A Hard Look in the Mirror

Every year since 1977, the State Department has written a report on human rights in every country in the world.  It is a meticulously researched, written and edited document, and is highly praised by human rights activists and scholars throughout the world who use it for reference.  I’ve participated in producing many of these reports, writing some and editing more.  I’ve also enjoyed the privilege of defending its findings to angry governments all over the world, who are understandably upset that their misdeeds are being called out in such a frank and no-nonsense manner.  Personally, I consider it a point of pride and a privilege to have been allowed to speak truth to power in such a way, to give a voice to the countless victims in these countries.

In these reports, the State Department, among other things, reports on the justice system in each country, on whether the web of laws, courts and law enforcement bodies in each country generally protects or abuses the rights of its citizens, and in what ways.  The language of the report is generally dry and factual, short on hyperbole and emotion.

One thing the State Department does not do is report on human rights in the United States.  In fact such reporting by State is forbidden by law, forbidden by Congressmen who either feared it would become politicized or who did not think such introspection would be helpful.  Various human rights organizations do write reports on the United States, and their reports are interesting reading, but none of them have either the rigorous standards or the inherent credibility of the State Department’s Country Reports on Human Rights Practices.  China also writes a report, largely to strike back at us for writing so critically about them, but it is hardly a model of credibility.

So, I’d like to briefly summarize, in the type of language the State Department would use, what might be written about our own justice system.  We Americans are, with considerable justification, proud of our system of justice.  It does indeed, have many things going for it, and overall it compares well to most other countries.  There are a few areas, however, of which we should not be so proud, that frankly compare more to practices and results in authoritarian dictatorships rather than liberal democracies.

I think it is about time we looked hard in the mirror at our own justice system and began the process of badly needed reform.

Here is how I believe the State Department might describe certain areas of our justice system.

Police Killings

In 2017 there were nearly a thousand people killed  by law enforcement officers in the United States.  About ten percent of those killed were unarmed at the time.  17% were fleeing when they were killed.  Nearly a quarter of those slain were mentally ill.  For comparison’s sake,  more people are killed by police in the United States each year than in every other advanced democracy in the world combined, by several orders of magnitude.  The only countries with comparable rates of police killings are in the developing world, such as Brazil, Colombia and El Salvador.  There are credible allegations that some of the killings in the United States are connected to racial bias, and racial minorities are disproportionately killed by police officers, according to statistics compiled by journalists.

Rarely does a police killing result in any charges, and it is even more rare for such charges to result in conviction, but there have been a few cases in the last year.  These convictions almost always came only  when video footage of the killing became public showing evidence of police misconduct. 

Critics have pointed out significant potential problems in police recruitment, training, tactics and equipment that might lead to unnecessary deaths.  These critics allege that police officers currently are trained and equipped to respond as warriors, rather than the traditional role of peace officers. 

Others have pointed out that the high level of gun ownership in the general population undoubtedly contributes to the number of killings, as it makes violent confrontations more likely.  Indeed, more than half of those killed by police had a gun in their possession, although not all of them had drawn it and many legally possessed those weapons.

In addition, despite the lack of statistical evidence for it, many right-wing political groups have been pushing the idea of a “War on Cops”, sensationalizing the relatively rare killings of police officers by criminals (51 in 2017, a little higher than 2016, but still relatively low by U.S. historical standards).  This publicity campaign is thought by some critics to have created a dangerous siege mentality among law enforcement officers, a perception that they are under more danger than they actually are, which could lead to confrontations becoming violent more easily.     

Despite heavy press attention to the issue, and significant public protests about racial bias, the figures on such killings are virtually unchanged from other recent years.  No real reform effort to address the issue has taken hold at the national level, although some state and local governments have taken promising steps.  The current administration denies reform is needed and instead pushing a strong “law and order” agenda designed to appeal to working and middle class non-minority voters.

Prison System    

The United States has more of its citizens in jail than any other country in the world, more than 2 million, close to one percent of the total population, including about 70,000 minors.  In terms of percentage of population incarcerated, only Russia even comes close.  In comparison with other developed countries, the United States has more than four times as many people incarcerated as any other, as a percentage of population.

The high rate of incarceration seems to be linked to controversial mandatory sentencing laws, particularly as they relate to relatively minor and non-violent drug offenses.  About 20% of those incarcerated are due to drug offenses.  Only about a third of those incarcerated in the United States are convicted or accused of violent offenses.

Minorities, particularly African-Americans, are heavily overrepresented in the prison population, and whites are heavily underrepresented.

One disturbing trend is the move toward privatization of the prison system.  In 2017, 7% of all state prisoners and 18% of all federal prisoners are held in privately owned, for-profit prisons.  Despite credible studies linking such prisons to violations of basic human rights including abuse, some jurisdictions continue to explore moving to this option.  Critics point out that introducing a profit motive into incarceration creates a strong potential for corruption and abuse of human rights. 

Despite these disturbing numbers and credible research indicating incarceration may not be an effective deterrent to crime, there is no current initiative at the federal level to reform prisons and reduce the prison population.  To the contrary, reforms undertaken by the previous administration that were highly praised by human rights advocates have been reversed by the current administration.  This issue has also been politicized to some extent, with emotional appeals designed to appeal to the public’s desire for vengeance against criminals.  These appeals have been credibly alleged to have a racial component as well.

Racial Bias in the Justice System

Credible reports of pervasive bias in the justice system at all levels were again the norm in 2017.  Academics continued to publish studies pointing out this bias.  Some of the perceived bias may be laid at the feet of an inherent bias in the U.S.’s adversarial system against poorer defendants, who cannot typically afford high quality legal representation, and in favor of wealthy defendants, who can and do.  However, these studies clearly show that, even correcting for wealth, minority defendants are disproportionately arrested, convicted at trial, and are given longer sentences than whites accused of the exact same crimes.  Wealth, or the lack thereof, just exacerbates an already existing problem.

Again, steps taken by the previous administration to address this issue have been reversed by the current administration, which has also sharply cut back the federal government’s traditional role in enforcing civil rights legislation designed to bring about racial justice.

Government Surveillance   

Despite heavy negative publicity in recent years after the existence of federal intelligence and counter-terrorism programs that made it possible for intelligence and law enforcement officials to sweep up vast amounts of communication by citizens accused of no crimes without a warrant, such programs largely continued unabated.  Critics pointed out the potential for this information to be misused is enormous.  Public opinion does not support these programs in general, but neither political party has moved effectively to curtail them.

Asset Forfeiture     

Law enforcement officials at all levels continued to abuse asset forfeiture legislation established to combat terrorism and organized crime.  Since 2008, law enforcement bodies have seized more than $3 billion in assets, much of it done without a valid warrant or criminal charges against the person from whom the cash is seized.  In many cases, charges are never filed.  Procedures to appeal the seizure are complicated and require expensive legal representation, and few are successful in recovering their property, even if they are never charged with a crime.  The program allows state and local law enforcement agencies to retain most of the funds seized for their own purposes, while passing a portion of the proceeds to federal law enforcement agencies.

Critics of the program point out that, in establishing a profit motive for police to make more and more seizures, there is an inherent potential for abuse and corruption.  the existence of such abuse and corruption seems to be born out by the statistics, which show that very few of those from whom assets are seized actually have any links to organized crime or terrorism, the purported main reason the law exists.  In fact, journalists have documented that many of those whose property was seized were originally pulled over for minor traffic infractions and subjected to constitutionally questionable searches that resulted in confiscation of large amounts of cash even with no other evidence of a crime. 

Again, efforts to reform this program in the late stages of the previous administration were reversed by the current administration.  Under political pressure from personal liberties advocates in both parties, the Attorney General did establish a watchdog body for the program in late 2017.

We have a right to be proud of much about our justice system, but there are some areas in which it does not stand up to scrutiny.  Areas in which the United States seems to be guilty of significant human rights abuses.  Areas that aren’t pretty to look at, that don’t make us feel good about ourselves.

However, if we want to continue to be known as “Land of the Free”, we need to do so.  Serious reform is needed.

 

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