How America's justice system is beginning to crumble

We Americans have long prided ourselves on the fairness of our system of justice.  It remains the best in the world.  But, just like a strong and magnificent bridge across a wide river, corrosion can set in.  If not monitored and repaired, the bridge can suddenly collapse.  Likewise, if we ignore the warning signs, if we do not address the inequities in our justice system, the public will reach a point when there is so little respect for the law that its enforcement will cease to be effective.  The danger is that we might become a lawless society, and that will lead to becoming a failed state.  Chaos and disintegration could follow.

Hyperbole?  Here are seven warning signs, present today, that we ignore at great peril.

Plea Bargains Coerce the Innocent to Plead Guilty

One of several defects in the current system of plea bargains is that prosecutors can coerce innocent people to plead guilty to a lesser charge, because otherwise, they may risk years in prison.  Such coercion can also entice people to give false testimony against other defendants to help the prosecutor in related cases.  Innocent people can also plead guilty, to spare family members who might otherwise be threatened with prosecution.

Costly Attorney Fees Enforce Injustice

Another reason why innocent people may plead guilty to lesser charges is because even if the prosecutor has a weak case, the defendant's legal fees can bankrupt him and his family. 

Prosecutor Resources Are Disproportionate

Part of the coercive power of the prosecutor is that he can pour far more money into his case than can most defendants.  So-called expert witnesses, such as medical, forensic, and other technical persons, can persuade a court of an innocent defendant's guilt, unless the defendant can afford to find, and pay the expenses for bringing equally expert witnesses to the courtroom to defend him.  Few ordinary people can afford to do this, however innocent they may be.

Prosecutorial Discretion Abuse Occurs

Despite the principle of equal justice under the law, prosecutors may selectively choose which cases to prosecute or not.  For example, in the Jussie Smollett case, prosecutors dropped all charges against the accused, despite overwhelming evidence that he had falsely alleged a crime, and over the objections of the investigators.  Yet, in other cases, perpetrators of false police reports are properly put on trial.

One-Judge Tyrants Deny Justice

Most courts are presided over by one judge.  This has led to the outrageous situation in which a single federal judge can overturn a law and apply that injunction to the entire nation.  It is true that such rulings can be overturned by appellate courts, but this can be time-consuming and expensive, and if the Executive Branch is unwilling to challenge the ruling, great damage can be done.  In state courts, a judge can improperly rule to exclude evidence, thus all but dictating the verdict.  Again, the verdict can be appealed, but doing so can be expensive and can impoverish an innocent defendant.

Jury Nullification Can Be Improperly Forbidden

Juries can legally disobey the instructions of a judge to the jury.  If they sense that a case is being made unfairly, they can find a defendant not guilty, despite the orders of the presiding judge.  Judges can, however, withhold from the jury the fact that they can exercise jury nullification and even remove a juror from a case when the juror voices concerns that suggest he will exercise it.

Gaming the System Reinforces Injustice

Gaming the system includes the common practice of "judge-shopping," in which plaintiffs can seek and find courts that are most likely to rule in their favor.  The underlying problem is that some judges are known to be biased.  For example, some judges openly oppose the death penalty, while others are known to be too lenient to certain categories of perpetrators.  In principle, the law and the facts should determine the outcome of a trial, not the judge's personal opinions, feelings, or mood.

What Can We Do about It?

To use the bridge analogy, once a bridge has become visibly and seriously corroded, the need for repair does not require an expert to call attention to it.  In the case of the justice system, most of us can recognize its glaring problems and can offer useful suggestions for remedy.  The danger signs are obvious and ominous.  In many cases, the remedy is suggested merely by identifying the problem and admitting that it is a serious defect in the system.  This is the age of "see something, say something," and more of us need to get involved.

We Americans have long prided ourselves on the fairness of our system of justice.  It remains the best in the world.  But, just like a strong and magnificent bridge across a wide river, corrosion can set in.  If not monitored and repaired, the bridge can suddenly collapse.  Likewise, if we ignore the warning signs, if we do not address the inequities in our justice system, the public will reach a point when there is so little respect for the law that its enforcement will cease to be effective.  The danger is that we might become a lawless society, and that will lead to becoming a failed state.  Chaos and disintegration could follow.

Hyperbole?  Here are seven warning signs, present today, that we ignore at great peril.

Plea Bargains Coerce the Innocent to Plead Guilty

One of several defects in the current system of plea bargains is that prosecutors can coerce innocent people to plead guilty to a lesser charge, because otherwise, they may risk years in prison.  Such coercion can also entice people to give false testimony against other defendants to help the prosecutor in related cases.  Innocent people can also plead guilty, to spare family members who might otherwise be threatened with prosecution.

Costly Attorney Fees Enforce Injustice

Another reason why innocent people may plead guilty to lesser charges is because even if the prosecutor has a weak case, the defendant's legal fees can bankrupt him and his family. 

Prosecutor Resources Are Disproportionate

Part of the coercive power of the prosecutor is that he can pour far more money into his case than can most defendants.  So-called expert witnesses, such as medical, forensic, and other technical persons, can persuade a court of an innocent defendant's guilt, unless the defendant can afford to find, and pay the expenses for bringing equally expert witnesses to the courtroom to defend him.  Few ordinary people can afford to do this, however innocent they may be.

Prosecutorial Discretion Abuse Occurs

Despite the principle of equal justice under the law, prosecutors may selectively choose which cases to prosecute or not.  For example, in the Jussie Smollett case, prosecutors dropped all charges against the accused, despite overwhelming evidence that he had falsely alleged a crime, and over the objections of the investigators.  Yet, in other cases, perpetrators of false police reports are properly put on trial.

One-Judge Tyrants Deny Justice

Most courts are presided over by one judge.  This has led to the outrageous situation in which a single federal judge can overturn a law and apply that injunction to the entire nation.  It is true that such rulings can be overturned by appellate courts, but this can be time-consuming and expensive, and if the Executive Branch is unwilling to challenge the ruling, great damage can be done.  In state courts, a judge can improperly rule to exclude evidence, thus all but dictating the verdict.  Again, the verdict can be appealed, but doing so can be expensive and can impoverish an innocent defendant.

Jury Nullification Can Be Improperly Forbidden

Juries can legally disobey the instructions of a judge to the jury.  If they sense that a case is being made unfairly, they can find a defendant not guilty, despite the orders of the presiding judge.  Judges can, however, withhold from the jury the fact that they can exercise jury nullification and even remove a juror from a case when the juror voices concerns that suggest he will exercise it.

Gaming the System Reinforces Injustice

Gaming the system includes the common practice of "judge-shopping," in which plaintiffs can seek and find courts that are most likely to rule in their favor.  The underlying problem is that some judges are known to be biased.  For example, some judges openly oppose the death penalty, while others are known to be too lenient to certain categories of perpetrators.  In principle, the law and the facts should determine the outcome of a trial, not the judge's personal opinions, feelings, or mood.

What Can We Do about It?

To use the bridge analogy, once a bridge has become visibly and seriously corroded, the need for repair does not require an expert to call attention to it.  In the case of the justice system, most of us can recognize its glaring problems and can offer useful suggestions for remedy.  The danger signs are obvious and ominous.  In many cases, the remedy is suggested merely by identifying the problem and admitting that it is a serious defect in the system.  This is the age of "see something, say something," and more of us need to get involved.