The American Injustice System: Manufacturing Criminals

Earlier this year, Netflix released Making a Murderer, a 10-episode series that examines the life of Steven Avery. Avery spent 18 years in prison for a rape he didn’t commit. Avery was exonerated with the aid of the Innocence Project and the actual perpetrator was found. To date, the work of the Innocence Project has led to the freeing of 343 wrongfully convicted people based on DNA, including 20 who spent time on death row and the finding of 147 Making_a_Murderer_titlecardreal perpetrators. The TV series then goes on to follow the prosecution of Avery for a second major crime – murder. I would like to focus on this first arrest and later exoneration.

Making a Murderer follows a long line of documentaries that question the results of the criminal justice system in the United States. From The Thin Blue Line to The Central Park Five, American police and prosecutors have been shown to get things wrong. These are not isolated mistakes but, rather, a trend. A trend of innocent people – mainly young, impoverished, African American males – arrested for crimes they didn’t commit and send to prison for long lengths of time. This trend has a long history. It dates back to the American civil war through the Jim Crow era and into modern day drug policy. The two books The New Jim Crow: Mass Incarceration in the Age of Colorblindness by Michelle Alexander and Just Mercy: A Story of Justice and Redemption by Bryan Stevenson document this history well. The result is staggering:

  • The United States has the highest rate of incarceration in the world.
  • In 1972, there were 300,000 people in jails and prisons. By 2012, there was 2.3 million.
  • Seven million people are on probation and parole.
  • One out of three black men, between the age of 18 and 30, are in jail, prison, probation or parole.
  • The United States imprisoned a larger percentage of its black population than South Africa did at the height of apartheid.

Racism and poverty are at the heart of this system. Poor communities and communities of colour receive different punishments than those found in rich, white neighborhoods. This inequality is mixed with a desire for maximum punishment. If there’s any hope at solving the massive problems within the American criminal justice system, the root causes need to be brought to light. The System attempts to do so.

The System is a series of eight documentaries, produced by Joe Berlinger on Al Jazeera English. Each episode examines a single element of the American criminal justice system and can be watched below.

Four of the films explain why so many men and women are imprisoned. The reason is that they’re innocent. An in the other documentaries noted above, if an innocent person goes to prison, a guilty person does not. This means that they can continue committing crimes while innocent parties take the fall. There are four films in The System that explain this and the connection to racial and class inequalities.

An additional four films discuss the harsh punishments that face people (again, many of whom are innocent) once they are locked up in prison and even after they are released. In this era of ‘War on Drugs’ and ‘Law and Order’, the U.S. has passed several extremely harsh punishments. Punishments that also affect children – the U.S. is the only country in the world that has allows sentencing of 13-year-old children to life imprisonment without parole (sentenced to die in prison). These are some of the reasons that America has become the world leader in jailing its own citizens.

The System-Tiles

Locking Up Innocent People

Of the first 250 cases of DNA exoneration in the U.S., 76 percent had eyewitness mis-identification and 36 percent had more than one witness. One reason for these errors, described by Jennifer E. Dysart of the John Jay College of Criminal Justice, is relative judgement – people narrow down their options and pick the one that seems the best. Relative to the others, you choose the one that’s the best.

Try it for yourself. Look at the 12 U.S. pennies below and select the one that you think is correct. (Continue reading for the correct answer.)

The Penny Test: Which one is correct?

This simple test simulates a police lineup, where images of suspects are given to a witness for identification. Because memories are reconstructed, they are easily subject to contamination by post-event information, says Dysart whose research is profile in the episode ‘Eyewitness Identification’. There are many factors that cloud ones memory including uncontrollable factors (short exposure, lighting, distance) and controllable factors by police and investigators (911 call, crime scene control, witness interviews).

One of the interesting uncontrollable factors is the cross-race effect. In this episode, two innocent black men were misidentified by white witnesses. Even though the witnesses selected individuals who had inconsistent height and did not have the correct physical identifiers, the men were still convicted. In general, people are not very good at noticing differences among other ethnicity. A cross-age effect has also been found in eyewitness identification.

A controllable factor of note is identification procedures. And relates to the penny test above. Law enforcement are supposed to tell the witness: “The real perpetrator (or penny) may or may not be there.” None of the pennies above are correct. If you picked one, you picked the wrong one. The same is true with police lineups. The police pull together images of “suspects” and witnesses select one, whether or not the criminal is actually shown. Dysart and other researchers are working to improve the procedures of law enforcement so that miscarriages of justice like this stop.

Like an eyewitness identification, a confession of a crime is often taken by law enforcement and courts as absolute truth. However, in 27 percent of cases with DNA exoneration, the defendant gave a false confession. In two cases profiled in the episode ‘False Confessions’, convictions were reached largely on the defendant’s confession. One of these cases involve a Las Vegas woman who experienced a sexual assault, an attempted rape. When investigators came to her home to talk, she thought they were saw her as a victim. Instead, they saw her as a criminal. One month after her ordeal, a murder occurred on the opposite side of the city from where she was attacked. Police didn’t believe her story and instead pinned the murder on her.

Beyond disbelief of victims, law enforcement use all sorts of tactics to gain confessions. Police interrogations can be hours long and use lie detector machines, which are unscientific but great at inducing stress. In many documented cases, police have gained confessions from young people, some who do not understand what they are agreeing to. This is exactly what happened to Jeffrey Deskovic, the second case documented in this episode. After 16 years of imprisonment, post-conviction DNA testing both proved Deskovic’s innocence and identified the real perpetrator of a 1989 murder and rape. As a former FBI investigator notes, “confessions are useless without corroboration.”

In ‘Flawed Forensics’, Berlinger examines the recent history of the FBI Laboratory. According to the Washington Post, the Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000. Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far, according to the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Project. The cases include those of 32 defendants sentenced to death. Of those, 14 have been executed or died in prison. This now discredited area of criminal forensics adds to the list of ways prosecutors and courts imprison innocent people in the U.S.

‘Prosecutorial Misconduct’ explores the culture of prosecutors whose goal is to gain convictions at any cost. In a two-part series (part 1 / part 2), ProPublica found several state and federal court rulings in New York in which judges explicitly concluded that city prosecutors had committed harmful misconduct. In each instance, these abuses were sufficient to prompt courts to throw out convictions. In one such example, a prosecutor was later found, in one case, to have withheld critical evidence from a defendant’s attorney and, in another case, to have manipulated evidence. It wasn’t until a third case was overturned because the same prosecutor lied to a trial judge about the whereabouts of a key defense witness did they lose their job. In most cases, prosecutors who engaged in misconduct are rarely investigated or reprimanded. Disturbingly, several received promotions and raises soon after courts cited them for abuses. As Marvin Schechter, a defense attorney and chairman of the criminal justice section of the New York State Bar Association summarizes: “Prosecutors engage in misconduct because they know they can get away with it.”

These prosecutors were helped by police officers who cut corners and played by their own rules. Police officers have been found forcing witnesses to lie in order for them to make an arrest, often threatening charges in other crimes if they didn’t follow police instructions to lie. In other cases, police investigators pick and choose the evidence that fits their theory while ignoring defendant’s alibis or other evidence of their innocence. Together, prosecutors and police have left behind a long history of wrongful convictions in America. Men and women who have decades behind bars for crimes they didn’t commit, while actual criminals aren’t held accountable and, worse, are allowed to remain free.

Wider Injustice Issues

The episode ‘Geography of Punishment’ explores the intersection of wider social problems and criminal justice. In just one year, 50,000 people in New York were arrested under practices known as “stop and frisk”. Civil liberty groups have raise serious concerns over racial profiling since the vast majority of people stopped are black and Latino. There are also concerns over privacy rights. The Bronx Defenders Officer, after surveying six months of misdemeanor marijuana possession cases from a single court, found that in a huge number of instances, police were manufacturing crime. Police were conducting “improper stops, illegal searches [and making] false arrests”. To fight this misconduct by New York Police Department (NYPD), defendants would have to go to court. But their cases, which should have taken 60 days, were stretching to two years due to backlogs in the court system. Many become tired of fighting and having their lives disrupted by court dates, so they are forced to plead guilty. Nearly nine out of 10 stopped-and-frisked New Yorkers have been completely innocent, according to the NYPD’s own reports.

The city of New Haven, Connecticut is featured. It embraced “stop and frisk” as well as the idea of drug-free zones. Drug-free zones meant that anyone arrested within certain areas of the city would receive an enhanced penalty: one year for using drug paraphernalia, two years for possession and three for drug sales. Because both policies worked to increase arrests, government official decided to increase the area of these zones. Drug-free school zones increased from 1,000 to 1,500 feet. They then added day care centers and all public housing. The maps below show the result in different communities of Connecticut.

Drug-free zones in Hartford and Canaan: Schools (blue), day care centers (green) and public housing (red)

In New Haven, virtually all (around 95%) of the city is covered by drug-free zones; the one exception is the golf course at Yale University. Because of this enhanced penalty system, many innocent people feel pressured to plead guilty rather than risk such a harsh punishment. The system disproportionately affected minority population and impoverished people, who live in the inner city. In Connecticut, white people account for 70 percent of the population, but just 28 percent of arrests in drug-free zones. As seen above, suburbs, like Canaan, have far fewer drug-free zones than urban centers. They are also whiter and wealthier than urban centers. This is the unequal geography of punishment.

Worst of all, these zones effectively do nothing to prevent drug dealers from selling near schools, as all areas of the city are labeled “drug-free zones”. Reformers in New Haven are seeking to reduce the area of these zones from 1,500 to 200 feet so that they can actual act as a deterrent, rather than unnecessary additional punishment, as they do today. The problem is bigger than just New Haven, though. Over the past few decades, a report by Mic and Fractl shows, “drug-free zones” have taken over entire cities.

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Once arrested, many people face the additional burden of ‘Mandatory Sentencing’. This episode looks at the issue of mandatory minimum sentences related to gun crimes. In one case, an elderly Florida father fired a warning shot in self defense of his daughter’s boyfriend. Even though this was his first criminal charge, he was sent to prison for 20 years – a mandatory minimum sentence for aggravated assault with a firearm. This episode shines a light on the challenge of create fair sentencing. Law enforcement and legislators pushing these types of laws say they are protecting families and preventing future victims. However, this isn’t always the case as shown by the father protecting himself in his own home.

This episode also touches on the problem of plea deals and bargaining, which are becoming more frequent in U.S. criminal cases, rising from 84% of federal cases in 1984 to 94% by 2001. Because of mandatory sentencing, where judges are not given the option of leniency, prosecutors can persuade defendants, including those that are innocent, to plead guilty and receive a sentence less than the mandatory minimum sentence. Plea bargaining incentivizes innocent people to plead guilty and is another reason for the swell of incarcerated Americans.

In the 2012 decision of Miller v. Alabama, the U.S. Supreme Court held that mandatory sentences of life without the possibility of parole are unconstitutional for juvenile offenders. Sentences of life imprisonment with no parole also violate international law and the Convention on the Rights of the Child, which has been ratified by every country in the world except the United States and Somalia. However, there are still more than 2,000 juveniles imprisoned with mandatory life sentences. ‘Juvenile Justice’ follows the case of two young men: one arrested before the Supreme Court ruling, and one arrested after. Both cases involved juvenile males of colour connected to murder cases. Neither actually committed the act but were in the presence or connected to the individuals involved. In one of the cases, the prosecutor said that “he did an adult crime, he’s got to face an adult sentence”.

The notion of treating children like adults in criminal matters runs counter to research by social psychologists. In his book Just Mercy, Bryan Stevenson discusses how young children are developmentally incapable of exercising the judgment, maturity, and knowledge necessary to competently defend themselves against criminal prosecution in adult court. Courts could not give any consideration to the child’s age or life history. Many kids are then subjected to further victimization and abuse in the adult prisons.

Mandatory sentencing, especially against children, do not allow for rehabilitation or a second chance. Instead, they are death sentences which are cruel and inhumane.

Only five percent of prisoners will remain behind bars for life. For the majority who will be released, some will be let out early on parole. Parolees fulfill the remainder of their sentence in the community under parole supervision. ‘Parole: High Risks, High Stakes’ steps inside parole board hearings. The politics of appearing ‘tough on crime’ have meant that parole is granted less often than before – meaning prisoners stay in prisons longer. Parole boards have to evaluate the “threat” a person poses to a community if they were released. With the privatization of prisons and budget cuts, many prisoners are not given the chance to improve themselves. Other will have their past actions brought up again and again, despite any changes they made. For some, parole will be granted. But even this does not guarantee freedom.

After serving 19 years inside prison for burglary, Donald Perry was granted parole. He then spent the next 11 years forging a new life for himself by gaining a college degree and bettering the community by working as an advocate for the homeless. One day, while helping a homeless man, he was arrested due to the other man’s goods. The police claimed that the clothes and electronics were stolen. But the court found Perry not guilty. Unfortunately, the state parole board found that this series of events violated his earlier parole and sent him back to prison. After 30 years of not committing any crimes, Perry would have to fight again to be free. After months of appeals, he eventually was released. However, he was released on parole, again.

Parole is not a free pass. Millions of Americans are living with the fear of being sent back to prison. Even, as in the case of Donald Perry, when they are trying to do the right thing.

How to Solve All of This

The United States was founded on slavery. That economic model of oppression, especially against people of colour, continues to live on today. It lives on through all segments of society, including racial and class inequality within the American criminal justice system. Until the U.S. recognizes this history fully and the modern consequences, it will be difficult to change. Campaign Zero and other movements are proposing comprehensive solutions. But beyond police reforms and and other issues described above, people in the U.S. needs to see each other as equal human beings.

Policy solutions by Campaign Zero

Today, many prisoners and parolees do not have the right to vote. Because this segment of the population is largely young black men, racial justice through political means is out of their reach. The move by President Obama to visit a prison – the first time in American history – was a brave start but needs to be matched with real reform. Giving prisoners and parolees the right to vote would help start the process of ending disenfranchisement.

Outside prisons, another social problem that must be addressed is mass poverty in the U.S. resulting from income inequality. Lack of jobs leads to financial insecurity. The lack of employment opportunities for prisoners after they are released leads to a vicious circle of recidivism. Three-quarters of released prisoners were rearrested within five years of release. Of those prisoners who were rearrested, more than half were arrested by the end of the first year. These statistics are even more shocking in light of the countless innocent men and women who go to prison under wrongful convictions.

It’s time for America to change.

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