America Law vs. American Justice

Many years ago at a party when I first moved to New York City after college, a freshly minted lawyer shared with me a joke that all of his colleagues told about their powerful Park Avenue law firm:

Why are the senior partners so supportive of our pro bono work?  They want us to practice on some poor jerks life and liberty in order to be certain that we can be trusted with the property of our rich clients!


This exquisitely cruel joke amply illustrates a tension that has haunted our high ideals since our nations founding: How do we ensure that each American receives an equal measure of justice?

It has, we all know, often been the case that those with wealth and connections receive preferential treatment from our supposedly impartial system of justice, and laws many times have been written to explicitly protect the interests of the haveswhile harshly punishing the have nots.  To take an extreme instance from our nations deeply conflicted history, the Fugitive Slave Act of 1850 required that the government do whatever was necessary to help frustrated slave owners regain their runaway property and so quash that slaves strongand, from the slave owners perspective, incredibly inconvenientdesire for life and liberty.  This was all, of course, perfectly legal, but it was morally and ethically wrong to a degree that strains the credulity of our minds today.

The obvious and well-worn political answer to the problem of injustice under the law has been to gradually codify more legal protections for those with limited means or who live outside societys mainstream; the right to free legal counsel and expanded rights of appeal have certainly been an immeasurable help to many who in the past would have been railroaded by a legal system more concerned with expedience than actual justice under the law.  In addition, the power of crusading newspapersand later radio and televisionto highlight instances of justice denied or deferred have provided a very public check on abuses that might have previously gone unnoticed.  This scrutiny of the legal justice system has, of course, reached a new and startling apogee in the age of the Internet and social media, which now facilitates a degree of worldwide scrutiny that forces many rich and powerful malefactors to squirm uncomfortably under the unrelenting gaze of hashtag activism.

Nonetheless, the United States is still wrestling with the reality of continued injustice, which is sadbut unsurprising.  Any expectation of perfectjustice from fundamentally imperfect human beings is both naive and plain silly.  Human judgment, human perception, and human memory are inherently unreliable, so mistakes will be made.  

The real question is just how quickly and effectively we can address those miscarriages of justice that will inevitably occur.  Wrongful convictions that are finally overturned after decades of incarceration seem resoundingly hollow victories, so we need to streamline our processes for appeals.  Moreover, in order to catch problems before they happen, we also need to re-examine our courtroom evidentiary rules; oddball and capricious judicial decisions about what evidence to introduce or suppress at a trial too often defy any reasonable standards of fairness or common sense.

We have, however, veered into an entirely new legal territory over the last decade or so.

Extraordinary efforts now being made to facilitate the re-entry of criminals into mainstream society.  This has produced a novel three-pronged strategydecriminalizing that which was once illegal, expunging more and more criminal records, and forbidding the use of criminal background checks in housing and employment decisionsthat raises many questions about what is justiceand what is not.  The logic seems to be that reducing what is considered criminal will lead to fewer crimes, and those who have previously committed crimes can be counted upon not to do it againif only the stigma attached to their past crimes can be somehow erasedbecause most crime is but an unfortunate artifact of a overly repressive and punitive society.

Legitimate concerns regarding whether removing consequences from behavior that is often anti-social and sometimes dangerous will only incentivize more wrongdoing are typically brushed aside by those who see criminals and criminal behavior as nothing other than the logical and reasonable reactions of those oppressed by a deeply unjust societyand legal system.  If, as The Rolling Stones once sang, Every cop is a criminal and all the sinners saints, it naturally follows that the boundary between the crooks and respectable citizens is both porous and arbitrary.  We are, therefore, encouraged to see those who break the law as simply unlucky individuals who are actually little different than those who are fortunate enough to live in more privileged circumstances that allow them to easily remain on the straight and narrow.

This is all, of course, a remarkable national experiment that neatly dovetails with both academic theories of systematically unequal societal and economic privilege and the intense desire of many in government to reduce the often steep costs of policing, courts, jails, and prisons.  Whether we will see the desired outcomesless crime, more social harmony, and a more egalitarian countryis still an open question, and acrimonious and unending debates regarding the collection and interpretation of crime data going forward will be as predictable as daffodils in the springtime.

Those who advocate on each side of the equationdemanding more rights for either the victims or the lawbreakerswill each have key roles to play in determining the ultimate political and cultural outcomes of this unique inquiry into both the possible redemption from human weakness and the true boundaries of human forgiveness.  Whether we will soon be celebrating a new era of community peace and respect or frantically polishing the rust off the bars at the old county jail will likely determine the social and cultural milieu of America for many decades to come.

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