Governor Jan Brewer of Arizona has refused to pardon a man who has spent 35 years in prison for murders he didn't commit. He was framed by his wife, an employee of the local sheriff's department. Why would a sitting governor do such a thing? The speculation is that because she is running for re-election, she cannot afford to "look soft on crime." We have all heard this phrase or a variant of it for as long as we have bothered to keep up with politics. It is one of the most enduring cliches of American electoral politics, that a candidate must "look tough on crime" to be seriously electable. Leave for the moment the question whether the cliche is even accurate (count me a skeptic). That cliche is part of a wider phenomenon that has twisted the American criminal justice system into something that is far more criminal than just, part of a mindset divorced from the principles of the Founding Fathers that has taken one thing that used to be so great about this country and turned it into exactly what our Revolutionary forefathers fought against. That phenomenon is the "It-will-never-happen-to-me" syndrome. Too many of our criminal laws are made and approved by politicians and an electorate who assume they will never have those laws applied to them, and who therefore don't bother to think through the real world consequences of the laws.
The Founding Fathers formed a system of "innocent until proven guilty" that placed limitations on the prosecutorial power of the state because they personally had been subject to the prosecutorial powers of the British Empire, and they knew how it felt. They felt the injustices personally, and they were determined not to inflict those injustices on their fellow citizens. They sought to protect future generations of Americans from what had been done to them. They knew what it felt like to be staring down the barrel of the government's gun. As a result, they insisted on the right to attorney, limitations on search and seizure, the right to a public trial in front of a jury of their peers, with the right to confront one's accusers. They also fashioned a limited criminal code and tried to codify the idea that people had all the rights not specifically proscribed, with a government that had only the powers specifically enumerated. They recognized that the people with power over others are the true threat.
We have forgotten that truism. We have fallen prey to the age-old technique of fear-mongering, and allowed laws to be passed that flout all of the principles upon which our criminal justice system supposedly rests. Politicians and the electorate have conspired together to craft a criminal code that is voluminous, cruel, and arbitrary. We have developed a criminal procedure that protects arbitrary searches, deceives the citizenry, assumes guilt, stacks the deck in favor of the prosecution, and locks people away for long periods of time over trivial offenses. We lock people up at a rate far in excess of any other nation on earth. The "freest country on earth" has the most citizens locked up.
The way it works is like this: some politician needs votes to get elected, or needs votes for a pet piece of legislation. So he seizes upon some news story, or some heart-wrenching letter from a constituent, about a heinous crime and he builds a caricature of the offender. The target offender group is always politically powerless for one reason or another. He then uses that caricature to blow the issue into a major "threat to public safety and order," a crisis requiring immediate action, and promises to "get tough" on this new threat. The people respond to the threat with outrage, and demand immediate action. A law gets passed punishing offenders severely. The public is grateful, the politician gets what he wants, and everyone is happy.
The problem is that the caricature is not accurate. It is not the Serial Killer, the Drug
Pusher, or the Deadbeat Dad who commits the vast majority of the offenses and goes to prison for years. It is someone you know, a real person. The vast majority of crimes are committed not by Criminals, but by real people with real lives who feel real feelings and make real dumb decisions. In my personal experience as a criminal defense lawyer, I have come across very few "Criminals," and very many scared and desperate people who reacted to fear of loss with some very stupid decisions. I've liked most of my clients. Most of them are actually pretty decent people. I could see myself being in their situation if things were a little different in my life. And the system treats them abominably, because it doesn't view them as people. It views them as two-dimensional cardboard cutouts, because that is the way the laws view them, because that is the way they are presented to a gullible public by a cynical ruling elite.
Most of the worst abuses of our criminal justice system that result in people being locked away for years (and rendered virtually unemployable) unnecessarily result from this phenomenon of passing laws targeting caricatures. If we want to roll back these abuses and prevent ourselves from falling for this technique in the future, all we need to do is remember to "walk a mile in another man's shoes" before judging him. When some politician proposes a new "get tough on crime" law, imagine yourself being in the situation where you might commit that crime. Does it make you an evil person by itself? Should you be locked away for years because of it? Should you be ostracized and denied opportunities for the remainder of your life because of it? Can you imagine gray areas and mitigating circumstances? Is the true situation necessarily as stark and extreme as it is being protrayed?
I want to confront these abuses. I want to show how the Drug War, marijuana prohibition, mandatory minimum sentences, three-time loser laws, and many other similar laws resulting in our massive incarceration rate and huge law enforcement budgets get their driving force from this caricature phenomenon, and how they destroy real lives by the millions. I want to delve into the realities and consequences of these laws, and propose real alternatives. We need to constantly seek to do what the Founding Fathers did, and view the law as something that could be applied to us. We need to attempt to view our fellow citizens as People Like Us, and not cardboard cutouts depicting some stereotyped Other. We should seek to make the American criminal justice system about Justice, the way we all want it to be.
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