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All Men are Created Equal Part II
The Justice System
I believe the Constitution is a living and breathing document designed to give the self-governed the means to challenge their representatives in times of abuse. It was set up to make it possible for the people to come together in an effort to provide for all, with the help of all. However, as potentially encompassing as the Constitution is, it is those at the bottom rung of the ladder who suffer the most from the abuses of those who govern. As well as those who have established themselves through their money and power as the best able to seek out what is allegedly consider acceptable for the whole.
It was landowners who were first allowed the right to vote under the framework of the Constitution. Landowners and merchants alike who were most effective at having their grievances heard before the government. Although everybody had the right to due process of law, in no other form has injustice prevailed as it does when a poor man faces the justice system.
Lawyers today are bought and sold by the most powerful personage in the modern world, the corporate entity. More correctly called the corporation as person. When the U.S. Supreme Court allowed corporate “personhood” to exist, they opened the door to a fundamentally one-sided advantage that gave people who could make lots of money the means to manipulate the legislative process to their advantage. It is, as I believe Abraham Lincoln described it in his speech on the Dred Scott decision, a modern definition of “tyrant”.
What makes their advantage so unjust is the fact that over the years the concept of due process of law is lost. Those who make the laws, argue for the development and enforcement of those laws have created a statutory set of laws so complex that no average person who faces the justice system in a criminal matter has any chance of understanding what they face, why they face it, or how to defend themselves against it. The corporation as person however does not have to understand what they face in court, because they can afford the best legal minds on the planet.
The average person has to be able buy legal presentation because prior to Gideon v. Wainwright not all defendants who faced the court in a criminal matter had a right to counsel. The U.S. Supreme Court made the determination that all people facing the justice system in a criminal matter ultimately had a right to be represented by counsel. That was the early 60’s. What was not foreseen was what changes would have to be made to meet such a demand.
By 1971, cases loads had become so overwhelming that plea bargaining became the preferred method of clearing court dockets. The focus was on trying to save the courts time and money. (It cost the State of California $700,000.00 dollars to prosecute Charles Manson in 1969. Some thirty years down the road it cost the State of California some $9,000,000.00 dollars to prosecute O.J. Simpson.) It was becoming apparent that abuses of the plea bargain process was a threat to defendant rights. Santobello v. New York was one of many cases that addressed this issue. The U.S. Supreme Court wanted to be sure that defendants were not being manipulated against their will to plead guilty. But, today what a defendant usually hears upon first meeting with his defense counsel is “Do you want to make a deal?”
If every single defendant in every single criminal case were to demand a trial, and would not allowed the defense, the state, or the court to manipulate his right to a speedy trial the justice system would grind to a halt. The court could not process cases fast enough to avoid the right to a speedy trial deadline. Thousands of would be felons would have to be set free. Having said that I have no doubt that the caretakers of the justice system would utilize the Patriot Act to punish defendants for such a rebellion by stripping them of their right to a speedy trial as act of terrorism.
There is also the issue of outrage by the public over criminal cases that offend sensibilities. Especially when the perception is that a criminal appears to get off easy having committed a terrible crime. An attitude I feel undermines the whole criminal dynamic of due process of law. Laws and the punishments attached to them has become so distorted that even a plea bargain comes to nothing. Effectively a defendant’s life is over regardless of circumstances. Judges are hampered by laws that were created from outrage fanned by the flames of victim’s rights.
I don’t advocate against victim’s rights to see justice done on their behalf. However, John Walsh in all his focus on the subject has lost sight of the fact that Otis Toole the man alleged to have murdered his son was clear a unique example of criminal behavior. Not all criminal behavior deserves to be judged with Otis Toole as a model for that behavior. Sex offender laws are a strong case in point. This man’s behavior reached extremes that not all criminals could contemplate let alone act on.
In my mind it supports the nature of modern day criminal legislation. Legislation based upon fear mongering generated by conservative extremists taking advantage of angry but irrational victim’s advocates. They shout that too many judges legislate from the bench in some misguided sense of justice. It undermines due process of law that was designed to protect the rights of defendants and victims alike. It assumes that judges are not fit to judge, because they don’t share the outrage. While it enhances the means by which the private prison industry and its many supporters look to fill their bed space at the expense of fellow Americans.
The justice system has been reduced to a business. People are being processed through the justice system like cattle through a slaughter house. The time has come to examine what the justice system has become, and how to bring it back to a place where due process of law prevails. It’s not about defendant rights verses victim’s rights. It’s about accountability and what it will take to restore the justice system to the place where a man is innocent until proven guilty.
Another aspect of the failure of the justice system is the so-called War on drugs. Nixon created the Drug Enforcement Agency, in response to his concern over the extreme use of drugs by servicemen in Vietnam. It was some kind irrational belief on his part that it was a communist conspiracy. It was the Richard Nixon of the 50’s who had made his reputation in Washington by fanning the flames of the communist paranoia of the McCarthy Era. It was an attitude he brought to bear on anyone he saw as a communist sympathizer, such as John Lennon.
For his part in creating the DEA he like many of his counterparts were ignoring the lessons associated with Prohibition. It’s the only Constitutional Amendment in American History to be repealed. People had a right to drink and nobody was going to tell them otherwise. It also helped to turn organized crime into a real menace. Our failure to learn from Prohibition is coming back to haunt us, because we are facing the probability that the drug war in Mexico will spill onto our shores.
Regardless of the negative effects of using these drugs, legalizing them will do many things. Not the least of which would be to create a very large taxable income for local, state, and federal governments. Taking advantage of this resource makes sense. Developing these drugs and distributing them makes even more sense. It would be like having a ready-made industry. Illegal drugs made legal as over the counter or prescription drugs would be manufactured safety and distributed legally. It would change a fundamental dynamic associated with criminal behavior by reducing the type of crimes associated with that behavior. It would also being about a focus on how due process of law has suffered from the many distorted laws created to deal with drug offenders.
Such a shift in of policy would also show the world who really benefits from the money generated by the illegal drug trade. It would show us where that money goes. Financing of terrorism comes to mind as one such benefit of financially trashing the drug cartels. It would go a long way toward solving major security issues for all nations around the world. America for all the boasting about the War on Drugs is just as guilty as any sovereign power having used the illegal drug trade in the name of national security. The Iran-Contra Scandal, the selling of drugs to finance weapons for the Contras in Nicaragua.
Thus a fundamental change in drug policy would solve many issues associate with restoring our justice system back to a more rational and responsible approach to due process of law. The issue of overcrowding in our prison system would eliminate the biggest sham in our society the private prison industry. With the addition of all this new tax revenue where would it be better spent? Education???
One final thought before I move on. The legal drug industry in this country has effectively changed the laws to allow them to speed up the process of getting newer and allegedly better drugs on the market. Done by creating short cuts in how the FDA approves these drugs for market. Just look at all the laws suits advertised on Television associated with the potentially dangerous side-effects brought about by these drugs. Then look at all the advertising drug companies use to minimize the side-effects that potentially exist in these drugs. What makes these drugs any better or any worse than illegal drugs? A good bet is that drug companies today have no way of being able to guarantee their participation in this would be new industry just like they have no control over the medical marijuana industry. Illegal drugs made legal sales will cut into the profits of the drug industry which is more important to them than public safety.
In civil cases today corporate “personhood” or any well-heeled individual such as a Kobe Bryant effectively avoid any real measure of accountability by attaching a non-disclosure agreement to a given settlement. The general public though potentially affected by the outcome of many of these cases has no right to know how they fared or why they fared the way they did. All such findings regardless of impact do more to protect the guilty than it does to protect the consumer. All civil proceedings should require public notice of outcome just as criminal proceedings have.
Thus it shows me that the corporation not only has the means to face the justice system on their own terms they have effectively helped shape the laws to their advantage. Such as through time limits on how long they can be subject to liability. If someone can be kept from finding out long enough that they may well be in a position to sue where the conditions don’t yet appear that there is an issue then time limits once again protect the guilty. There has even been a move to limit liability by trying to establish what lawsuits are legitimate and what lawsuits are frivolous.
It started with felons learning the law and taking advantage of rules designed to give them a voice in state and federal courts. Some defendants challenging the courts from prison have done much to help clean up the prison environment. But others pursue issues that don’t make a lot of sense or they are out to harass the system. So, frivolous lawsuit legislation does exist. However, what ends up being the case, is that lawsuits get thrown out of court on frivolous grounds as nothing more than a delaying tactic in the hope that a given inmate will simply give up.
The average person who goes to civil court is vulnerable because he usually does not have the means to take a lawsuit all the way to fruition. The voices out in the public and private sectors designed to help them are slowly but surely being silenced. The issue goes back to due process of law. Civil law is less demanding than criminal law pursuant to proofs because there is likely no risk of a loss of freedoms. However the laws in civil courts are just as confusing and just as distorted as they are in criminal courts. The time has come to level the playing field in civil litigation that favors no one and serves everyone. It means that there needs to be a limit on how much someone can spend to avoid a potential conviction and potential liability.
Most disturbing to me is the election season of 2000. This is where the United States Supreme Court took it upon itself to decide the election. In my mind, this court likened itself to the Taney Court of 1857. The need to resolve the election quickly was clear. But the need to establish a search for the truth was ignored. Did Governor of Florida Bush cheat to help his brother win the election? And why was nothing done about it if he did?
Justice Taney in his Dred Scott decision maintained that slaves were not individuals, with individual rights because they were property and therefore had no such rights. The 2000 Court established their loyalties which was not to the Constitution or the American People, but to their fundamental conservative political leanings. This decision will go down in American as one of the most shameless episodes of the 21st century because this was a case of politics over accountability.
I remember in school when we were being taught civics. The discussion was focused on checks and balances within our government and how it was supposed to work. It was divided into four parts. The Executive Branch as in the President, the Legislative Branch as in the U.S. Congress, the Judicial Branch as in the United States Supreme Court, and the American People. Some years later I was looking into a more recent civics book and was shocked to discover that when it came to a discussion of checks and balances in this book, the American People had been eliminated from the equation. What does that say about the state of our education system? More to the point, what does that say about the state of our media?
I have experienced the justice system as a criminal. I understood that I had committed a crime and that I was subject to punishment. However, I was a very angry young man and did not really care about the consequences of my behavior. What I didn't know was how currupt the system had become. My plea agreement stipulated that I could go to prison engage in treatment and then return to court to have a reduction in sentence considered by the court.
However, the court determined that it had no control over Department of Corrections policy. He denied this part of the agreement, and we pressed on. I pled guilty and that was that. Until I realized that the court's decision had made the plea agreement void. I spent many years trying to learn the law in an attempt to challenge that decision. All the way up until 1997 I challenged it, only to have the court decide that the decision was final because time limits to challenge the agreement had past.
It was not a shining hour for the court system. They decided that they were going to have it their way regardless and that I had nothing to say about it. The biggest issue for me what was the point of having representation that had no intention of doing the job? My lawyer had to know what the court had done and went along with the court anyway. I guess they looked to me to argue, but I was exhausted by then and didn't care.
I had argued about it in a timely fashion before I was actually sent to prison, but the lawyer in question decided not to review the transcript of the plea hearing, so never did look for or dicover the breach.
I also fought the federal court from prison in the form of a civil lawsuit. The case was Bundy v. Stommell, 168 Fed Appx. 870. The issue for me was my right to decide what drug was right for me. The prison treatment program thought otherwise. It was first classified as a frivilous lawsuit, but was overruled by the 10th Circuit Court of Appeals. By the time it got to the point where my case was going to go to trial, I had basically run out of sentence. At the point of my discharge the issue would have become moot.
With the likelihood that one more delay would put this case beyond my discharge date I settled for getting back the earned time I was losing. If I had been asked for money the case would have continued. I was not interested in money I wanted these people to demonstrate to me that they understood their accountibility as it pertained to the issues I had presented. They demonstrated that they had no idea what I was talking about.
Time limits in criminal cases and in civil cases usually works for those who know the rules and know how to work the rules. That doesn't necessarily mean that an average person undrstands the rules. Frivilous lawsuits in my mind being primarily used as a delaying tactic achieves the same purpose. An uneducated defendant may decide to quit, because they do'nt know how rules are manipulted by professionals.
The issue for me, is that the only way someone can face the justice system today is to have enough money to buy justice. J.O. Simpson spent an estimated $10,000,000.00 dollars for his defense and won. The lawsuit on the other hand cost him just about everything he had.
As I see it the justice system is bought and sold. Due process of law is a thing of the past. The idea that a man is innocent until proven guilty is a joke. "All Men are Created Equal" is slowly but surely becoming a meaningless phrase because too much corporate power stands in the way of it ever being achieved to it's full potential.