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Problems with and Critique of the American Justice System

There are many ideas concerning the state of justice in America

The Constitution has been handcuffed according to the image.

The Constitution has been handcuffed according to the image.

During WWII many American citizens of Japanese decent were interred in concentration camps after losing everything they owned.

During WWII many American citizens of Japanese decent were interred in concentration camps after losing everything they owned.

The response to the loss of justice is many and varied.

The response to the loss of justice is many and varied.

Often the response to demonstrations exercising the right of free speech is met with violence.

Often the response to demonstrations exercising the right of free speech is met with violence.

Change is needed in the justice system.

Justice; it can be better spelled Just Us! That in a nutshell is the essence of the American Justice system. There are cases of such injustice as to make one howl with indignation. This can be said because of the essential class bias of the justice system despite the protection that is supposedly guaranteed for all under the Constitution, the Miranda Act, the 5th Amendment and other legal rights. The justice system is bogged down by a heavy case load, especially on a huge backlogged of cases that ought to be tried as misdemeanours. It is bogged down by expensive proceedings that only corporations can afford because of the nature of profit gathering. The law is primarily concerned with property rights under the legal definition of ownership. We have often heard, "possession is nine-tenths of the law".

Yes, there are codices that deal with questions dealing with questions of homicide, felony, larceny, theft, substance control, etc., but in the final analysis, most of it is about relationship to property and to one another in that relationship. The law is excessively complicated. Gone are the ideas of just 10 commandments. There are laws, sub-laws, laws below that, by-laws, paragraphs, clauses, interpretations, precedents and commentaries on all of it ad-infinitum. It takes specialized legal education for several years to become familiar with say, corporate law or civil law. Many big companies retain lawyers on permanent staff, waiting to defend them in court, which is often the case with lawyers almost permanently in court defending corporations for this lawsuit or that class action suit.

To have a lawyer represent you on a protracted case can cost a small fortune that is out of reach of 98 percent of the population. But for a corporation, legal costs are part of the expense of making a profit and the costs can be easily recuperated by being written off. The average person on the street though cannot retain a lawyer on permanent staff, nor can they afford one in many cases. Legal aid isn't what it used to be and in some areas it is no longer considered a right to have a legal defence. In fact, since 9-11, many of these rights have disappeared altogether. To defend oneself in a modern court is almost certain legal suicide. The modern courtroom is more often a stage instead of an objective testing of evidence. In the days of Stalin in Russia, Stalin managed to get rid of almost the entire Comintern through show trials. Show trials were thus considered something that occurred in the non democratic countries. But today, with media involvement, US courts are often show trials of a not too dissimilar sort.

Under US law, a person charged with a crime or felony is "Presumed innocent until proven guilty". But is this the real case when evidence is fabricated and/or withheld? It is more like Guilty until proven innocent. Then there is the ever present reality of trial by media which often pollutes the minds of would be jurors long before the first day of trial. In an atmosphere of trial by media, it is hard to find a juror who has not been prejudiced by a media blitz.

The US has the highest incarceration rate on the planet.

More than 5.6 million Americans are in prison or have served time there, according to a new report by the Justice Department released Sunday. That's 1 in 37 adults living in the United States, the highest incarceration level in the world. This used to be the position of the USSR, which no longer exists and has now become Russia and holds the second position.

It's the first time the US government has released estimates of the extent of imprisonment, and the report's statistics have broad implications for everything from state fiscal crises to how other nations view the American experience. If current trends continue, it means that a black male in the United States would have about a 1 in 3 chance of going to prison during his lifetime. For a Hispanic male, it's 1 in 6; for a white male, 1 in 17.

The numbers come after many years of get tough policies, and years when violent-crime rates have generally fallen. But to some observers, they point to broader failures in US society, particularly in regard to racial minorities and others who are economically disadvantaged.

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"These new numbers are shocking enough, but what we don't see are the ripple effects of what they mean: For the generation of black children today, there's almost an inevitable aspect of going to prison," says Marc Mauer, assistant director of The Sentencing Project, a non-profit advocacy group based in Washington. "We have the wealthiest society in human history, and we maintain the highest level of imprisonment. It's striking what that says about our approach to social problems and inequality."(4)

Continuity of evidence

There is a lot of problems concerning admissible evidence and the continuity of evidence. Depending on the case, evidence may or may not be permitted in court, which can prejudice the case. There are often problems with continuity of possession of evidence, which if broken at any time, renders evidence as inadmissible in court. In cases where evidence is crucial, such as some examples given herein, the loss or tampering of the evidence can literally spell the difference between life and death. The handling of evidence in too many cases is sloppy at best and disastrous at worst. In the end, the same profile of the rich-poor divide seems to be the way justice is decided in America.

Insane laws; three strikes and you're out

Three strikes laws are statutes enacted by state governments in the United States which require the state courts to hand down a mandatory and extended period of incarceration to persons who have been convicted of a serious criminal offence on three or more separate occasions. These statutes became very popular in the 1990s under the Clinton administration. They are formally known among lawyers and legal academics as habitual offender laws.(5) A person accused under such laws is referred to in some jurisdictions as a "prior and persistent offender." The name "Three Strikes and You're Out" comes from baseball, where a batter is permitted two strikes before striking out on the third. The problem with this law as enforced in some states is that the same sentence applies to all offences; i.e., the offender spends a protracted sentence in prison, sometimes for life for crimes such as stealing a slice of pizza when you're poor and hungry. Though we should not condone crime, we should in the same moment consider the needs of people and provide suitable opportunity for them to be properly fed so that they don't have to resort to criminal activity to feed themselves. A person should not be sentenced to life imprisonment for stealing food on three occasions to prevent starving to death. If they are so sentenced, how does this differ from sentencing for murder one, where the murderer gets life imprisonment. Punishment should suit the crime, but in this scenario, it does not and the poor suffer the same punishment as an assassin or terrorist.

Laws differing by region and state.

Every state has differing laws dealing with the same circumstance, such as age of consent laws and age of majority. This also varies historically. This can lead to complications where an act that is legal in one state is illegal in the states next door. Marital laws are particularly complicated, especially if a couple moves to a different state that does not recognize the legality of the marriage of it neighbouring state. Up to the mid 1960s the black population could not go to the same schools, churches and other places as white people, especially in the south. In many places, blacks could not even vote. There was a huge social protest movement to change these laws to allow for full integration and this was granted reluctantly, often at the cost of innocent lives. Today, there is a lot of battling over gay marriage status, where even in the context of one state, the law changes back and forth within one year (6). What was illegal at one time, become legal and then illegal, with consequences like state sanctioned annulment that is reminiscent of the marriage laws of Nazi Germany that forbade Germans to marry Jews. It seems that some laws exist in an eternal state of confusion.

A few prominent cases demonstrate the absurdity of American justice at this juncture.

Rodney King: To sum this up briefly, Rodney King, a construction worker was pulled over on an L.A. freeway for a speeding traffic violation. He allegedly resisted the arresting police officer who then called for back-up. When this arrived, some four of the eight to ten police officers began clubbing him senseless on the side of the road while the rest watched. This was captured by a witness with a video camera. Despite the filmed evidence and witnesses, the police were acquitted. This resulted in riots in every major city in the US and Canada for days on end with burning, looting, murder and filmed roadside atrocities across race lines in every direction. Only when the promise of another investigation and subsequent charging of the officers was promised did the mayhem stop. Many innocent people were injured across the race divide. The officers were eventually suspended with pay. An investigation was launched into the whole affair and Rodney King was eventually awarded $3.8 million (1).

O. J. Simpson: The football star, movie star and multimillionaire was charged with murder of his wife, Nicole Brown Simpson and her new boy friend, Ronald Goldman. There was plenty of implicating evidence was found around the home, the SUV, gloves, fingerprints, clothing, DNA matched blood, etc. There was the now famous slow motion chase scene down the highway as O. J. sported a weapon and several police cars were in slow pursuit. O. J. Simpson hired a high profile legal team to defend himself. The legal team managed to convince the court of reasonable doubt in the DNA evidence. He was found liable for the deaths, but he appealed the case and the charge was upheld (2). Despite all of this evidence, the protracted court case ended with a verdict of liability only. When people were polled at large, an overwhelming majority considered him guilty and having gotten away with murder simply because of a combination of money, fame and the potential for a massive race riot as occurred in earlier scenarios. Justice was not blind, but had eyes wide open in this case.

Mumia Abu Jamal: The voice of the voiceless as he became known in the early 1980s was accused of killing a police officer. Jamal was driving a cab when he encountered the officer dealing with his brother in a traffic violation. The bullets found in both the officer and Mumia Abu Jamal were of the same calibre, fired from the same gun which did not match the calibre of the gun Jamal was alleged to have at the scene. Based on what the state alleges; Mumia shot the police officer while standing outside of the officer's car while the officer was seated inside. Mumia was then shot in self defence by the officer with the same pistol that Mumia shot the officer with. We are supposed to believe that Jamal shot the police officer while the officer was in his car and that the officer then somehow wrested the gun from Jamal and shot him. Jamal who lay close to death then somehow cleaned off and returned the pistol to his cab before the paramedics arrived. While unconscious, near death and being driven to emergency in a nearby hospital, Jamal allegedly confessed to shooting the officer. Mumia lay near death with a bullet in his chest. The cop was dead when paramedics arrived. According to outside witnesses, a man was seen running from the scene, but the witnesses were discredited in court as one was a prostitute, reasonable doubt and other challenges to character. A confessor came forward later stating that he had shot the officer (3). Yet Mumia wound up on death row and still awaits execution decades after the event, court case, prosecution and sentencing. Appeals to retry have all been denied. It is hard to suspend ones disbelief over the fact that this is intrinsically racist, especially considering that Jamal had dealings with the Black Panther movement.

There is; or should it be said; there was, reasonable doubt that should be considered in any case in court. It has been used in reverse to protect the guilty, but not allowed in other cases. Yet we see that reasonable doubt was violated in just three prominent cases. It is violated more often than that! Let us look at the McCarthy Senate House Hearings on Un-American Activities. Many lives were ruined on hearsay that rivals the "spectral evidence" of the witch hunt era. All of this was due to paranoia concerning the infiltration of Communists within the American democracy. McCarthy was eventually dismissed, considered a crank, but not before hundreds of peoples' lives were ruined. Almost no on served prison time, yet they might as well have, being excluded from society at large and ending in extreme poverty. Some victims of McCarthy committed suicide.

In the post 9-11 era, we have seen the enactment of of the Patriot Act, the Homeland Securities Act and the end of habeus corpus. It is now possible to be arrested without charge, held indefinitely and spirited away to be tortured in an out-sourced prison. There some sources that even suggest that the US has built hundreds of concentration camps.


1. BBC News "Flashback: Rodney King and the L.A riots"

2. "The OJ Simpson case + 5 years: Where are they now?". CNN (June 11, 1999).

3. "Trial and Post-Conviction Relief Act (PCRA) hearing transcripts" (pdf). Commonwealth of Pennsylvania.


5. Ahmed A. White, "The Juridical Structure Of Habitual Offender Laws And The Jurisprudence Of Authoritarian Social Control," 37 U. Tol. L. Rev. 705 (2006).



Lyndon Henry from Central Texas on February 09, 2012:

Thanks for an insightful, interesting, and well-researched and documented article. I've voted this Up and Interesting.

I agree with the general thrust of your arguments. The USA has more of what I call a "criminal vengeance" system than a "justice" system. As I've pointed out in one of my own articles, the high incarceration rate (highest on earth) further raises concerns over whether this country is becoming a police state.

America's criminal "justice" system is arbitrary, vengeful, and unreliable. It allocates enormous and sinister power to state authorities (bureaucrats), thus placing all of us at risk while actual criminals can continue to prey on the rest of us. Furthermore, the trend (pushed particularly by the extremist right) toward a police state is eroding essential protections such as the right of habeas corpus and the protection against double jeopardy.

Thanks for bringing attention to the criminal "justice" issue.

William J. Prest (author) from Vancouver, Canada on October 11, 2011:

@ The Scary Truth: This is so true, for without liberty, we cannot have the other. But having the wealth of the earth is not the way to attain liberty for all as the hoarding by a few denies anything to the rest.

The Scary Truth on October 11, 2011:

"Liberty is one of the most precious gifts which heaven has bestowed on man; with it we cannot compare the treasures which the earth contains or the sea conceals; for liberty, as for honor, we can and ought to risk our lives; and, on for the other hand, captivity is the greatest evil that can befall man." ~ Miguel de Cervantes

drbobbyg139 on October 06, 2011:

Placing The Law In An Illegal Mode To Obtain Legal Outcome Is A Threat To Justice And Fairness!

Stuart from Santa Barbara, CA on October 12, 2010:

Great article, you made a lot of good points

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