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Reflections on Gideon's 49th Anniversary: Criminal 'Justice' vs. 'Criminal' Justice By Ray Kelly
(From the March 2012 Newsletter)
Reflections on Gideon's 49th Anniversary: Criminal "Justice" vs "Criminal" Justice
By: Ray Kelly, Esq.
After almost 40 years of laboring in New York's criminal justice system, one of the occupational hazards defending fellow human beings is the deeply felt frustration resulting from the inequities of the system. While the self-righteous intolerants of the world decry the protections of the Bill of Rights - - aided in their endeavors by prosecutors who cultivate voters by their take-no-prisoner stance against human-beings accused of crime - - the practice of criminal law takes a toll on any defense lawyer's capacity to remain ever vigilant. Given the daily outrages inflicted by police, prosecutors and, in some cases, judges, it is all too easy for us to become hardened to the systemic inequities of the criminal justice system. What follows is a call for all members of the bar, not just criminal defense lawyers, to renew our oath of constant vigilance on behalf of society to implement short-term and long-term solutions to the reality of crime. On March 18th, we celebrate Gideon's 49th anniversary. This is a call to effectively implement the commitment we as attorneys, our courts as arbiters of justice and our society as a culture enshrined in Gideon v. Wainwright, the 1963 U.S. Supreme Court pronouncement mandating the appointment of counsel for those Americans not able to afford a lawyer.
Should the emphasis in criminal justice be on the word "justice" or on the word "criminal"? Should the policies of the past 45 years be subjected to the crucible of public opinion? Whose obligation is it to identify inequities and make recommendations for improvement?
Notwithstanding that America's incarceration rates remained basically stable from the 1920s until the 1970s, former President Nixon's "war on crime" platform, followed by the presidencies of Ronald Reagan and George Bush, resulted in tough-on-crime policies which increased the warehousing of fellow human beings and dramatically increased the length of sentences. Incarceration rates have almost quadrupled so that sentences served today are more than three (3) times as long as those meted out in 1980. A fair review of crime statistics resulting from the so-called "war on drugs" reveals that our drug policies have intentionally targeted drug users in lower class neighborhoods resulting in imprisonment in numbers grossly in excess of their actual participation as drug users and sellers. Overall, incarcerations for people of color are seven (7) times higher than for all others. Why have these cruel and unnecessary sentencing policies been implemented?
Purported criminal justice solutions over the last four (4) decades have been consistently driven by political motivations rather than by reasoned public policy considerations. Cold-hearted political calculation has resulted in public electoral debate pandering to the American electorate's worst class prejudices. With all of America's ingenuity, the "war on crime" and the "war on drugs" have utterly failed. Why? Crime is big business in this country. The monied-think-tanks behind political campaigns have a vested interest in ensuring that the crime problem is not solved. The rich get richer. The poor get prison. The status quo is maintained. As long as 47% of America is fighting with 47% of America, the 6% in power continue to follow the only rule of politics - - once you get power, keep it at any cost.
The failed policies of the last 40 years have cost America far too much. Who is actually losing the "war on crime" and the "war on drugs"? What price are we paying as a society? What alternative criminal justice policies would be both more humane and more effective?
It is imperative that all lawyers ensure that politicians, legislators and the power brokers controlling election issues come to understand that crime is directly related to social and economic conditions in society. In order to solve the crime problem, sound bite rhetoric and bumper sticker slogans must be replaced by reasoned and adequately funded social programs. Committed endeavors in education, employment, job training and drug abuse guidance must be implemented to address the root causes of crime. We must send our legislators a message - - forget the "soft" or "tough" on crime dialogue - - solve the problem!
We must urge our legislators to study the effect that draconian sentencing policies have had in our communities not blessed with the abundance of the American dream. Incarcerating disparate numbers of the poor has proven to devastate family after family. How much longer are we to tolerate generations of fatherless and motherless children by giving in to the "nothing works" ideology?
As lawyers, it is our responsibility to expose the hypocrisy and myths currently hindering our crime control efforts. Most of us became lawyers because we wanted to make a difference. How do we meet the challenge? Can we change the dynamic of the criminal justice system from back-end to front-end spending? Can we help our legislators understand that spending $26 billion on cops and prisons but only $2 billion on education simply dupes the public into believing that only a "war" can solve the problem?
Thousands of clients have taught us that children without a future cannot be threatened, intimidated or punished into good behavior - - our children must be given self-esteem, hope and resources to succeed.
On Gideon's 49th anniversary, it is incumbent upon us to open the eyes of our legislators and fellow citizens to the forces that operate to influence the criminal justice system. With reasoned debate, we can champion both short-term and long-term solutions to the crime problem so that tolerance, family, individuality, jobs and economic justice become imbedded in this great experiment that is America. Our children and our children's children deserve our resolve.