Many Americans labor under the mistaken belief that our legal system functions effectively and fairly. They have confidence in and respect for court personnel, including the judges, and in the efficacy of the judicial process itself. “Let the courts decide” is a common response to the abuses that plague our society. If there is any hope for democratic forces to regain a foothold in our political system, this dangerous myth — that courts are anything but result-oriented tools of the corporate Right, must be dispelled.
In fact, courts have become so reactionary that Americans see no problem with news reports describing the torture techniques used by the state in obtaining convictions at Guantanamo military tribunals endorsed by our current president. That individual freedoms are no longer even given lip-service in our courtrooms bothers nobody. The bottom line is “are we getting enough convictions” and “are the defendants going to serve long enough prison sentences.”
We not only have the largest prison system in the free world, imprisoning more than five times as many citizens as any European country, but our entire criminal justice system is defined and dominated by police agencies who benefit directly from the sort of repressive response we have come to expect from our government. Just as the Pentagon, and its self-serving functionaries define our international policies, police and prison authorities define how we, as a society, deal with crime.
In fact, the only fair trials that take place at this time, are those between competing corporations who fall prey to the greed and dishonesty inherent in those institutions, and are caught fighting over the spoils.
For example, California has a reputation as a state that is “soft” on the death penalty. Yet the California Supreme Court has affirmed a larger percent of death penalty appeals than any state in the history of the country. They affirm more appeals than Texas, than Florida, than Georgia, or than any of the racist cotton-belt states. The hooded cobras on the Supreme Court (as noted attorney, C.B. King used to say) watched the public vote Rose Bird off of the Bench, and will simply never provide justice to death penalty cases during their tenure. This shameful exercise in cowardice goes unmentioned and unnoticed in the press. It is as if California’s death penalty trials were 100 % accurate and pure. In fact, those trials contain more errors than any taking place throughout the state. You certainly wouldn’t know it from the court that gave “harmless error” a benighted status.
In a similar fashion, the protections afforded by the classic Miranda decision have been so twisted and modified as to be non-existent. Police can lie, threaten, or engage in any ruse or excuse to coerce testimony from one in custody, and the courts bend of backwards (or forwards, if such is necessary) to support the police (mis)conduct. A court critic recently opined: “Heretofore, Miranda only will apply to defendants named ‘Miranda.’ ”
For decades, courts have overturned convictions where the prosecutor exercised racist challenges against minority jurors. In Batson v. Kentucky, the US Supreme Court held that our judicial system would not tolerate such discriminatory behavior. In a recent California death penalty case, the prosecutor challenged four out of five Black jurors chosen to sit on the case. The excuses for these challenges were so transparently racist that they would appear satirical to most viewers. The California Supreme Court upheld the challenges, causing one commentator to say: “The Court could just as well have offered a one-sentence analysis: ‘We don’t reverse for Batson error.’ ”
The xenophobic hysteria over “illegal immigrants” has reached a point where the wholesale roundups of “foreign looking” persons has become acceptable to the press and politicians. In one recent series of arrests, fully 25% of those arrested as “illegals” were determined to be U.S. citizens. Did the ICE or the prosecutors apologize for these illegal sweeps? Of course not. Instead, the Right called for a constitutional amendment stating that those born in the U.S. should no longer be given citizenship if either of the parents was in the country illegally.
One of the most elucidating treatises on how the law can become a tool of opportunistic politicians is a book by a German author, Herbert Mueller. In Hitler’s Justice, Mueller described the German legal system from pre-Hitlerian Germany, through the end of the Third Reich. Fully 95% of the judges, lawyers, and courtroom personnel remained the same before, during and after Hitler’s reign. The legal system had no problem incorporating the demands of Nazism, including the extermination of the Jews, and the full gamut of atrocities perpetrated by Hitler and his cohorts. It was all done in the name of law and order.
We are watching a similar bastardization of the law in this country. And because the same principles of racism, nationalism and corporate greed prevail in this country that dominated Germany in the 1930’s (broken economy and all), we are charging ahead in the same lawless course. ¥¥
(Luke Hiken is an attorney who has engaged in the practice of criminal, immigration, and appellate law for decades.)