Tuesday, July 7, 2015

Does Due Process itself need an Amicus Curiae

(Observations in the "Presumed Innocent" series)

One thing I have noticed in my time living in the United States and my time living in parts of Africa, Asia, and elsewhere, is that criminal justice systems are often overloaded by suspects awaiting trial. Incarceration facilities are over-filled with inmates, and plea bargaining is increasingly used to decrease backlogs of cases, and to apply processing of those held within the system of criminal prosecution, incarceration and appeals. These conditions are not conducive to the protection of the innocent, of society at large, or to the impartiality of courts and processes of “justice.”

In my experience, discrimination based upon affiliation, attribution, or physical aspect may be most easily identified when racial color is involved, but religion (differences of sect or differences of overall definitions of faith), class/caste, gender, and many other factors contribute to social, economic and educational exclusion, presumption of guilt, and the deprivation of due process or even of basic human rights.

In too many places, factors such as inclusion, affluence, education, and cultural impressions (or socially learned/accumulated distrust) of the law, justice, judicial systems, and concepts of freedom/democracy affect both the capacity to expect/receive, and the capability to obtain equal arrest and processing treatment, information, access to efficient and sufficient legal support, and disbursement of justice. In too many such places, the pre-trial plea bargain, and appellate processes are less likely to uphold the swift and impartial process of law, than to serve as a calculated gamble to mitigate the negative impact of criminal charges, findings, judicial decisions and punishments even in those systems where public defenders are available.

Further, in some places, and at some levels of trial even in the U.S., neither a “trial by jury of peers,” a bench trial, nor administrative process unfailingly uphold any promise of fairness or impartiality. In some cases, yes, innocent suspects are wrongfully convicted. In some cases, these innocents are exonerated. In other cases, the barrage of legal expertise hired by defendants wrongfully paint innocent victims/plaintiffs as criminals groundlessly and maliciously accusing their clients. Juries are swayed by theatrics and misinformation, the quest for truth takes a back seat to the power of persuasion, and actual perpetrators are released while victims are left with neither the credibility, funds, process, nor the stamina and courage required to pursue an appeal for justice. In such an atmosphere, discrimination of all sorts, against those wrongfully convicted and against those wrongfully victimized, continues to thrive—because those bearing the brunt of the abrogations of justice remain effectively voiceless.

It is an unfortunate reality that there has been, and may for some time continue to be, a clash of black and white stereotypes (and, with less media attention, within the multitude of demographic, cultural, and racial subgroups struggling for a sense of identity and space, a balance of inclusion with autonomy, a balance of integration with adhering to known practices and heritage) within the criminal justice system in the U.S., but I think this is one small, very visible piece of a more insidious, much larger national, and even global disconnect between the expectations of justice, and realities of crime and punishment between those equipped to successfully navigate or even manipulate the systems of justice and power, and those who are not.

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