Milam’s Musings, firstname.lastname@example.org
When considering the U.S. criminal justice system, one of the first things we ought to do is dispense with the notion that it has anything to do with justice.
If you were like me, you spent your holiday break binge-watching Netflix’s 10-part documentary series, Making a Murderer, and subsequently breaking anything in sight at the blunt display of injustice on the screen.
Making a Murderer tells the story of Steven Avery, a man wrongfully convicted of a rape in 1985 in Wisconsin and freed 18 years later after DNA evidence exonerated him. But that’s only the beginning of the series and his story.
I’ll refrain from spoiling for those who haven’t seen it, but the documentary series is about more than its central character in Avery. It is, in fact, a larger indictment of the criminal justice system.
It’s an indictment of a system where prosecutors, police, judges, politicians and the like work together to ensure convictions and continue to fill our prisons. It’s a system where if the government accuses you of a crime, especially if you’re a poor, marginalized person, you’re virtually powerless to stop it.
William Young, a judge in the U.S. District Court in Massachusetts, aptly observed this back in 2004.
“The focus of our entire criminal justice system has shifted away from trials and juries and adjudication to a massive system of sentence bargaining that is heavily rigged against the accused,” he said.
Our system is about convictions, not discovering the truth. That is why 97 percent of convictions in federal courts come as a result of guilty pleas. In state courts, it’s 94 percent.
We all like to think we wouldn’t plead guilty to a crime we didn’t commit, but when standing up against the weight of the government — its prosecutors, its judges, its police and its myriad laws — people, perhaps rightly, make the calculation that they’d rather plead guilty and face a lesser sentence than risk going to trial and facing a much harsher one.
One stark representation of this is the Innocence Project, a nonprofit legal organization that helps exonerate wrongfully convicted people. In about 10 percent of the cases in which the Innocence Project proved someone was wrongfully convicted, those individuals plead guilty. These individuals did so, as mentioned, to avoid a harsher sentence or worse, the death penalty.
It’s one thing to take a plea deal if you’re innocent and avoid a longer sentence, but what about actually confessing to a crime you didn’t commit? Again, according to the Innocence Project, 25 percent of people wrongfully convicted and later exonerated by DNA evidence made a false confession or an incriminating statement.
Most of us have also never dealt with experienced police detectives and prosecutors determined to win convictions.
It’s especially easy to coerce a confession out of juveniles, the mentally ill and those with low IQs, as they are even more susceptible to suggestion and conforming to the will of an authority figure.
This presents another fiction we ought to dispense with: that the police are always good. Public confidence in the police since Gallup started tracking it in 1993 has remained anywhere between 52 percent and as high as 64 percent. Only the military and small business, respectively, poll higher.
Another fiction is the infallibility of science in convicting someone. In 154 out of 325 DNA exonerations from the Innocence Project, those wrongful convictions came about due to invalidated and/or improper forensics. Forensic science is less about science and more about conviction.
Consider the bombshell revelation from last year: the FBI acknowledged that for a two-decade period prior to 2000, 26 out of 28 examiners in the FBI Laboratory’s microscopic hair comparison unit gave false testimony in 95 percent of the 268 trials reviewed. Of those cases, 32 involve defendants sentenced to death. And of those, 14 have been executed or died in prison.
Radley Balko at the Washington Post did a series on the flawed “science” of bite mark analysis. The Innocence Project again: 24 exonerees were convicted based on flawed bite mark testimony. Estimates suggest hundreds more are still in prison due to bite mark testimony, including 15 awaiting execution.
Geoffrey Mearns, the co-chair of the National Academies’ Committee on Identifying the Needs of the Forensic Science Community, testified before the U.S. Senate in 2011 that “forensic odontology (bite marks) is so far from scientific validation that it is not worthy of research funding.”
As it stands now, too much of the system rests upon false assumptions about the good will of police and prosecutors to do the right thing and an erroneous faith in science to help adjudicate.
All of these assumptions are upturned by Making a Murderer, so after you finish reading this, start binging.
So while it’s true that if the Sixth Amendment right to a fair trial was exercised in more cases in the United States, it would likely crash the system, perhaps the system needs to be crashed.
Dean Strang, one of the defense attorneys in Making a Murderer, gets at the real moral problem plaguing our criminal justice system.
“Most of what ails our criminal justice system lies in unwarranted certitude on the part of police officers and prosecutors and defense lawyers and judges and jurors that they are getting it right. That they are simply right. Just a tragic lack of humility in everyone who participates in our criminal justice system,” Strang said.
Humility is a good rule of thumb in general, but especially so when dealing with a fallible human institution which not only has the power to strip someone of their civil liberties, but potentially of their life.