As Americans waited for the Supreme Court to decide the fate of Obamacare earlier this year, we engaged in heated debate about the Court itself and the respect it should be afforded. The Court has always had its critics; none more famous than FDR, but it seemed to many that the Court’s members had become more blatantly political and that its credibility could be waning. As a legal idealist, I find both possibilities troubling; after all, the Court was designed to be the ultimate check on the excesses of the executive and legislative branches of government.
I entered law school with a positive impression of the United States’ system of justice, its fairness and the rights and protections afforded its citizens. As a young man I was afraid of and appalled by the systems that existed in other parts of the world-the Gulag mentality of Russia, the totalitarian system of Red China, and the medieval systems of the Middle East. I was frightened by the movie “Midnight Express,” the story of Billy Hayes as brought to life by Oliver Stone’s Academy Award-winning screenplay that recounted the young American’s experiences in a Turkish prison. I thanked God that America had a system of justice that tempered justice with mercy and afforded each of us basic constitutional protections.
Through my years of practice and as a judge, I saw the flaws in the system and became increasingly alarmed at the erosion of individual protections by politicians who pandered to our fears. The first day I stepped into the alcove outside the Attorney General’s office, I read the inscription that rings the space: “The United States wins its point, whenever justice is done its citizens.” I was moved to believe in the truth that justice trumps winning or losing and that our system was the finest example of the principles upon which our country was founded.
Other countries clearly respected and even envied our justice system. Emerging countries modeled their systems on ours and asked for our help in training their judges and law enforcement. Our laws became models, and the rights afforded the accused such as Miranda became the law of all but the harshest totalitarian states.
Then came the great stampede on our citizens’ rights-the War on Drugs. Judicial discretion and tolerance were displaced by mandatory sentences and law enforcement found its pot of gold at the end of the rainbow-civil forfeiture. The result?
The United States incarcerates its citizens at a higher rate than any other country in the world, including Russia and China. Civil forfeiture has become the greatest gold rush in history, generating close to $2 billion dollar of revenue for law enforcement in 2010 alone.
The War on Drugs continues to this day, with no visible result except more sophisticated drugs and smarter dealers, overcrowded prisons and a zealous regiment of prosecutors and law enforcement officers determined to keep their jobs. The events of 9/11 gave rise to a new set of laws, including the Patriot Act, that have all but eliminated the hard-won protections given us by the Warren Court, just a few years after our nation fought against oppression and injustice in World War II. As our memory of what we fought against has faded, so has our resistance to the laws that took away the very freedoms for which we fought. Our leaders replaced our love of freedom with fear.
Now, both at home and abroad, we see a growing loss of respect for our once model system of Justice, a loss brought on as the world witnesses a new system of bullying and harsh laws in the post 9/11 era. In two high-profile cases separated by half the globe, Julian Assange and Kid Dotcom, countries around the world question whether a criminal defendant can get a fair trial in the United States and whether justice here is only defined by a policy of winning isn’t just important, it’s everything.
In the recent actions charging Roger Clemens and John Edwards, juries have rightly rejected overzealous prosecutors who used millions of taxpayer dollars in their attempts to win at any cost. And to what end? These and similar prosecutions only serve to increase our growing distrust in the American legal system.
It’s not just our Attorney General who should worry about this trend. The State Department and the U.S. Military should be concerned about the ramifications of an international perception that we have a stacked system of justice. Our international reputation is increasingly at risk-unless we welcome being known as the “back-yard bully” and having a justice system reminiscent of Stalin.
To paraphrase FDR’s second inaugural speech, “I paint this picture not in despair… I paint it for you in hope,” the hope that our nation, realizing the alarming trends in our system, will determine to “paint it out.” So pick up a brush-next time it could be you.