Criminal Justice is Rotten from the Cops to the Courts
By: Jill Creech Bauer
Tags: Court Reform, Institutional Racism, BlackLivesMatter, Criminal Justice Reform, Prison Reform

By Jill Creech Bauer

The American criminal justice system is rotten to its core. What began as a noble pursuit based on the U.S. Constitution has devolved into a biased miasma where few participants feel that justice is served — even crime victims. The word “justice” should probably be replaced with something more accurate, like “swamp.” The process begins with racially charged arrests, continues with coercive and unethical interrogation techniques and ends with a dire statistic — only 2% of the accused take their cases to trial. This number — 2% — is not because the system gets prosecution right 98% of the time. It is because the values that criminal justice institutions were built on have been lost in the weeds. Lady Liberty must be shaking her head. She probably stashed the scales of justice in her closet and went on vacation.

During my stint as a public defender assigned to criminal cases in Flint, Michigan from 2006–2012, it did not take long for disillusionment to set in. Though not a full-time criminal attorney, I was appointed new cases every month. I had enough contact with the process to draw some conclusions. The following is based on my experience with a state court system in a medium-sized urban community, though I suspect these problems are exponentially worse in larger urban courts.

Black men are, without doubt, disproportionately targeted by police. Most of my clients were Black men under the age of 30. I was surprised how many were resigned to the reality that they will acquire a criminal record, deserved or not. “Catching a case” is an urban coming of age rite for men of color. So many of my clients had prior contact with the courts that if I had a client with a “clean record,” I could highlight this fact and successfully negotiate a better resolution simply because of it. (If you are interested in learning more about this topic, The New Jim Crow by Michelle Alexander is excellent.)

Most of the criminal complaints filed against my minority clients began with a “pretextual” traffic stop — a completely trumped up traffic “violation” that was used as a justification for pulling over a Black driver. One client was stopped for staying in the left lane (on a local, non-highway four-lane road) too long as he passed a slow-moving vehicle. As someone who lives in the left lane when I drive, this basis for pulling him over was among the most ridiculous I encountered. Incidentally, I cannot recall a single White client that was subjected to a pretextual stop.

The pretextual stop is used to pressure the accused into allowing the police to conduct a needless vehicle search. I say “needless” because a traffic violation does not create a reasonable basis to search a car. Whether the search is warranted or not, if a gun or drugs are found, the police can then arrest the driver and file criminal charges.

(Anecdotally, I lived in a predominantly-White suburb of Flint for several years and 90% of the time that I passed a car that had been pulled over by local police, it was being driven by a person of color. A Black man that I knew who worked near this community and regularly ate lunch a fast food restaurant located in the community told me that he was stopped half the time by police. He was in his 60s.)

These traffic strategies have been broadened to pedestrians. I had a 19-year-old client who was stopped and physically searched by the police because he was walking in the street — in a residential area — when a sidewalk was available. The police report did not mention that there were no streetlights on the block and that the street felt safer than the sidewalks which were lined with overgrown trees and bushes. The court accepted “walking in the street” as a basis to search the teenager and he ended up with a criminal case for the small amount of marijuana that he had in his pocket. My client’s White suburban counterpart would never have to worry about being stopped under similar circumstances.

Complaints about tactics that target people of color fall on deaf ears in the courtroom. Even if an attorney presents a valid legal challenge to a bogus traffic stop in district court — which is supposed to serve as a gatekeeper by determining if there is “probable cause” for the charges before they are allowed to survive — cynical judges rubber-stamp virtually every case and allow them to proceed to the trial court. Clients may challenge police officers’ lies and speak of misconduct and brutality, but judges either do not believe them or do not care. Even well-meaning judges are hamstrung from doing the right thing by the current state of pro-prosecution criminal law that extends immunity to law enforcement and prosecutors for unacceptable behavior.

The complicity surrounding racial bias runs through the court hierarchy from the bottom all the way to the top. There is no true justice in most cases, so Black clients and their attorneys must determine how to navigate a Catch-22 world and mitigate the damage the system can inflict. The decision about whether to enter a plea or challenge charges by taking them to trial is difficult for people of color. They are routinely grossly overcharged and this factor is coercive.

The process works like this. A litany of excessive criminal counts is lodged against a defendant and then a “reasonable” plea offer is made that is simply in line with the allegations in the police report — which may or may not be accurate. Plea offers do not truly represent any effort to cut an individual a break. If an innocent client chooses to challenge false charges in a probable cause hearing at district court, the prosecutor makes it clear that the plea offer will be withdrawn and that charges may be added if the challenge fails. And the challenge almost always fails.

Because it is virtually impossible to prevail on a probable cause hearing, the client is faced with a horrible choice — take the plea offer or go to trial and fight excessive charges. Juries are unpredictable. Juries in Flint are always predominantly White. Prosecutors have sneaky methods for removing potential Black jurors. I do not have statistics for Flint, but nationwide, Black jurors are excluded in 72% of cases.

Taking a case to trial creates a terrible risk of being convicted of an unwarranted crime and given an excessive sentence. All of my clients chose not to take that risk and instead decided to admit to a lesser charge, even if they were innocent or overcharged or had a valid legal defense. Pleading to a low-level felony or misdemeanor was more appealing than risking being sent to prison.

Judges are complicit at the plea stage. Pleas require people to make factual admissions that fit each element of a crime. Judges ignore or even assist in the acrobatics that defense attorneys and clients must engage in to provide an “adequate factual basis” for bogus pleas. If a questionable plea clears the case off the docket, the judges are happy to play their part.

I eventually became an appellate attorney and I learned another hard truth. Many clients who give pleas have an inaccurate belief that they can challenge their cases on appeal. Part of the calculation they make is that if they acquiesce to the problems posed at the trial court level just to get things over with, they can fix things later. But the appeal system is not really set up to right wrongs that are driven by racism that happen at the trial court level.

It is almost impossible to overturn a plea-based case in the Michigan Court of Appeals and I expect that this problem extends to other states. Even trial-based cases have little chance of favorable outcomes given the fact that cases are reviewed by a three-judge panel made up of individuals who may or may not have a background in criminal law. If an appellate judge does have criminal experience, it was most likely as a prosecutor — very few people coming from defense attorney backgrounds are appointed to judicial positions throughout all levels of the court system. This skews the entire body of law in a prosecutorial direction from the very bottom all the way to the top in state court systems because laws evolve, for the most part, from the decisions made in individual cases.

There are so many topics I could discuss that contribute to the victimization of accused people. I cannot cover them all in a single article. However, I will mention a few. As I said before, the criminal justice system is rotten from the get-go. Beyond the excessive tactics used during arrest, interrogations that occur at the jail are equally unethical. The accused are held for extensive periods of time and repeatedly interviewed without the requirement that these sessions be recorded; arrestees consistently report being subject to violence and intimidation. Suspects are subtly dissuaded from consulting with an attorney because “only guilty people need lawyers,” right? If the person is poor, then any appointed attorney will not be available until long after the interview has ended anyway.

Sometimes police pose as “friends” who just want to get to the bottom of things, but they are not seeking information to exonerate the accused — they are building a case and they will meet the accused at the bottom of the barrel that they “drown” them in. Officers apply psychological pressure and feed details to detainees until the accused taint their own statements. The police are legally allowed to lie to suspects to induce confessions. Once the interrogators are satisfied that the prisoner will say what they want to hear, only then will they turn on the recording equipment. Studies show that these coercive techniques are very effective and lead to false confessions that send innocent people to prison.

Once the interrogation is over, the case is turned over to a prosecutor. Prosecutorial misconduct is rampant and troubling because there is no remedy for it. Prosecutors receive absolute immunity for their actions that exceeds the immunity granted to the police. If a D.A. withholds evidence that can exonerate a defendant, there is no penalty. If one coerces a witness to testify to an inaccurate set of “facts” or threatens perjury charges for a witness who might have evidence that will help the defense so that the person will stay away from the courtroom, there is no way to hold the prosecutor personally accountable. Post-conviction claims of prosecutorial misconduct are rarely given serious consideration at the appellate level. Over 16,000 cases of prosecutorial misconduct have been identified since the 1970s; only 2% have met corrective action.

A disturbing tunnel vision on the part of police and prosecutors seems to overtake so many cases that it calls the entire system into question. It is mind-boggling how true this next statement is for violent crimes — closing a case and obtaining a conviction is much more important than finding the actual perpetrator. Yet locking the wrong person up puts the public at tremendous risk. When an innocent person is convicted, the failure to identify the true criminal allows further crimes to be committed. When the wrong person is behind bars, murderers and rapists walk the streets, allowed to harm additional victims. Listen to stories about exonerated individuals and you will see a pattern — the reason that the actual perpetrator is usually caught is their commission of additional crimes and victimization of additional people.

Beyond the actual risk to the community, wrongful convictions are expensive. When people are exonerated, they obtain multi-million-dollar payouts for the harm they have suffered by being falsely incarcerated. Public dollars pay that compensation.

The number of podcasts, TV shows and movies about the exoneration of innocent people who have served decades in prison has exploded. The Innocence Project has secured the release of people who have a combined total of 1600 years behind bars. If you want to get a sense of how corrupt and unjust the criminal justice system has been and still is, I highly recommend the Netflix series “The Innocence Files.” In fact, episode nine highlights a Michigan case that provides a terrible case of prosecutorial misconduct and now that prosecutor is a judge.

Not everyone who is victimized by wrongful or excessive prosecution has a high-profile case. Thousands of people serve short enough prison sentences that their cases do not garner assistance from organizations who help those seeking exoneration. Yet lower-level criminal convictions follow “ex-cons” for the rest of their lives and impact them in broad and practical ways, such as difficulty finding a job, obtaining public housing, getting student loans or even voting.

The murder of George Floyd has tragically proven that the complaints that Black people have voiced about their mistreatment by the police are valid. Examples of past and ongoing police violence emerge daily. Cell phones provide undisputed evidence that cannot easily be brushed aside. Continual protests have generated a level of scrutiny and political will that may force meaningful change to engrained systems. But the change cannot end at police reform. The entire chain of the criminal justice system must be broken down and rebuilt in a more just manner. That will take a long time. What can be done in the meantime to correct past injustice? I have three ideas that could make a difference. They will need to be refined, but I hope to begin a conversation.

CREATE CRIMINAL CONVICTION REVIEW PANELS

States should establish local panels to review criminal cases, beginning with incarcerated people, then branching out to people with criminal records who have served their time. The panels should be local and consist of representatives from the criminal defense bar, prosecutors and a diverse selection of citizens. All participants should go through racial bias training before the panels begin their work.

All defendants, regardless of race, who request a review must be appointed an attorney to review their cases. Any case that is deemed to have been racially biased or unfairly prosecuted should be re-investigated by the appointed attorney. (For example, cases based on junk science or eyewitness testimony that has no other corroboration should be scrutinized. These are just a couple of issues among the litany that has emerged in the past decade that call the legitimacy of old convictions into question.) The attorney should be provided resources, such a budget for necessary testing and expert review as well as an investigator. Once the case is prepared, it should be presented to the panel and the panel should have the power to end a sentence and erase a conviction. These panels would be in a position to distribute justice more quickly than appeals courts and would not be bound by the very restrictive process and rules that exist in the court system.

The panel system would require significant funding. Our society has woefully underfunded indigent criminal defense for decades. Dedicated public defenders exist, but they are the rare exception. Generally speaking, the only people who receive a fair shake in court are those who can afford to pay for one. This societal bill has come due and we need to invest in correcting the deeply-seated injustice that pervades American criminal justice.

We have not become the country that incarcerates at the highest rate in the world because we are willing to spend a proper amount of money to weed out the innocent from the guilty. (If you want to see the type of defense that everyone accused of murder should get, watch Kathleen Zellner in action in Season II of “Making a Murderer.” Almost no one in America gets the level of defense that she provides when they choose to take a case to trial. If Kathleen Zellner cannot get Stephen Avery a new trial, then the wrongfully convicted who rot away in prison do not have much hope of having their own egregious cases set right by the courts.)

And parole boards are not the answer. They are constricted by the criminal record that is presented to them, so if it contains a falsely constructed conviction, they cannot modify it. In fact, prisoners who maintain their innocence are disadvantaged from being granted parole because of a “lack of remorse.”

A review panel could move swiftly to cancel wrongful convictions, over-prosecutions and disproportionate sentences. The existing body of criminal law has moved so far beyond community values in so many ways that it would take decades to adjust criminal laws in meaningful ways to address the racism that saturates the system. Panels are a realistic way to provide a meaningful immediate remedy for those harmed by the status quo. The authority that panels would have already exists — it is called expungement and it allows judges to erase criminal records under strict and narrow circumstances. Panels could grant expungements on a broader scale and at a faster rate.

For those of you who might say that this idea is too expensive, I would point out that housing an inmate for a year costs between $31,000 and $60,000 depending on the state. Much of this money, nationwide, goes to private for-profit companies. (These companies lobby hard and pay through the nose to prevent widespread reform that would reduce prison populations.) This public money could be diverted to panels to improve lives, correct past errors and eventually create a net savings as panels could process an individual case for less than this annual per person cost, even given the expense of an attorney. If a 30-year-old who is wrongfully convicted of murder is released, the savings for a life span of 75 is over $2,000,000.

We need a speedy solution to this problem that has been festering for decades. Panels would work. They would be an efficient means to obtain justice for people who have been wrongfully convicted because of systemic racism or outdated prosecutorial techniques. They could quickly remove all of the barriers that a criminal record creates — literally and figuratively.

REFORM JUVENILE JUSTICE SYSTEMS

The U.S. must become better in addressing juvenile justice. If we continue to get it wrong, we will drive juvenile offenders toward continued criminal behavior well into adulthood. Juvenile justice systems in almost every state are still mired in outdated practices that tend to solidify youthful offenders into a life of crime rather than deter them from one. Treating a kid like a criminal makes them see themselves as a criminal. Research shows that punishment-based programs, such as bootcamps and scared-straight programs, have led to a proliferation of recidivism rather than a diminishment of continued criminal behavior. Incarcerating children, even for a short period of time, creates trauma that leads to the exact opposite of what one might expect — they are not “taught their lesson” so much as they are assured that they are bad.

Juveniles do not commit crimes in a vacuum. Policies must evolve to address the complexities of juvenile justice in meaningful ways in order to prevent youth offenders from growing into adult offenders. Utah is a model for juvenile reform that should be copied by other states. As of July 1, 2018, juvenile offenders in Utah cannot be locked up unless the crime fits a limited range of violent offenses. Juveniles who are deemed in contempt of court can only be locked up for 72 hours. In most states, juveniles can be locked up for months or even years for low-level offenses.

Instead of harsh punishment, juvenile offenders in Utah receive intensive probation services that have a positive focus. Youth participate in cognitive behavioral therapy. The focus of treatment is to meet the youngster’s needs and replace poor decision-making skills with positive problem-solving tools. Instead of receiving a night in lock-up, probationers might receive the eyeglasses or shoes or coat that they need from the court. All fines and costs are based on family income. It is too soon to compile statistical results that prove the wisdom of this radical overhaul, but the Utah system is aligned with research and best practices and takes evolving brain research into account..

Brain research from the past two decades has solidified the fact that making 18 the age of adulthood is arbitrary. The human brain does not fully develop until age 25. Individuals who experience trauma may take even longer to fully mature. California has put this research into practice in the most progressive way that I have seen — offenders with life sentences who were 23 or younger when they committed their crime were entitled to a review of their sentence that would be informed by developmental information.

Other states fought reform and begrudgingly conducted reviews of “lifer” convictions for people who were under the age of 18 when they committed their crime only after the U.S. Supreme Court required them to. States have not been willing to embrace the logical application of the research beyond that. As a society, we need to change the definition of juvenile offender to cover people age 25 and under.

We have become a society that criminalizes too much across the spectrum. This especially shows up in juvenile justice. When I was a teenager in the 1980s, if kids got into a fight at school, the school and the parents worked things out. Now the police will be involved — often one of them is already on staff at the school — and the kids will acquire a criminal record. It is the same with marijuana and alcohol. When my generation experimented with these substances, we usually did not get arrested if we were caught. If we engaged in normal teenage sexual behavior, we did not become a sex offender for the rest of our lives. Kids these days are subject to over-policing and this trend needs to be rolled back. The criminalization of normal youthful behavior does more harm than good.

REDUCE THE NUMBER OF CRIMINAL STATUTES

The “tough on crime” mentality has driven an explosion of legislation that has expanded the opportunity to engage in criminal behavior to a level that has been tough on all of us. Some of this is driven by the desire to cut taxes. Lower revenues reduce the amount of public dollars available to fund services. The system must make up for this lost revenue. Collecting fines and costs from “criminals” is a way to bridge the gap. We need to fund the system from outside the system so that the incentive to issue more criminal complaints disappears.

This is simply my opinion, but I suspect that the slow crawl toward criminalizing more behavior over a few decades causes people to be anxious; it weakens our sense of community. Instead of working things out amongst ourselves, we just call the police for every minor conflict. Laws that determine what is criminal needed to be vetted and thinned back to a more essential level.

As a society, we have access to so much more information about scientific analysis and human behavior and development than we had when the body of law that we are currently saddled with developed. New research — information that often supports a complete upheaval — trickles in and adjusts the law at a glacial rate. Shaken Baby syndrome is an excellent example. Studies that were conducted after people convicted of this crime had been in jail for a decade completely exonerated them by exposing the fact that the original “expert” testimony was completely inaccurate. Yet the innocent people convicted of this crime were not immediately released. It takes years to go through the process of challenging convictions in the courts, even in a situation like this.

Another example is the current attitude toward sex-trafficking. Sex workers are now more likely to be viewed as victims than criminals — especially if they are underaged. This change may be preventing new convictions, but there are still women who are incarcerated or labeled criminal from this work who would benefit from having their cases reviewed. Similarly, the dynamics of domestic violence are better understood, but there are women who killed their abusers in self-defense serving life sentences. They should have the opportunity to have their cases re-evaluated through the lens of modern research about the psychology of domestic violence.

We need a means to correct the circumstances of wronged individuals more quickly. There are flickers of hope, but the system needs to catch fire. People who have been negatively impacted by an unjust criminal “justice” system do not have the time — nor should they be asked — to wait for slow reform. We, as a society, need to move quickly to reset the system for those currently suffering under it and then continue this reform by advocating for change in the law, which we know will take much longer. Let’s perform triage on this sick system by creating local conviction review panels. We can schedule the system for surgery at a later date.

Check out The Nine Lives of John Aslin by Jill Creech Bauer, the true story of an Ojibwe man who has been incarcerated in Michigan for 36 years for a nonviolent crime that caused an unintended death. Sign the petition to “Free John Aslin” on change.org