The Pathos of Politics – Criminal System

Criminal System

The criminal law is society’s most drastic tool for regulating conduct. When it is used against conduct that a large segment of society considers normal, and which is not seriously harmful to the interest of others, contempt for the law is encouraged. When it is used against conduct that is involuntary and the result of illness, such as addiction, the law becomes inhumane. When it becomes a means for arbitrary or abusive police conduct, it can cause hostility, tension, and violence. One major source of crime in the United States is overcriminalization. ~ A Report to the National Commission on the Causes and Prevention of Violence (1970), chaired by American educational administrator Milton Eisenhower

Under the pretense of justice, the modern American criminalization system universally serves to create societal castoffs and destitution. Defending oneself against a wrongful misdemeanor charge can easily cost up to a year’s salary for those least able to afford it. The penalty for not doing so can be higher.

In 1974, President Richard Nixon created a federal legal services agency to provide free legal assistance to low-income people. 70% of those seeking legal help are poor women in dire need. The agency’s miniscule budget means that half of those who need the service are turned away.

30 cost-benefit analyses all show that legal aid returns far more benefits than costs to communities across America. ~ American lawyer Linda Klein, President of the American Bar Association, in 2017

Republicans since Nixon have opposed government funding of legal services, miserly and mean-spiritedly arguing that helping people in need is not the government’s responsibility. These are the same men who have no issue with ladling largesse to corporations and the wealthy.


Few criminals are apprehended red-handed. Instead, someone is brought to dock after an investigative process that creates a case from circumstantial evidence, where each evidentiary tidbit is probabilistic at best, and thereby problematic overall. Most criminal cases hinge on a few pieces of evidence, often only a solitary scrap around which a story is spun by police and prosecutors hell-bent on getting a conviction. The more heinous the crime, the more determined the state is to make someone pay – anyone.

Eyewitnesses are commonly considered reliable, but that is seldom the case. Part of the reason is that the event witnessed was stressful – a time when memory is especially fallible.

Eyewitness identifications are highly unreliable, especially where the witness and the perpetrator are of different races. ~ Alex Kozinski

Mistaken eyewitness testimony figures in over 1/3rd of wrongful convictions. Yet most American criminal courts won’t let defendants question the reliability of witnesses or instruct juries to be skeptical of eyewitness testimony.

Fingerprints and other forensic evidence are not nearly as reliable as commonly construed, including DNA evidence, which is easily contaminated. Faulty forensics is estimated to account for almost half of all wrongful convictions. Crime labs around the country are known to be sloppy, with fraud aplenty. Such shoddiness is not in the past – it is ongoing.

The absence of oversight in forensic science is alarming. ~ American criminologist Jessica Henry

The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a 2-decade period before 2000. ~ American investigative journalist Spencer Hsu

In 2004, the FBI announced it had “a 100% match” on a fingerprint in a terrorist bombing in Madrid, Spain. The FBI conceded its error only after Spanish investigators linked the print to someone else.

Other fields of forensic expertise, long accepted by the courts as largely infallible, such as bloodstain pattern identification, foot and tire print identification and ballistics have been the subject of considerable doubt. Some fields of forensic expertise are built on nothing but guesswork and false common sense. ~ Alex Kozinski

Even confessions can’t be counted on. Someone sufficiently stressed will admit anything to gain relief. The harsh interrogation tactics police use to elicit statements which will be taken for a confession even when they are not.

Innocent people do confess with surprising regularity. ~ Alex Kozinski

Police falsify or plant evidence as a regular practice. They also conceal evidence which indicates innocence, as do prosecutors as a matter of course. All the way around, crime is a crooked business in the US.

There are countless documented cases where innocent people have spent decades behind bars because the police manipulated or concealed evidence. There are countless ways in which prosecutors can prejudice the fact-finding process and undermine a defendant’s right to a fair trial. ~ Alex Kozinski

Wrongful Convictions

The supreme court’s recent emphasis on shielding public officials and federal and local law enforcement means many individuals who suffer a constitutional deprivation will have no redress. ~ American jurist Jack Weinstein

The 21st-century Republican supreme court has seen fit to deny appeal (habeas corpus) to prisoners who were wrongly convicted, and to deny that prosecutors and police be held accountable for brutality and injustice.

The collapse of habeas corpus as a remedy for even the most glaring of constitutional violations ranks among the greater wrongs of our legal era. Habeas corpus has been transformed over the past two decades from a vital guarantor of liberty into an instrument for ratifying the power of state courts to disregard the protections of the constitution. Along with so many other judicial tools meant to safeguard the powerless, enforce constitutional rights, and hold the government accountable, habeas has been slowly eroded by a series of recent supreme court rulings that aim ultimately at eliminating that judicial method of protecting individual rights. Understand that most of our current habeas law is the product of choices, many of them seriously ill-advised, made by a deeply conservative Court. ~ American jurist Stephen Reinhardt

It is impossible to know the number of wrongful convictions for any country, as they are discovered only after excruciating effort and a plaint court admitting its mistake; but the known numbers are chilling. In the US, over 4% (1 in 25) of defendants sentenced to death in the US were wrongfully convicted. There were at least 3.2 wrongful felony convictions per week in 2016.

Those numbers are surely far lower than actuality, as they represent only those wrongly convicted which the court reluctantly recognized; not those wrongly convicted who could not manage to chart a recourse.

Most of those accused cannot afford to defend themselves, and so take the deal that a district attorney offers. This is especially common in misdemeanor cases.

The mean time served for exonerated felons is 14 years. Many spend several decades rotting in prison before the evil of a vile system comes undone.

Most wrongfully convicted are stuck with their dismal fate. In the US, millions are behind bars only for the crime of being in the wrong place at the wrong time, or for having the wrong personal contacts; or, more simply, for awry court management.

Courts use software to keep track of those of who entered the criminal system and the status of their cases. Errors are so common that several hundreds of people a day are arrested and charged because of incomplete or wrong data entry coupled to a faulty computer program that turns innocent people into criminals by facilely flipping bits.

In Brady v. Maryland (1963), the supreme court decreed that prosecutors must disclose all evidence favorable to the accused. Since then, in 75% of cases resulting in exoneration, prosecutors were found responsible for the wrongful convictions.

Unlike public defenders and court-appointed attorneys, prosecutors have all the funds and resources needed to do their job. Wrongful convictions do not stem from a lack of wherewithal. Instead, they emanate from base immorality and lack of accountability.

A big problem with prosecutors is that they get vested in winning rather than in what is right. ~ American district attorney Sarah Wolf

Prosecutors operate under absolute immunity. In failing to own up to their mistakes, and covering them up when necessary, prosecutors protect their own careers. They do so at the cost of others’ lives.

Within the past decade the sense that wrongful convictions regularly occur, that they result from structural flaws in the criminal justice system, has gained a foothold in the legal and criminal justice communities. ~ American professor of criminal justice Marvin Zalman in 2012

In the years since Marvin Zalman’s study, little has been done to improve the American criminalization system: the state continues to inflict untold unjust harm.

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Recompense for exoneration varies by state. 19 states do not make amends for their grievous mistakes. The illicitly convicted must try to claw some compensation through civil litigation: an expensive and seldom successful process.

Of the 31 states which provide compensation for wrongful conviction, payments vary considerably. Texas pays $80,000 for every year incarcerated. Meanwhile, miserly Wisconsin shells out only $5,000 per annum for being unethically parked in prison.


Anyone released from prison faces greater discrimination than before they went in. There is no way someone convicted of a serious crime can repay their supposed debt to society. The stigma is indelible.

Hence, criminalization is essentially a prolonged state act of terror. Its infliction is overwhelmingly on society’s underclass and serves to perpetuate social stratification.

The criminal justice system’s differential treatment of dominants and subordinates is clearly systematic and essentially inseparable from the expression of group-based power. ~ English psychologist Jim Sidanius & American social psychologist Felicia Pratto