Eleven Myths About the American Criminal Justice System

  We get all our information about the judicial system from TV shows,movies and the news media. It is easy to develop our attitudes about crime from cop shows, detective novels and revenge fantasy movies-it feels good to see the cowboy bring the guy in the black hat to justice .Unfortunately, this is mostly intentionally misleading propaganda propagated by the people who have an interest in retaining the system as it is,and bears little relation to reality. The criminal justice system is a complicated subject with thousands of factors that need to be taken into account before an intelligent opinion can be formed. The fact is that the system is broken, dysfunctional and counterproductive, and has little to do with justice and crime prevention, and more to do with money and power politics. Unless you do a little digging on your own, and read the somewhat dry but voluminous research that has gone into this subject , the American public has little clue to what is really going on in their name. Yet it is a crucially important subject, affecting millions of lives, your quality of life, and to an amazing degree, your pocketbook. Here are eleven myths that we are led to believe, but that are demonstrably not true.

1.- YOU ARE INNOCENT UNTIL PROVEN GUILTY. Every single person involved in the judicial process, the judge, the prosecutor, the public defender, the court reporter – even your defense attorney- takes it as a given that if you have reached the point of  arrest, you are guilty, if not of the crime you are accused of, then of something else. (70% of Americans have done something that could land them in prison.) Most will admit this. The determination of guilt is made by the arresting officer (and they think that everyone is guilty!) The process of judicial proceedings is a dog and pony show to give the illusion of a due process and to determine sentencing, as well as provide employment for the army of attorneys and bureaucrats affiliated with the justice system.

2. - YOU HAVE A RIGHT TO A FAIR TRIAL. If you get to a trial at all (most cases are resolved via plea bargain) you will square off against the full power and might of the state, which has unlimited resources, manpower, training and time. Against this you will be armed (if you can afford it) with a defense attorney loaded down with dozens of other cases. If you can't afford it, you get a public defender, whose job is not to get you off but to facilitate a plea arrangement. Your chances go up in direct proportion to what you can afford, so that unless you have vast resources yourself you are hopelessly outgunned. If you have little or no money you have zero chance (there's a reason why there are few rich people in prison – several reasons, actually). Even with a decent defense budget, it cannot compare to the states, whose expenses are covered by the taxpayer while you are selling your home and draining your life's savings. If you are not one of the fortunate few, you can't even afford bail, so you wait in jail where there are rules in place for the express purpose of making it difficult to mount a defense: limited phone calls, access to legal materials, copying and word processing, counseling as to legal procedure. Remember, the prosecution is not interested in the truth- once a case is in their hands they will fight tooth and nail against the introduction of alternate theories or new evidence. A trial is not about truth, it is about conflict resolution, and the goal is not justice but victory. In the  Herrara decision, the Supreme Court said that innocence is not necessarily a factor in the outcome of a trial, but that the process was correctly followed. States Attorneys job security depends on conviction rates, and the DA who says “Wait a minute, maybe we're wrong" will soon be out of a job. The SA, the police do not make mistakes.

3.- IF YOU'RE NOT GUILTY, YOU HAVE NOTHING TO BE AFRAID OF. If you are arrested and charged with a crime you have exactly as much to fear as a guilty person. The awesome machinery of the state has committed itself to putting you away, and are not listening to your protestations of innocence (they're all innocent, right?). It takes at least six months or more to bring a case to trial – in the meantime you have mortgaged your house to make bail, spent your life savings to pay for a defense attorney, lost your good name due to having it in the crime reports. If you can't afford bail or an attorney, you've spent the time rotting in a cell, lost your job, can't make house or car payments, take care of your loved ones. As stated before, the damage is done at the accusation. Even if you are cleared, that money is not refunded to you(it should be!) and the stigma remains – did he just beat the system? Was he really guilty?

4.- YOU HAVE A RIGHT TO AN IMPARTIAL JURY OF YOUR PEERS. Except that now, in the era of the Imperial Magistrate, a jury is hamstrung by lengthy and specific instructions that prescribe exactly the verdict the judge wants to receive. A jury member can be cited and jailed for contempt of court if a judge feels his instructions have not been followed to his satisfaction. There was a time when jury nullification allowed a jury to render the verdict it believed was just and fair, regardless of the law or the judges instructions. This has almost entirely disappeared from the courtrooms. In addition, a judge controls what evidence, testimony or legal interpretations a jury is allowed to consider, which presents a limited view of the defense position.

5.- ALL CRIMINAL SENTENCING SHALL BE DESIGNED TO REINTEGRATE THE OFFENDER INTO SOCIETY. So it says in the Illinois Constitution, as well as the IDOCS mission statement. (Other states have similarly worded clauses.) Mention rehabilitation to a prison administrator and you will be lucky if he doesn't laugh out loud. Nobody even thinks in these terms anymore. In fact the US Supreme Court specifically says that the purpose of incarceration is “retribution and the removal of the offender from society”

   The legal system goes out of it's way to make it difficult if not impossible for a released offender to make a go of it by placing roadblocks in his path that almost guarantee a return to prison. Probably the most pernicious is the requirement that a felon discloses his criminal record when applying for a job, and publishing it as much as it can. This makes it extremely difficult for an offender to find a job, and since one must live, eat and sleep, the offender may turn to other, less legal, sources of income. Other restrictions include the loss (in some states) of the right to vote, a ban on Internet use, denial of educational funding, access to certain jobs or licenses, access to parks, restrictions on housing, weapons and a whole list of penalties that continue after the debt to society is paid. Add this to the fact that the ex has already lost his job, home, car and life savings, and he is at a considerable disadvantage. The system wants him down and wants him to stay there, or even better, back in prison.
Vocational programs are few, inadequate (many certificates and courses are not recognized or transferable to outside universities) and hard to get into, and even these are disappearing due to budget cuts and a lack of interest by prison authorities. The system is dominated by those who believe that inmates should be locked in a cell instead of taking classes. But with very few exceptions, all inmates, sooner or later, will get out. Then what kind of citizens will they be?
6.- THE US JUDICIAL SYSTEM IS THE FAIREST AND BEST IN THE WORLD. Sure, if you compare it to Iran, China, or Saudi Arabia. Compare it to Canada, or most of Europe and you'll find it doesn't do so well. Canada's recidivism rate is at 10%, England, France, Sweden and Switzerland's stand at about !6%. The US's languishes at 67%. Crime rates in those countries, especially for violent crime, are infinitesimal compared to ours. America spends 70 billion a year on incarceration. It is the single highest expenditure in most state budgets (bankrupting many), and the US incarceration rate is the highest per capita in the world, even higher then the aforementioned Iran, China and Saudi Arabia. Because other countries focus on rehabilitation and, practical, result- based rather than ideological and punitive approaches to crime, their outcomes are invariably better. Our system makes good people bad and bad people worse. We have tried getting tough on crime. Now it's time to try getting smart on crime.

7.- PUTTING PEOPLE IN PRISON REDUCES CRIME. Not that you'd notice. We keep getting tougher on crime and the rates keep going up, so we get tougher and the rates keep...in an endless spiral. The old rule that “when you're in a hole, stop digging” applies. The idea that punishment deters crime has been blown out of the water for fifty years now. Study after statistic after research paper have continually shown the futility of the present approach, yet we stubbornly keep digging- tougher, longer, harsher. The dirty secret is that putting people in prison is not a crime reduction program, it's a jobs program and a money making proposition. Powerful unions lobby for laws that ensure overfull prisons and job security. Prison industry vendors kickback to insure lucrative contracts (there's a reason why people like Oprah Winfrey, Michael Jordan and Bob Barker are invested in the prison industry). Too many people have their hand in the till so nobody wants prison reform- it would kill the golden goose. That's why there is such resistance to programs that could result in lower prison populations. There is little to no oversight to what goes on behind bars (they're criminals, right?) so all manner of skimming, abuse and outright theft are regular occurrences. Legal reform in this country is dead in the water without confronting the entrenched interests.

8.- PRISONS ARE FULL OF DANGEROUS VIOLENT HARDENED CRIMINALS-THE WEAK ARE PRAYED ON AND RAPES, GANG FIGHTS AND ASSAULTS ARE COMMON OCCURRENCES. Yeah, in the movies. There was a time twenty to thirty years ago when some of that was true, but since the bar has been lowered for what is an incarcerateable offence the prisons are full of pretty normal, decent, and even considerate people, most of whom have either made a mistake a single time, or have broken a law that shouldn't be a law, or have been railroaded by the judicial system itself (see #1, above). Very few, even murderers did what they did out of calculated malice or inherent evil. Most are one time crimes of passion or selfishness and are not habitual or hardened criminals. Most inmates get along surprisingly well, considering, and many go out of their way to be polite and to help out others. Many volunteer to assist aged or disabled inmates, or to tutor classes. The only bullies and psychopaths can be found among the Cos, who often have self-esteem issues or other dissonances that being given power over others exacerbates. The truly violent inmates can be found in max joints, but there they are locked down in their cells twenty four hours a day. In my three years in prison, I saw maybe three fights (minor) and was aware of one sexual assault, and even that started out as consensual.

9.- INMATES ARE CODDLED AND PAMPERED, WITH CABLE TV, SPORTS, GYMS AND RECREATION, ALL PAID FOR BY THE TAXPAYERS. Inmate leisure time activities are paid for out of an Inmate Trust Fund, which is funded with proceeds from the inmate commissary, where inmates are allowed to pay ridiculously inflated prices for food and basic amenities. It is necessary to supplement the basic three meals, which are either inadequate or inedible, and the state has stopped furnishing soap, toothpaste, laundry soap etc. ,which it used to be required to do. Taxpayers are actually saving money by not having to pay for basic hygiene and clothing. The Inmate Trust Fund is constantly raided by prison officials for almost any purpose and there have been repeated lawsuits and judgements against the IDOC concerning the corrupt administration of the fund. Inmates who do not have some form of mental or physical activity deteriorate rapidly, resulting in violence, and mental and physical illness that the state has to eventually pay for. If you think inmates are pampered, I suggest you try it for a week and find out for yourself.

10.-IF YOU DON'T LIKE IT, DON'T GET SENT TO PRISON. This is a catchall phrase that is usually used to excuse abusive and excessive treatment of prisoners. As stated above, most violent and abusive behavior in prisons is perpetrated by the guards: beatings, starvation, bullying, falsification of disciplinary charges, racism and other guard behavior that crosses the line from duty to outright brutality. There is a lawsuit currently against Big Muddy, Menard and others that document particularly egregious practices by “Orange Crush”, the IDOCs tactical unit, which include broken bones, sexual humiliation, isolation, and a particular practice, called “nuts to butts” that comes right out of Abu Ghraib. There is little recourse because nobody cares. Inmates are supposedly incarcerated for breaking the law. There are laws governing prison policies and guard behavior too, and these are routinely violated with little repercussion, and excused by using the above phrase. There is a grievance system, but to file a complaint you have to file it with the very people you are complaining against, so inevitably grievances are lost, misplaced or thrown away until the filing deadline passes.

11.-WE DO NOT PENALIZE THE MENTALLY ILL IN THIS COUNTRY. Ronald Reagan's most enduring legacy is surely the cuts in mental health funding and the closing of state facilities for the mentally ill in the late eighties. The result is the marked increase in the homeless population that we have seen on the streets of every city. The ones we don't see are in prison. Fully 20% to 30% of the inmate population is either severely mentally ill, or physically handicapped, many barely able to put a coherent sentence together, follow orders, or find their way to chow hall. Since they are incapable of functioning in society, and there are no longer facilities for their care, the solution has been to lock them up. While locked up they are given high doses of psychotropic medicines (which are freely prescribed) and thrown in a cell, there to stare at walls. One of the saddest things I witnessed is the sanctioned abuse of these prisoners by guards who have no training in dealing with the mentally ill, and find it humorous to torment those who cannot possibly defend themselves. Once again, there has been some success in litigation to improve conditions for these unfortunate individuals, most recently at Dixon Psych, but the bottom line is that these people belong in a caring, professional facility, rather than in a harsh and brutal prison environment. Prisons, of course, are an incubator for mental illness. The standard prison solution to evidence of inmate mental disturbance or the possibility of depression or suicide is the “Butt Naked Room” where inmates are thrown with only a blanket - no clothes, no books, no stimulation, just four brick walls. Upon leaving the Butt Naked Room, inmates are understandably in worse shape then they entered. As mentioned above violence rates are low in prison. Suicide rates, however, are quite high. We should be ashamed of ourselves as a society that we allow these policies to continue.