By Benjamin Wetmore
There were a few years in the past decade where there was an honest and genuine push for serious, substantive, criminal justice reform. The decades of abuses by prosecutors, judges, and the government would finally be amended.
There were some important reforms during this period too. There was the Michael Morton Act in Texas, which for the first time gave defense attorneys the right to see a police report without cause. Prior to that 2013 law, defendants in Texas were given almost no evidence from which to defend themselves.
Additionally, Obama’s Attorney General Eric Holder stopped the practice of federal Civil Asset Forfeiture. Previously, federally, police would seize money and property from people they arrested, making it exceptionally difficult to return to its rightful owners.
Even though, practically speaking, this law mainly gave drug dealers their money, cars, and boats back, it was still a good reform because it wrongly incentivized injustices from cash-strapped police forces.
But there the substantive reforms stopped. George Floyd’s death in 2020 changed criminal justice reform in a way that excessively racialized its political motives and its desired outcomes. They weren’t seeking to increase a sense of justice. Instead, reformers, wanting to steal the political power from Floyd’s death, steered it into controlling judicial outcomes.
Many of the Big Money nonprofits lobbying on these issues push changes to judicial outcomes, not changes to the process or system. That energy distorts necessary reforms into policies that will only make things worse.
Instead of examining and uncovering how the system treated individual people unjustly, the motive of criminal justice reformers became figuring out a way to get people of a particular race to make up less of the crime statistics.
The point of reforms became less about justice, and more about fulfilling a desired statistic on a spreadsheet.
Crime statistics aren’t uniform, and they don’t neatly match their proportions within the population. There are many reasons that might account for or explain those disparities. It might involve poverty, education, employment, or healthcare, for example, but after generations of study those causal relationships are still hotly debated and contestable.
Upon realizing these disparities, reformers avoid substantive reforms altogether and seek to simply affect outcomes.
Instead of reforms that might provide greater protection from police intrusion in cases, reformers now seek to let everyone charged with a crime out on no bail.
Instead of reforms that might strengthen the law by providing clarity and giving mercy to defendants when police and prosecutors violate the law, reformers seek to weaken the law by letting out and easing the burden on the guilty.
Within the same state, right now, you can receive a $50,000 bond for a DUI, but a personal recognizance bond for a violent assault. You can receive a $200,000 bond for an all-too-common false claim of child abuse originating in a divorce proceeding, but you can be released on your own good word if you participated in a murder. These disparities aren’t due to racism, but politics.
Most state and federal judges are themselves former prosecutors too. Republicans and Democrats appoint prosecutors. The system protects itself from reform, and even from adverse rulings on evidence and procedure at the trial court level, by having friendlies among the judges. A much broader and wider array of judges should be appointed.
In federal and state courts, the likelihood of a conviction after trial is often 95% or worse. This isn’t because prosecutors are perfect lawyers. It’s because the deck is massively stacked against defendants. The Soviet Union had a 99% trial conviction rate and history considers their courts to be completely unjust.
In many federal appellate circuits, the likelihood of a federal criminal appellant receiving any kind of relief from the appeals courts, any kind of positive ruling whatsoever, is less than 5%.
Then there’s the federal government illegally intercepting all communications by Americans. They then filter that information into prosecutions via unconstitutional ‘Fusion Centers’ across the country to allow police access to databases of illegally-obtained evidence.
When caught, prosecutors argue “inevitable discovery,” or other bad faith arguments, to avoid the courts sanctioning them for upending the judicial system.
But instead of addressing any of these substantive reforms within the system, reformers want to end ‘cash’ bail and release defendants awaiting trial. These reformers are shocked when defendants don’t subsequently appear for trial or reoffend while awaiting trial.
Instead of working to fix real problems, reformers want to defund police or play games with their funding, resulting in more dangerous communities. That won’t make a better justice system. If anything, it’ll likely make a more vicious one as it seeks to punish people in its clutches for things they think they’ve done.
I once had a judge in a serious felony trial say that idea to me at the bench, “if he’s not guilty of this, that boy’s guilty of something.” That attitude will still prevail if we only focus on results-oriented reforms instead of substantive protections.
Substantive protections, what might be called due process protections, are urgently needed across the judiciary at the state and federal level. These kinds of protections would benefit defendants of every race, color, wealth, and creed. These kinds of reforms could be non-ideological and would give Americans a fairer justice system.
Yet, for some reason, reformers seem like they care more about popularity in the media than in helping vulnerable people in the system.
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