traditionally allowed under English common law were expressly outlawed by the Constitution, such as bills of attainder and general search warrants.
As common law courts, U.S. courts have inherited the principle of stare decisis. American judges, like common law judges elsewhere, not only apply the law, they also make the law, to the extent that their decisions in the cases before them become precedent for decisions in future cases.
The actual substance of English law was formally “received” into the United States in several ways. First, all U.S. states except Louisiana have enacted “reception statutes” which generally state that the common law of England (particularly judge-made law) is the law of the state to the extent that it is not repugnant to domestic law or indigenous conditions. Some reception statutes impose a specific cutoff date for reception, such as the date of a colony’s founding, while others are deliberately vague. Thus, contemporary U.S. courts often cite pre-Revolution cases when discussing the evolution of an ancient judge-made common law principle into its modern form, such as the heightened duty of care traditionally imposed upon common carriers.
Second, a small number of important British statutes in effect at the time of the Revolution have been independently reenacted by U.S. states. Two examples that many lawyers will recognize are the Statute of Frauds (still widely known in the U.S. by that name) and the Statute of 13 Elizabeth (the ancestor of the Uniform Fraudulent Transfers Act). Such English statutes are still regularly cited in contemporary American cases interpreting their modern American descendants.
However, it is important to understand that despite the presence of reception statutes, much of contemporary American common law has diverged significantly from English common law. The reason is that although the courts of the various Commonwealth nations are often influenced by each other’s rulings, American courts rarely follow post-Revolution Commonwealth rulings unless there is no American ruling on point, the facts and law at issue are nearly identical, and the reasoning is strongly persuasive.
Levels of law
Federal law originates with the Constitution, which gives Congress the power to enact statutes for certain limited purposes like regulating interstate commerce. Nearly all statutes have been codified in the United States Code. Many statutes give executive branch agencies the power to create regulations, which are published in the Federal Register and codified into the Code of Federal Regulations. Regulations generally also carry the force of law under the Chevron doctrine. Many lawsuits turn on the meaning of a federal statute or regulation, and judicial interpretations of such meaning carry legal force under the principle of stare decisis.
In the beginning, federal law traditionally focused on areas where there was an express grant of power to the federal government in the federal Constitution, like the military, money, foreign affairs (especially international treaties), tariffs, intellectual property (specifically patents and copyrights), and mail. Since the start of the 20th century, aggressive interpretations of the Commerce and Spending Clauses of the Constitution have enabled federal law to expand into areas like aviation, telecommunications, railroads, pharmaceuticals, antitrust, and trademarks. In some areas, like aviation and railroads, the federal government has developed a comprehensive scheme that preempts virtually all state law, while in others, like family law, a relatively small number of federal statutes (generally covering interstate and international situations) interacts with a much larger body of state law. In areas like antitrust, trademark, and employment law, there are powerful laws at both the federal and state levels that coexist with each other. In a handful of areas like insurance, Congress has enacted laws expressly refusing to regulate them as long as the states have laws regulating them.
Under the doctrine of Erie Railroad Co. v. Tompkins (1938), there is no general federal common law. Although federal courts can create federal common law in the form of case law, such law must be linked one way or another to the interpretation of a particular federal constitutional provision, statute, or regulation (which in turn was enacted as part of the Constitution or after). Federal courts lack the plenary power possessed by state courts to simply make up law, which the latter are able to do in the absence of constitutional or statutory provisions replacing the common law. Only in a few narrow limited areas, like maritime law, has the Constitution expressly authorized the continuation of English common law at the federal level (meaning that in those areas federal courts can continue to make law as they see fit, subject to the limitations of stare decisis).
The other major implication of the Erie doctrine is that federal courts cannot dictate the content of state law when there is no federal issue (and thus no federal supremacy issue) in a case. When hearing claims under state law pursuant to diversity jurisdiction, federal trial courts must apply the statutory and decisional law of the state in which they sit, as if they were a court of that state, even if they believe that the relevant state law is irrational or just bad public policy. And under Erie, deference is one-way only: state courts are not bound by federal interpretations of state law.
If this was not confusing enough, state courts are not bound to follow judicial interpretations of federal law from the federal courts that sit in a state, including federal courts of appeals and district courts (that is, the intermediate appellate courts and trial courts). There is only one federal court that binds all state courts as to the interpretation of federal law and the federal Constitution: the U.S. Supreme Court itself.
Federal statutory enactment and codification
Federal regulatory promulgation and codification
Congress often enacts statutes that grant broad rulemaking authority to federal agencies. Often, Congress is simply too gridlocked to draft detailed statutes that explain how the agency should react to every possible situation, or Congress believes the agency’s technical specialists are best equipped to deal with particular fact situations as they arise. Therefore, federal agencies are authorized to promulgate regulations. Under the principle of Chevron deference, regulations normally carry the force of law as long as they are based on a reasonable interpretation of the relevant statutes.
Besides regulations formally promulgated under the APA, federal agencies also frequently promulgate an enormous amount of forms, manuals, policy statements, letters, and rulings. These documents may be considered by a court as persuasive authority as to how a particular statute or regulation may be interpreted, but are not entitled to Chevron deference.
The fifty American states are separate sovereigns with their own state constitutions, state governments, and state courts (including state supreme courts). They retain plenary power to make laws covering anything not preempted by the federal Constitution, federal statutes, or international treaties ratified by the federal Senate. Normally, state supreme courts are the final interpreters of state constitutions and state law, unless their interpretation itself presents a federal issue, in which case a decision may be appealed to the U.S. Supreme Court by way of a petition for writ of certiorari.
Most cases are litigated in state courts and involve claims and defenses under state laws. Each year, only about 280,000 civil and criminal cases are heard in federal courts, as opposed to 27.5 million civil and criminal cases in state courts (these numbers exclude 858,000 federal bankruptcy cases, and in state courts, 4.5 million domestic, 1.7 million juvenile, and 55 million traffic cases).
The law of most of the states is based on the common law of England; the notable exception is Louisiana, whose civil law is largely based upon French and Spanish law. The passage of time has led to state courts and legislatures expanding, overruling, or modifying the common law; as a result, the laws of any given state invariably differ from the laws of its sister states. Thus, with regard to the vast majority of areas of the law that are traditionally managed by the states, the United States cannot be regarded as one legal system, but must be regarded as 50 separate systems of tort law, family law, property law, contract law, criminal law, and so on
A typical example of the mind-boggling diversity of contemporary state law is the legal test for finding a duty of care, the first element required to proceed with a lawsuit for negligence (the basis for most personal injury lawsuits). A 2011 article found that 43 states use a multifactor balancing test usually consisting of four to eight factors, but there are 23 various incarnations because so few states use exactly the same test, and consolidating those into a single list results in 42 unique factors. Naturally, the laws of different states frequently come into conflict with each other, which has given rise to a huge body of law regulating the conflict of laws in the United States.
States have delegated lawmaking powers to thousands of agencies, townships, counties, cities, and special districts. And all the state constitutions, statutes and regulations (as well as all the ordinances and regulations promulgated by local entities) are subject to judicial interpretation like their federal counterparts.
It is common for residents of major U.S. metropolitan areas to live under six or more layers of special districts as well as a town or city, and a county or township (in addition to the federal and state governments
Types of law
Traditionally, lawyers distinguish between procedural law (which controls the procedure followed by courts and parties to legal cases) and substantive law (which is what most people think of as law). In turn, procedural law is divided into criminal procedure and civil procedure.
The law of criminal procedure in the United States consists of a massive overlay of federal constitutional case law interwoven with the federal and state statutes that actually provide the foundation for the creation and operation of law enforcement agencies and prison systems as well as the proceedings in criminal trials. The exclusionary rule spawned a family of judge-made remedies for the abuse of law enforcement powers, of which the most famous is the Miranda warning. The writ of habeas corpus is often used by suspects and convicts to challenge their detention, while the Civil Rights Act of 1871 and Bivens actions are used by suspects to recover tort damages for police brutality.
The law of civil procedure governs process in all judicial proceedings involving lawsuits between private parties. Generally, American civil procedure has several notable features, including extensive pretrial discovery, heavy reliance on live testimony obtained at deposition or elicited in front of a jury, and aggressive pretrial “law and motion” practice designed to result in a pretrial disposition (that is, summary judgment) or a settlement. Another unique feature is the so-called American Rule under which parties generally bear their own attorneys’ fees (as opposed to the English Rule of “loser pays”), though American legislators and courts have carved out numerous exceptions.
Substantive law comprises the actual “substance” of the law; that is, the law that defines legally enforceable rights and duties, and what wrongful acts amount to violations of those rights and duties. Substantive law by definition is enormous.
Criminal law involves the prosecution by the state of wrongful acts which are considered to be so serious that they are a breach of the sovereign’s peace (and cannot be deterred or remedied by mere lawsuits between private parties). Generally, crimes can result in incarceration, but torts (see below) cannot. The majority of the crimes committed in the United States are prosecuted and punished at the state level. Federal criminal law focuses on areas specifically relevant to the federal government like evading payment of federal income tax, mail theft, or physical attacks on federal officials, as well as interstate crimes like drug trafficking and wire fraud.
All states have somewhat similar laws in regard to “higher crimes” (or felonies), such as murder and rape, although penalties for these crimes may vary from state to state. Capital punishment is permitted in some states but not others. Three strikes laws in certain states impose harsh penalties on repeat offenders.
Some states distinguish between two levels: felonies and misdemeanors (minor crimes). Generally, most felony convictions result in lengthy prison sentences as well as subsequent probation, large fines, and orders to pay restitution directly to victims; while misdemeanors may lead to a year or less in jail and a substantial fine. To simplify the prosecution of traffic violations and other relatively minor crimes, some states have added a third level, infractions. These may result in fines and sometimes the loss of one’s driver’s license, but no jail time.
For public welfare offenses where the state is punishing merely risky (as opposed to injurious) behavior, there is significant diversity across the various states. For example, punishments for drunk driving varied greatly prior to 1990. State laws dealing with drug crimes still vary widely, with some states treating possession of small amounts of drugs as a misdemeanor offense or as a medical issue and others categorizing the same offense as a serious felony.
Contract law covers obligations established by agreement (express or implied) between private parties.
Tort law generally covers any civil action between private parties arising from wrongful acts which amount to a breach of general obligations imposed by law and not by contract.
Tort law covers the entire imaginable spectrum of wrongs which humans can inflict upon each other, and of course, partially overlaps with wrongs also punishable by criminal law. For example, a few jurisdictions allow actions for negligent infliction of emotional distress even in the absence of physical injury to the plaintiff, but most do not. Notably, the most broadly influential innovation of 20th century American tort law was the rule of strict liability for defective products.
THE PROBLEM OF TRUTH
Discussion of a Lawyer’s Duty
There is an inherent flaw in the United States criminal justice system. The
adversarial nature of formal dispute resolution upon which our common law system is
based often fails to provide American citizens with justice. Clearly justice can be defined
in a litany of different ways, and justice cannot be regarded as one definite, universally
accepted ideal. For the purposes of this discussion, however, the function of criminal
trials in the U.S. will be defined in the most basic of terms: the discovery of the truth in a given situation through due process of law, such that those who are guilty of crimes
delineated by codified laws are punished through fines, incarceration, and other
established reprimands. This truth, however, is sometimes not reached in trials, and the
adversarial system is often to blame for this failure. More specifically, it is the role that attorneys play within this system in which it is the duty of these officials only to win cases with any means legally possible, not to aid the discovery of true facts that impedes the system’s ability to uncover the truth in matters. Thus, the adversarial roll of lawyers within the legal system obstructs the pursuit of discovering who, in fact, is innocent, and who is guilty in legal disputes and trials, effectively hindering the system’s ability to achieve its purpose in the aforesaid context.
Macaulay has argued that “when two men argue…on opposite sides…it is certain
that no important consideration will altogether escape notice.”
However, in the presenting of these “considerations” through exhibits and testimonies, lawyers often attempt to question their validity, thus distorting the legitimacy of any evidence that a Jury or Judge is introduced to. The partisanship of the opposing lawyers blocks the uncovering of vital evidence or leads to a presentation of vital testimony in a way that distorts it…we have allowed the fighting spirit to become dangerously excessive…in short, the lawyer aims at victory, at winning in the fight, not aiding the court in discovering facts. He does not want the trial court to reach a sound and educated guess, if it is likely to be contrary to his client’s interest. Our present trial method is thus the equivalent of throwing pepper in the eyes of a surgeon when he is performing an
For many lawyers, procedure often takes precedence over truth in trials. Even if they
know their client is guilty, an attorney may still legally make efforts to delegitimize the
case of the prosecution. An experienced lawyer uses all sorts of stratagems
to minimize the effect on the judge or jury of testimony disadvantageous to his client,
even when the lawyer has no doubt of the accuracy and honesty of the testimony.”
In this sense, lawyers work directly against the pursuit of justice, using skill and knowledge of the legal system to skew the discovery of their client’s guilt. The only means with which to discover the truth are facts and testimonies presented by lawyers and
prosecutors, and creating confusion as to which are truthful and legitimate only further
hinders a judge or jury from reaching sound, correct deliberation. This is a blatant
contrast with the purpose of the legal system within the scope of this argument, and thus
is a normative hindrance to the pursuit of truth in a given matter.
In his article The Criminal Lawyer’s “Different Mission”: Reflections on the “Right to Present a False Case, this sentiment is articulated by Harry I. Subin through an experience he had as an attorney. When representing a client accused of rape, Subin grew suspicious of his client’s claimed innocence, as certain nuances of the case didn’t logically support his alibi. Subin states: “I had my suspicions about…the client’s version of what had occurred, and I supposed a jury would as well. The problem was theirs, however, not mine. All I had to do was present my client’s version of what occurred in the best way that I could…Or was that all that was required? Committed to the adversarial spirit…, I decided that it was not. The ‘different mission’ took me beyond the task of presenting my client’s position in a legally correct and persuasive manner, to trying to untrack the state’s case in any lawful way that occurred to me, regardless of the facts.” Subin would later discover that his client was, in fact, guilty of the rape. While compelled morally, Subin ultimately decided that “knowing the truth in fact did not make a difference to my defense strategy.” The case never reached trial, as it was eventually plea bargained. However, at the end of his article, Subin contemplates his planned strategy as contrary to the purpose of the judicial system, and morally irreprehensible. Subin states: “I was prepared to stand before the jury posing as an officer of the court in search of truth, while trying to fool the jury with a wholly fabricated story.”
In identifying himself as “in search of truth,” Subin identifies his duty within the legal system as contrary to its purpose; his duty was to discredit the presentation of facts and testimonies he knew would give a judge and jury an accurate representation of the truth.
Taking an even more extreme stance on the matter is long-time public defender Martin Endermann, who goes as far as to claim that “I have nothing to do with justice…justice is not even part of the equation.” Endermann maintains that lawyers do not serve clients, but merely serve the system, maintaining stability through constant plea bargaining. Describing Endermann, James Mills states: “If there is fault, it is not with Endermann himself, but with the system. Criminal law to the defense lawyer does not mean…proper punishment…It means getting everything he can for his client. The government needs guilty pleas to move cases out of court, and the defendants are selling their guilty pleas for the only currency the government can offer- time. But no matter what sentence is finally agreed upon…the guilty always win. The innocent always lose.”
Endermann describes a legal system in New York that is bogged with cases. The system
is so much so, that guilty pleas are taken in return for reduced sentences. This leads to
clear misrepresentations of the truth in many matters. For instance, Endermann describes
James Mills, I have nothing to do with Justice, a situation where a client who adamantly claimed innocence eventually pleaded guilty to a crime, rather than pleading innocence in trial, simply because in return for the guilty plea he was sentenced to time in prison already served, and was subsequently released. In this case, a jury never even had an opportunity to weigh facts and evidence in order to discover the truth. The truth, rather, is discarded in order to maintain stability within the system, and according to Endermann, it is the attorney’s job within the system to facilitate this.
The problem of the adversarial system can also be identified from the point of view of the prosecution. In his article Killer Instincts, Jeffrey Toobin describes the issue of prosecutors needing to break the bounds of the legal system, resorting to misleading jurors in order effectively prosecute those they feel to be truthfully guilty. According to Toobin: “[prosecutors] get wedded to a theory and then ignore evidence that doesn’t fit…once [prosecutors] get to the point where [they] believe [their] instincts must be right, [they] quickly…just deep-six inconvenient evidence.”
Toobin focuses his article to the example of Kenneth Peasley, an Arizona prosecutor who was disbarred for perjury. Peasley, prosecuting suspects of a triple murder he strongly felt were guilty of this crime, lied in order to further legitimize the testimony of the criminal who fingered the suspects in return for a reduced sentence. Peasley claimed that the informant, Keith Woods, had named the suspects before the police had ever been aware of them, or knew of their relation to the crime; whereas the truth was that they had given Woods the names, and he had merely identified them as guilty. Thus, in order to uncover what he felt to be the truth in the matter, Peasley had to break the rules of the legal system, as the lawyer’s ability to delegitimize his informant’s testimony would hinder his ability to do so. Thus, in Peasley’s view, the legal system is not a forum in which the truth can properly be discovered, and one must break the rules of this system in order to achieve its purpose.
The cases of Subin, Enermann, and Peasley all identify the inherent problem with the adversarial system. If the purpose of the system is to send the guilty to jail, and to absolve the innocent, then why do lawyers work in a manner so contrary to this? The answer is that the adversarial system, while stable, has many inherent flaws, and must be changed into a system more concerned with facilitating the discovery of the truth. Until such changes are made, justice, as defined in the context of this argument, will often be discarded in the name of stable process.
PROBLEMS IN THE CRIMINAL JUSTICE SYSTEM
The criminal justice system is plagued with many problems and is in need of serious reform. Many nonviolent offenders are sent to jail, because many district attorneys give into political pressure and try to send a message that they are tough on crime. The prison system is overcrowded, and there are insufficient resources to make significant improvements. The priority should be to send the most violent offenders to jail or prison.
Our criminal justice system “is a national disgrace.” Many people with a mental illness, or drug or alcohol addiction, or those who are nonviolent offenders are in our prison system, when they belong in mental hospitals or rehabilitation centers. The prison system is flawed with poorly screened and trained prison administration staff, old prisons, lack of financial resources to educate and rehabilitate prisoners, and poor health services.
According to the U.S. Department of Justice, the Senate, and the Benjamin N. Cardozo School of Law, “Eyewitness misidentifications were a factor in over 70% of wrongful convictions.”
The Innocence Project is a nonprofit organization dedicated to overturning wrongful convictions through the use of DNA testing. As of September 20, 2009, 242 defendants who had been wrongfully convicted of either sexual assault or murder were freed.
According to the Federal Bureau of Investigation, gangs are responsible for up to 80 percent of all crimes in some communities. Many legal experts feel that the criminal justice system has failed to control the growth and strength of gangs nationwide and has been unable to put gangs in prison and keep them there.
Nuestra Familia is a prison gang that uses a street gang called Nortenos as foot soldiers. Approximately two years ago, from the Pelican Bay Security Housing Unit, Nuestra Familia ordered the Nortenos to kill all the Surenos (a street gang who are foot soldiers of La Emme Prison Gang).
Victims and The Criminal Justice System
According to The National Center for Victims of Crimes, “The criminal justice system focuses on the criminal to the detriment of the victim.”
Racial Injustices In the Criminal Justice System
According to The National Council on Crime and Delinquency, “African Americans make up 13 % of the general US population, yet they constitute 28% of all arrests, 40% of all inmates held in prisons and jails, and 42% of the population on death row.”
“In contrast, Whites make up 67% of the total U.S .population and 70% of all arrests, yet only 40% of all inmates held in state prisons or local jails and 56% of the population on death row.”
Problems with Informants
According to to the Innocence Project, “In more than 15% of cases of wrongful conviction overturned by DNA testing, an informant or jailhouse snitch testified against the defendant.” Informants sometimes knowingly falsely testify against a defendant, in exchange for release from jail or prison or other benefits.
PROBLEMS IN CIVIL JUSTICE
COST AND INADEQUATE LEGAL AID
Two recent studies provide news good and bad for the U.S. legal system. The good: The United States’ civil legal system is one of the best in the world, according to the results of the World Justice Project’s Rule of Law Index 2011.“The United States obtains high marks in most dimensions of the rule of law,” the index states. “The country stands out for its well-functioning system of checks and balances and for its good results in guaranteeing civil liberties,” and “the civil justice system is independent and free of undue influence
And the bad? According to this same study, millions of Americans can’t use this fine system because they can’t afford it. They have legal rights—to child support, Medicare benefits or protection against an improper home foreclosure—but they find these rights meaningless because they can’t enforce them. The U.S. legal system is similar to its medical system; in many aspects it is the best in the world, but many people don’t get any services at all.
A plethora of government and volunteer programs provide free legal aid, but they are overstretched. “Any local legal aid office will tell you that at least two-thirds of those who walk through their doors aren’t getting help because there aren’t enough resources,”
To make matters worse, the system for providing free legal services is a mess. There is “an enormous diversity of programs and provision models with very little coordination at either the state or the national level,” , poor individuals’ access to assistance is “characterized by large inequalities both between states and within them. … The services available to people … who face civil justice problems are determined not by what their problems are or the kinds of services they may need, but rather by where they happen to live.”
But the study also found some significant problems, noting that “the civil justice system … remains inaccessible to disadvantaged groups,” “legal assistance is expensive or unavailable,” and “the gap between rich and poor individuals in terms of both actual use of and satisfaction with the civil courts system remains significant.”
When comparing nations on accessibility of civil justice, the survey ranked the U.S. 11th out of 12 countries in North America and Western Europe. Among high-income nations worldwide, the U.S. ranked 20th of 23. Among its high-income peers, the U.S. beat out only Italy, Croatia and Poland.
A big reason the U.S. received these disappointing scores was because so many of its residents have no access to legal counsel. When comparing nations on the ability of their people to obtain legal counsel, the U.S. scored 50th out of all 66 nations surveyed.
American lawyers don’t come cheap, which may be why rich individuals use the civil legal system to resolve their disputes significantly more often than do poor people. When facing a common civil dispute—an unpaid debt—46 percent of high-income individuals file a lawsuit while only 33 percent of low-income individuals do the same, according to the survey.
Other high-income nations do a much better job of providing those at all economic levels with access to civil justice. When confronted with a civil legal problem, 30 percent of low-income Americans give up and seek no legal redress, compared to 7 percent of high-income residents. In other industrialized nations the difference is not so large, with 19 percent of low-income and 16 percent of high-income residents taking no legal action, on average
U.S. legal aid programs are supposed to close this gap but they don’t—in large part because these programs are underfunded. Legal Services Corp. -funded programs had to turn away half the eligible people seeking assistance. People living in households with incomes at or below 125 percent of the federal poverty level are eligible for LSC aid. Since that 2005 study, the situation has gotten worse as the demand for legal aid has jumped. “Hard economic times increase the need for legal assistance,”
Meanwhile, Congress has severely cut back funding for the LSC, which distributes federal grants to independent nonprofit legal aid programs throughout the United States and its territories. Fiscally strapped state and local governments also are spending less on legal aid. President Barack Obama included $402 million for the LSC in the proposed fiscal 2013 budget he recently sent to Congress. That is a 15.5 percent increase over the LSC’s current $348 million budget, but still $68 million less than the corporation requested for next year. And there’s no guarantee what Congress will do.
Other sources of funds are drying up, too. Legal aid programs often receive money from the interest on lawyers’ trust accounts, but interest rates have dropped substantially. Some states help fund legal aid through an extra fee on court filings, but “overall, court filings are down. As result, legal aid programs are being squeezed. “We face a perfect storm of reduced resources at a time of greater need.
No one is certain precisely how many poor people are now doing without civil legal assistance. “There’s disagreement over how much need there is because there’s no good, contemporary national data on this. We just know there’s a lot,
Unmet legal needs are far more prevalent in some parts of the country and for some groups. The study found the LSC does a pretty good job of distributing its funds fairly among the states; 59 percent of states receive LSC funds in proportion to the state’s LSC-eligible population. And while 18 percent of states receive fewer funds than they should and 24 percent receive more, “departures from parity for LSC funds are relatively small in magnitude
Individual states, by contrast, vary greatly in their funding of civil legal aid. Just six percent of states provide funding in proportion to their population. Thirty-five percent provide a much greater amount of funds— averaging 240 percent of what one would expect based on their population. The District of Columbia, Minnesota, New Jersey, New Hampshire and Washington state are among the leaders in funding civil legal aid. On the other hand, 55 percent of states provide far less funding than expected, while 4 percent provide no funds. These states provide, on average, just 40 percent of the funding proportionate to their populations. Some of the states that provide the smallest amount of funds per capita are Alabama, Georgia, Louisiana, Idaho and Wyoming; the latter two states provide no funds at all.
Splintered Aid. Even within a state, the availability of civil legal assistance varies widely, Access Across America found. That’s because many providers help only individuals in their locality. Many offer legal assistance to just certain types of individuals. For instance, one organization may help only the elderly, while another may help veterans, and a third may help the homeless. Many providers help with only specific types of civil law matters, such as evictions, debt or domestic violence restraining orders.
Little coordination exists for civil legal assistance in the United States, and existing mechanisms of coordination often have powers only of exhortation and consultation,” the study states. “At the national level and within most states, civil legal assistance is organized much like a body without a brain: It has many operating parts, but no guiding center.”
The end result, the study declares, is “a fundamental absence of coordination in the system, fragmentation and inequality in who gets served and how, and arbitrariness in access to justice depending on where one lives.”
Some states are working to improve things. Washington state is a leader in this regard, providing a centralized, toll-free number for low-income individuals seeking civil legal aid. The phone service conducts intake, provides legal advice, and refers callers to appropriate legal service providers. Some other states offer centralized intake, but Washington has the nation’s most highly developed integrated system of civil legal assistance, Sandefur says.
“A society dedicated to the rule of law needs to make legal representation a reality for more of those in need. It is both a professional and a public responsibility to make equal access to law a reality for more people,” Asher says. He adds that “the Pledge of Allegiance ends with ‘liberty and justice for all.’ We haven’t made that a reality.”
JUDGES AND THE WAY THEY ARE SELECTED
The legal profession has become one that is fairly attractive to young people and there are lots of law schools, and it is true when you have more lawyers, you probably have more cases filed and there is more litigation than needed in this country. Having more lawyers doesn’t necessarily mean that courts have lost their way or that the legal system has lost its way.
The answer is to fix the system. The answer is to assure that anyone with a legitimate claim or a legitimate defense has access to a system that works, and to assure that judges are weeding the wheat from the chaff because they understand that’s part of their job. Where we would need to be a plaintiff or in a position where we were sued as a defendant, we want to know that we can go to court and that there will be a cost-effective, just process in place.
The fundamental problem is this notion that judges, like members of the executive or legislative branch, have some duty to listen to their constituency, to put their finger in the air to see which way the wind is blowing before they make a decision, rather than being accountable just to the rule of law and the Constitution, and having as their job description impartiality and integrity and a fealty to the laws and fact in a particular case.
What you need is a fair and impartial judiciary. The framers of the Constitution achieved that for the federal judges. The federal courts, by and large, have been staffed by very well-qualified judges. A fair and impartial judiciary is achieved through a fair system for choosing judges. The justices that preside on the U.S. Supreme Court are appointed by the President and then confirmed by the people’s representatives in Congress after public hearings. As much as people decry the political process at the outset, federal judges are appointed for life. And that’s part of the United States’ constitutional promise.
In a country as diverse as the United States, you can find many different methods of government. And the great bulk of litigation occurs not in the federal courts, but in the state courts and the states have very different ways of selecting state judges. States are all over the map on this front. It’s a hodgepodge. There are almost no two states that are exactly alike. Some states have systems that look like the federal system. And then there are a bunch of states that have achieved a balance between impartiality and accountability.Some states actually elect their judges in partisan, popular elections. There’s not another country in the world that does that. And it surprises people in other countries that judges should be selected that way. Most in the legal field do not think that partisan election of judges is a good way to select judges. They need to be appointed based on their qualifications and on merit. It’s fine to have a retention election where you put the judge’s name on the ballot and you decide whether to keep that judge, yes or no — that’s fine. But the idea of having judges run and raise large sums of money is a terrible way to select judges.
In a country that doggedly resists having the same answers to the same question, a model that would work might be that the appointing authority, usually the governor, appoints, and then that judge serves a provisional term in office, during which there’s a judicial performance evaluation, a report card. Is the judge running the courtroom well? Is the judge making decisions in a timely and understandable way? Is the judge well-prepared, knowledgeable on the law? That information is packaged and available to the voters. And then the voters vote yes, no, up, down on that particular judge as to whether they want that judge to stay in office.
Have televised trials, reality TV shows, court TV shows, which have now proliferated across syndicated television, helped Americans understand how their legal system works?
At some level, all the way back from “Perry Mason” to current court TV, it’s important to keep the court system in the minds of the public. And there are pieces of information that come through that are helpful, but there’s a lot of information that’s inaccurate and is, in fact, destructive.
TIME DELAYS AND RESULTANT HIGH COST
Isolate the issues and bring them to a conclusion, swiftly and judiciously. But despite this day-to-day philosophy, a troubling conclusion is that the civil justice system today—whether dealing with simple or complex matters—takes so long and costs so much that it no longer serves as an effective tool in regulating society’s legal matters. In the end, the system has become so dysfunctional that it’s virtually impossible for the average person to rely on it as a means of resolving disputes.
The problem is not with basic democratic principles. Over the years, the American legal system has evolved according to the will of its people, ensuring continuous moral and lawful equality. But the administration of the law has not evolved fast enough to match the needs of a culture driven by accelerating technological change.
Instead of making trials faster or cheaper or better, the tech revolution made them slower and more expensive and churned up a lot of extraneous material in the process. First of all, very few cases are getting to trial. Only 1 percent of civil cases actually get to trial. All the rest of them settle, and not necessarily on the merits. They settle because one or both of the parties have run out of money or think they’re going to run out of money. Into that process, then drop the electronic age. It’s no longer a box of documents that the attorneys are going to uncover in the discovery process. It is millions of documents, emails and text messages and voice messages, all of which are discoverable. The corporate attorneys will say that a lawsuit that would require $2 to $3 million in legal fees, so a big lawsuit, can require another $2 to $3 million in the costs of producing and reviewing electronic information.
The highest court in the land began its term this month with an unusually high number of consequential cases awaiting appeal, touching on subjects from health care reform to illegal immigration. Drawing less attention are the 30 million civil court cases filed every year over everyday issues like traffic tickets, divorce and personal injury. Americans don’t understand how the courts work and that the system itself needs a major overhaul.
If you get in a car wreck, and there’s an argument about who should be paying damages, your assumption is that you can go to court to have that case resolved. The truth of the matter is that’s probably the last place you want to be, because the fees and the costs will ultimately be more than your car is worth, even if you drive a really nice car.
Businesses need confidence in the fact that if they have a contract dispute, they can go to court, get a resolution for a reasonable amount of money in a reasonable amount of time. So, the first thrust is, we have to convince people that this really matters, that it’s very important to our social contract to have a civil justice system that is accessible, efficient and accountable.
Today, our courts are mired in delay, bogged down with tens of thousands of cases.
Lawsuits often take years, cost hundreds of thousands of dollars, drain us psychologically and produce outcomes that no one can predict. Day by day, with each legal experience, people are losing confidence in our system’s ability to deliver justice.
All of these problems relate to time:
Time is the enemy. Time is money and frustration that blunts the moral imperative of any court attempting to dispense justice. The old saying, “Justice delayed is justice denied,” is more than an axiomatic statement. It has a deep and abiding meaning for our civilization.
There are many “time fixes” to improve our civil justice system. And fix the system we must, for if we fail, we risk losing our hard-won legacy system of swift and accessible justice. And given that almost all business interactions have legal components, such a loss of access would constitute a fatal blow to a just and moral society.
Require that the same judge be assigned each case, from beginning to end. Facing a different judge at each legal appearance de-personalizes all judges. Judges must be seen as a people, not anonymous manikins in black robes; they should not appear remote; they belong in the case. Judges who follow a case to its conclusion would be able to learn much more about litigants’ motives. Deliberate stalling by either party would be more difficult, since it’s harder to do so in person than on paper—particularly when facing the same judge at every session. For their part, judges would have more opportunities to develop a sincere interest in the fair resolution of each case, and litigants, in turn, would likely sense the judge’s true interest. Furthermore, much less paperwork and time would likely be wasted on painstaking analysis, passed from court to court.
Streamline pretrial paperwork, eliminating the endless exchange of written bills and motions. Discussions could take place in front of a judge, with clarifications and questions addressed until they’re mutually understood and settled.
Require plaintiffs to pay expenses if an appeal is lost. Everyone deserves a fair trial, but if a plaintiff loses a case and appeals, then he or she should pay the defendant’s expenses accrued beyond the trial. Under this procedure, a malicious plaintiff could no longer prolong a suit without personal risk.
Bar contingency fees. Many litigants choose a contingency deal with their attorney because it appears cheaper; they don’t have to put any money up front. But the real solution is to strip time out of the legal system, so litigation requires less money and people would be less pressured to gamble on their lawyer’s success.
Require litigants to attend their pre-trial procedures. Today, few litigants go to court with their lawyers, often because the cases are confusing and time-consuming. But the courts were meant for ordinary people; plaintiff and defendant must be made to feel that justice is in their hands, too.
Expand the role of magistrates. Thousands of these appointed lawyers already assist federal district court judges who cut the judicial caseload by performing various duties. An expansion of the Magistrate Judge System is long overdue.
.Eliminate continuences. Lawyers appear before judges asking for another three weeks to review all the documents driving up the cost? There are cases, where everybody shows up in the courtroom ready to go, witnesses, all of the evidence, and the case gets continued because the judge has a criminal case on which there’s going to be a speedy trial expiration or a juvenile case.
These are just a few possible “time fixes” to improve our civil justice system. And fix the system we must, for if we fail, we risk losing our hard-won legacy system of swift and accessible justice. And given that almost all business interactions have legal components, such a loss of access would constitute a fatal blow to a just and moral society