Our “No Justice” System

As a lawyer you quickly learn that the terms “justice” and the “American legal system” are not synonymous. Far from it. In far too many respects, our so-called “Justice System” deals primarily with power and authority and privilege. When justice manages to wedge its foot in the door it’s rare and unusual event, especially for those with the wrong color skin and the least financial resources.

The emotional core of this rant deals with three people and the result of their interactions with our criminal injustice system: Trayvon Martin, Michael Brown and Ethan Couch. What’s that you say? Those first two names I’m sure you recognize. But Ethan who? Well, I will get to him.

But first let me make the case that our legal system is broken and any chance we have of ameliorating the damage it is doing to our nation’s citizens is the collective responsibility of all of us. Not just those who have traditionally fought for civil rights and against the burden of inequality under the law, but those of us who have for far too long sat on the sidelines.

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Opening Statement

In America, we call the myriad array of law enforcement agencies, prosecutors, Courts and penal Institutions responsible for arresting, indicting, convicting and punishing people for violations of our criminal laws, our “Justice System.” Why do we call it that? Because in theory, the laws are applied equally, and at every step pf the process from investigations to arrests to trial to convictions and to sentences, every person is treated equally under the law. It makes the claim, and promotes the ideal, that our laws are applied such that no group of people, regardless of their “race, color or creed” (to use an expression from our past) is the subject of harassment, scapegoating or active discrimination by those involved in the system under which charges against them are adjudicated. In theory, every person is viewed as innocent until proven guilty, bias is weeded out, and in the end justice is served.

In fact, that term “Justice System” is at best a euphemism, and at worst a lie, one which seeks to mask the reality of what occurs every day on the street and in countless courts at the federal, state, county and local level. I am far from the first person to note the inequality in outcomes our “Justice System” dispenses depending on wealth and race, nor will I be the last.

But Shaun’s diary stirred within me, as I hope it did within you a great sensation of anger. Anger not only of the betrayal of the ideals by our institutions responsible for meting out justice in our society, anger not only at those who actively participate in perpetuating the inequality in outcomes between rich and poor, white and black, but also anger at our collective failure to address this travesty we call our justice system and its inherent racism, classism, sexism and so forth which makes a mockery of the claim we live in a just and fair society.

While there are many biases that infect our legislative, executive and judicial institutions with respect to the enforcement of laws, I intend to focus on those that specifically deal with the treatment of individuals who at some point in their lives come across an officer of the law, with an emphasis on the inherent racism embedded in our law enforcement agencies and our court, and the corrupting influence of wealth and privilege on who faces “justice” for their crimes and who does not.

Argument

It’s not a surprise that money buys “justice” (i.e., the more money you have the more likely charges against you will be dismissed, or reduced and any penalties for your crimes limited to fines and probation at the most. Indeed the greatest advantage of wealth is the power to intimidate or cause law enforcement to refuse to charge you with any crimes at all. Just look at the number of Wall Street bankers who have been jailed for crimes that include outright fraud, conspiracy, theft, and money laundering for organized crime such as the Mexican drug cartels. Hordes of executives have violated US laws regarding dealings with nations such as Iran, but have any of them been personally indicted. What you say you haven’t heard of any? What a shock.

Criminal proceedings were brought against Wachovia, though not against any individual, but the case never came to court. In March 2010, Wachovia settled the biggest action brought under the US bank secrecy act, through the US district court in Miami. Now that the year’s “deferred prosecution” has expired, the bank is in effect in the clear. It paid federal authorities $110m in forfeiture, for allowing transactions later proved to be connected to drug smuggling, and incurred a $50m fine for failing to monitor cash used to ship 22 tons of cocaine.

More shocking, and more important, the bank was sanctioned for failing to apply the proper anti-laundering strictures to the transfer of $378.4bn – a sum equivalent to one-third of Mexico’s gross national product – into dollar accounts from so-called casas de cambio (CDCs) in Mexico, currency exchange houses with which the bank did business.

Ah, the privileges of being too big to fail (and the privilege of committing crimes for the benefit of such corporations and one’s own yearly bonus check). Poverty, on the other hand results in convictions or plea deals, in which by selling pot to your friends or shoplifting, you may end up serving a lengthy prison sentence, time after time.

Race? That simply adds two strikes against you right off the bat as the recent Department of Justice report regarding the ginned up arrests of African Americans in Ferguson, MO demonstrates. Now if you have enough money, maybe you can avoid conviction, even if you are black or brown. Maybe. But you will always be a pariah.

And of course, in many cases, African Americans never get a chance to deal with the justice system, because they are killed outright by white by white men with guns. You can start out the victim, but if your melanin content is too high, well, you get labeled a criminal even if you are shot down like a dog in the street. On the other hand, if you are white and wealthy – well, let’s just say you can get away with murder.

Which brings us to the three people I mentioned at the beginning of this diatribe …

Trayvon Martin, Michael Brown and The Affluenza Guy

There’s not a lot I need to say about the Trayvon Martin and Michael Brown cases that hasn’t already been said. Suffice it to say two black teenage unarmed youth were shot and killed by older white men, white men who initiated the confrontations that ended in senseless tragedy. In Michael Brown’s case, his killer never had to face a jury of his peers. In what many consider one of the the most biased and racist grand jury proceedings in American history, Michael Browns killer, Darren Wilson, the supposed target of the District Attorney Robert McCulloch’s Grand Jury investigation, was presented as the victim of a monstrous, beastly attack by an unarmed Michael Brown, rather than a potential defendant in a murder case.

Trayvon Martin died at the hands of a wannabe cop, George Zimmerman, but only after massive public pressure did the Florida State Attorney’s office indict him for the vigilante killing of a young man who was relentlessly smeared in the media for the sin of wearing a hoodie. That trial also played out both tragedy and farce. Arguably, it was either the most incompetent case put on by a prosecutor of a nut job who shot an unarmed boy through the heart with his gun after stalking him, or a deliberate attempt to lose the case and let Zimmerman walk.

Darren Wilson and George Zimmerman have become symbols of the racism inherent in our criminal “justice” system, but they are hardly the only ones. Which bring s me to that rich kid from Texas, Ethan Couch, a case where wealth and the defendant’s white skin allowed a person who committed murder to escape any real punishment for his crimes.

Ethan Couch, with a blood alcohol content three time the legal limit drove his truck off the road and into a stalled car, its passengers and two women (mother and daughter) who had come out of their nearby home to aid the people in that stalled car. The end result: four people ended up dead, another one ended up with a traumatic brain injury and another had serious injuries. At trial his attorneys literally argued that his spoiled childhood should justify leniency on the part of the judge for these crimes. From the testimony of the expert psychiatrist who testified that Couch should not be held liable because of poor parenting and the burden of growing up rich:

He said Couch got whatever he wanted. As an example, Miller said Couch’s parents gave no punishment after police ticketed the then-15-year-old when he was found in a parked pickup with a passed out, undressed 14-year-old girl.

Miller also pointed out that Couch was allowed to drive at 13. He said the teen was emotionally flat and needed years of therapy. At the time of the fatal wreck, Couch had a blood alcohol content of .24, said Tarrant County Sheriff Dee Anderson. It is illegal for a minor to drive with any amount of alcohol in his or her system.

The prosecutors in the Couch case wanted a sentence of twenty years in prison. The judge gave poor little Ethan only ten years – of probation (oh and rehab) – for the deaths of four people, and serious life-threatening and life altering injuries to two others. Stop and think about that for a moment. Probation and rehab at this place:

Now imagine what sentence Ethan Couch would have received if he were black, wealthy or not. Imagine the outrage from the right, white conservatives over a black “thug” (Couch had a prior arrest for possession of alcohol by a minor for which he received probation and “community service”). Couch’s parents had their own run-ins with the law, including Fred Couch, the father, for impersonating a police officer, criminal mischief, assault and theft by check. The howl over this family’s “thug lifestyle” would have made Couch and his parents household names if they had been African-Americans rather than rich, white people.

Yet, today bring up the name “Ethan Couch” in a random conversation and people will give you blank stares. Bring up the name Trayvon Martin and far too many white people will call him a “dangerous gang-banger” who “had it coming.” I know. I have had those conversations with people. Even those who think Zimmerman is a “little shady” still come down on the side that Trayvon was the person ultimately responsible for his own death. It’s sick and it’s disgusting, but it is our reality as a nation.

Trayvon Martin and Michael Brown will forever be seen by many people as thugs and monsters. Ethan Couch? Who’s that?

Trayvon and Michael Brown killed no one. Both were unarmed. Ethan Couch killed four people. Yet, who do we remember. Who suffered the further insult of smear campaigns for months after their deaths? Who got away with murder and who will forever be seen by many in this country as cheap-ass punks and low-life criminals who brought their deaths upon themselves?

Ethan Couch, is alive and well, just like our infamous vigilante Zimmerman, though both are responsible for the deaths of others. Trayvon and Michael had everything taken away from them – their lives and their reputations. Zimmerman is still milking his “fifteen minutes” for all it is worth, and Ethan Couch is safely out of the spotlight living in luxury somewhere. Anyone fail to see what is wrong with this picture?

Conclusion: We are All Responsible for Changing Our Injustice System

Let me repeat myself: this racist, corrupt criminal legal system is sick and disgusting. And it isn’t going to change unless people of all races stand up against it and actively seek to bring about change. Most white people (with a few notable exceptions) have allowed our fellow African American citizens to bear the burden of our racist past and our racist present for too long. We have applauded their efforts, or ignored them, but we have done too little to aid them in their fight.

One does not have to actively participate in racism and oppression to bear a share of the responsibility for the state of our country. Those who fail to act, i.e., commit sins of omission, instances where one remains silent in the presence of the evil deeds of others, are also to blame and also must now stand up to confront our “peculiar” and “exceptional” American problem of race.

Many don’t like the claim that everyone bears responsibility for society’s injustices because they view it as the assignment of “collective guilt” or “collective blame” for things they did not personally do, so let me make myself clear. I am not saying those who are not actively engaged in perpetuating racism bear the blame for those who do. I am simply saying that if we see evil – and make no mistake, our criminal justice system is evil in so many ways – it is up to all of us who see that evil to bear the responsibility for challenging it, and seeking ways to effect change.

After all, isn’t that what people always claim the Founders of this nation intended: an engaged and informed citizenry? Well, people, that means more than merely voting or canvassing for the candidate of your choice every two to four years. And while we are a nation of many competing interests, it seems to me that everyone of us has a stake in a just and fair legal system. So, no, this isn’t about collective blame for the sins of slave owners or crooked cops or lynch mobs. This is about a wrong that we can all see, and which may at some point entrap any one of us, regardless of race.

I am not particularly religious, but I was raised as a Missouri Synod Lutheran, and many of the sayings of Jesus reported in the Gospels have stuck with me. None moreso than the Parable of the Good Samaritan. In it three person come upon a man beaten on the side of a road by bandits and left for dead. The first two pass him by, leaving him to suffer whatever fate may bring. The third man, however, a member of a group known as Samaritans, considered heretics by religious Jews, stopped, treated the man’s wounds and took him to an inn where the Samaritan paid for his care until the hurt man was healthy again.

I’ve always liked the message of that parable, that we are all responsible for those with whom we share this life. For who knows when we will need that help from others ourselves?

End of Sermon/rant/argument

Go in peace.