An Accumulation of Injustice

Image: Monroe County Hall of Justice and Rochester City Court. Grainy overlay. Text: An Accumulation of Injustice

by Gregory Lebens-Higgins

Most people living in the United States are at least vaguely familiar with the rights protected under various amendments of the Constitution and their interpretation by the Supreme Court. In an age of ubiquitous copaganda on film and TV, many can probably almost quote their Miranda rights verbatim: ”You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.” (Although they don’t realize Miranda’s only relevance is to the admissibility of statements made while questioned in police custody.) Perhaps they’re aware of protection against unreasonable search and seizure (Fourth Amendment), protection against compelled testimony (Fifth Amendment), the right to a jury trial (Sixth Amendment), and protection from cruel and unusual punishment (Eighth Amendment). When these rights are violated, the system recognizes an obvious injustice, impinging the integrity of the process and necessitating the reversal of a conviction.

But there are many injustices to which the system remains blind. Standing as the accused is damaging to anyone forced to undergo the process, whether guilty or innocent. Defendants confront loss of employment and impoverishment, stigmatization and the loss of dignity, and exposure to mental and physical harm. These injustices occur throughout the court process, and on a daily basis. While they seem unconscionable to anyone forced to suffer or witness them, they are baked into a system that operates for the maintenance of class power and protection of property. 

Before charges are even filed, the context of criminalization is rife with injustice. Police occupy neighborhoods of poor minorities, employing increasingly militarized force and complex technological surveillance. The rich, living in lightly policed suburbs, can afford to avoid police responses. Police contact is minimized when one can access counseling to address mental illness or domestic tension, is living in stable housing, and is less likely to encounter friction with others due to the nature of their sterilized environment. Whose behavior is criminalized is also important. We hear endless fearmongering over commercial theft, drug addiction, and homelessness. But larger proceeds are stolen from workers due to wage theft, people are condemned to death due to a cruel healthcare system, and our government is complicit in ongoing genocide. These and other immensely harmful and unethical business practices are often not proscribed by illegality or met with the same calls for criminalization by government officials.

Once charges are filed, injustices continue. Often, those arrested will spend the night in jail—while “presumed innocent”—before the arraignment where they are informed of the allegations against them. Typically, no additional investigation is done prior to arraignment and defendants are often processed on charges that would be revealed as nonsense after only cursory investigation. No jail is safe. Inmates are kept in unsanitary conditions, exposed to violence, deprived of medical care, and stripped of dignity. Any time in jail also threatens one’s employment, worsening an already difficult economic situation. 

At arraignment, a judge decides whether the defendant will be held on bail while the matter is pending. The statutory considerations for bail result in unjust outcomes, where those with the luxury to develop “ties to the community” through home ownership, church attendance, higher education, or stable employment, are less likely to be held. Defendants face further complications from orders of protection—regularly issued at arraignment regardless of the input or desire of a protected party—that can effectively evict defendants from their homes, expose defendants to additional misdemeanors for as little as a phone call, and are often abused.

Defendants are not only at risk of losing employment due to incarceration. For many working people it is difficult to get a day off, and each court appearance can be a lengthy and obtrusive process. While judges usually call the cases of those with private counsel first, those represented by a public defender might wait hours before their case is called, and the bureaucratic inefficiency of the court system means that not every appearance is guaranteed to be meaningful. Each case might require many appearances before its final resolution, and there is often no control over when these will be. If absent, a bench warrant might be issued—a risky prospect for populations without reliable transport.

Once their case is called, defendants are subject to abusive outbursts from many judges—tyrants on the bench whose egos feed into the defendant’s maltreatment. Far from a neutral arbiter, judges often act as mini-DAs, prejudging the facts to shape the outcome of a case. Judges regularly allow charges to go forward on defective accusatory instruments, refusing to properly rule on the defendant’s motion because it will mean they escape “on a technicality.” Unfortunately, there is minimal security in an appeal, especially for misdemeanors. The appeals process is lengthy, and defendants may serve their sentence of jail or probation in the meantime. Defendants are often forced to accept worse outcomes because there is no immediate means by which to challenge the judge.

If defendants decide to invoke the right to trial, there will be significant additional time investment. Along with hearings and motion arguments, there could be days- to weeks-long appearances for trial. Many defendants are forced to take a plea because they cannot afford to be tied down with this process. Others are forced to take a plea because of the significant risks of trial—racial or pro-cop bias, minimum sentences, and the “trial penalty.”

Monroe County Hall of Justice (right) and Rochester City Court (left)

Even if the defendant is not incarcerated following a conviction, there can be significant and crippling effects beyond the immediate sentence. Even minor convictions such as petit larceny can severely impact employment prospects. Driving while intoxicated, a fairly common error in judgment, can result in thousands of dollars in fees, along with severe licensing consequences in areas absent of reliable public transit. Many defendants do not have the luxury of time away from work for court-mandated attendance at mental health or substance abuse programs, and these and other programs can cost significant amounts of money that it is incumbent on defendants to pay. Obviously, those in upper-income strata can more easily navigate these difficulties.

Due process is guaranteed by the Fifth and Fourteenth Amendments to the Constitution.  No one shall be “deprived of life, liberty or property without due process of law.” Equal protection of the laws is guaranteed by the Fourteenth Amendment. An honest and robust analysis of the current system’s operation would reveal clear deprivations of the procedural fairness and equal treatment supposedly guaranteed by these clauses. The Supreme Court has a demonstrated ability to enshrine further protections for criminal defendants into law, and perhaps a future slate of judges will buck the Court’s reactionary trend and address the shortcomings outlined above.

But we can’t wait for slow reform by unelected and unaccountable Supreme Court nobility. Even with the reduction of harms resulting as a byproduct from the process, the criminal justice system still exists to protect property and dole out punishment. Large swaths of human behavior are addressed in the context of courts unequipped to handle them, most of which could be dealt with by mediated conversation through a restorative justice process. Many incidents of criminal behavior could be avoided by defunding the police and providing reliable food, housing, education, and employment. Then, the criminal justice system could focus on what really matters: getting results for victims, defendants, and society that are truly just, and address the fundamental issues perpetuating these behaviors. Otherwise we are just creating ripple effects that further exacerbate the drivers of crime in our society—poverty, alienation, and untreated mental illness. We can and must do better.

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