"Land of the free" no more
"Better that ten guilty persons escape than that one innocent suffer." - William Blackstone, C18th English Jurist
Today, the United States is anything but the 'land of the free'. While it has five per cent of the world's population, 25 percent of the world's incarcerated people are in its jails, and it has 50 percent of the world's lawyers who swallow up nearly 10 percent of the country's GDP. Thus, the U.S. incarcerates five times more people (an incredible one in 32 adults!) than the world average, most without trial, a high proportion of whom are innocent and victims of the serious decline in the quest for truth and justice. Sadly, the law in the US has become, first and foremost, a lucrative industry, rather than any guarantee of justice. According to Professor Niall Ferguson of Harvard University, and a fellow of Jesus College, Oxford, "the problem in the United States is such that one can say they no longer have the rule of law there.". The US must, therefore, put its own house in order if it is to convincingly present itself as an exemplar to the world.
US erosion of the legal principles
Certainly, the integrity and fairness of the US justice system can no longer be taken for granted, as the erosion of the legal principles – such as habeas corpus and the prohibition against self-incrimination – is destroying the presumption of innocence in the US. Almost no one accused of a crime ever faces a jury. Inconsistent policing, rampant plea bargaining, overcrowded courtrooms, and ever more draconian sentencing have produced a huge prison population.
This is very well documented, see: “The Tyranny of Good Intentions” by Paul Craig Roberts (a former assistant secretary of the U.S. Treasury) and Lawrence M. Stratton. “Law Street: America's Dysfunctional and Sometimes Corrupt Legal System” by Wim J. M. Touw, “The Collapse of American Criminal Justice” by William J. Stuntz and “Three Felonies a Day: How the Feds Target the Innocent” by Harvey Silverglate.
De facto becomes de jure
In a decision in March, 2012, the US Supreme Court made de jure, that which has long been de facto in the American legal system, namely that court trials play a very small part in the judicial process and, thus, that defendants have a constitutional right to competent legal representation with respect to plea bargains just as they do for trials.
Supreme Court Justice Anthony Kennedy noted that 95 percent of all convictions in the US are the result of plea bargains and not trials: “Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas.” He, therefore, admitted that the criminal justice system is in reality a system of pleas.
Legal system failure
Thus, on average, only five in every one hundred cases is decided by trial. This should come as a shocking admission of legal system failure due, it seems, to stretched resources; but, instead, is merely seen as a reality which the American constitution must embrace. Kennedy went on to say that the pre-trial horse trading between prosecution and defence lawyers determines who goes to jail and for how long. This modus operandi is not some adjunct to the criminal justice system; but it is the criminal justice system.
The U.S. Bill of Rights guarantees the accused basic safeguards, including a fair and expeditious jury trial. However, in 1978 the Supreme Court ruled that threatening a defendant with life imprisonment for a minor crime in order to induce him to forfeit a jury trial, did not violate his Sixth Amendment right to trial. Defendants who exercise their constitutionally guaranteed right to a trial generally, as a penalty for exercising their rights, receive more than three times the sentence they would have earned had they accepted a plea bargain, In the US, it seems, an admission of guilt under such duress is sufficient proof of guilt.
US rated low for access to justice and the rule of law
In its 2010 Rule of Law Index, the World Justice Project shows that out of 11 developed countries that were studied, the US ranked lowest in providing access to civil justice to its citizens. Other factors looked at included absence of corruption, limited government power and fundamental rights and, in these, the U.S. ranked below seventh in all categories except one.
Further, the Executive Opinion Survey - on which the World Economic Forum’s annual Global Competitiveness Index is partly based - which assesses the rule of law using 15 measures - ranging from the protection of private property rights to the policing of corruption and the control of organised crime - found the United States to be markedly worse than Hong Kong on all of them. Additionally, the Heritage Foundation’s Freedom Index ranks the US 21st in the world in terms of freedom from corruption; far below both Hong Kong and Singapore. And the World Bank’s Indicators on World Governance, suggest that, since 1996, the United States has suffered a decline in the quality of its governance in three different areas: government effectiveness, regulatory quality and the control of corruption.
"Gold standard of American justice"
In the March case, one dissenting Supreme Court judge, Justice Antonin Scalia, called the rulings of the majority “absurd” and said they had twisted the constitutional right that defendants receive a fair trial into one in which they have a chance “to escape a fair trial and get less punishment than they deserve.” He claimed, “the gold standard of American justice — a full-dress jury trial before 12 men and women tried and true,” remedied any failure on the part of lawyers to properly advise. He went on, “Today, however, the Supreme Court of the United States elevates plea bargaining from a necessary evil to a constitutional entitlement.”
The court considered two cases in which the lawyers had failed their clients. In the first the defendant's lawyer had not informed his client of a favourable plea bargain offer by the prosecutors and, in the second, the lawyer had wrongly advised his client on the law relating to manslaughter, which caused his client to reject plea bargains on the basis that he could not be convicted of attempted murder. Both clients received much harsher sentences than the plea bargains offered.
It was held that in both cases counsel had not properly advised their clients in accordance with their constitutional right. In fact, if lawyers are failing their clients at such a basic level one must wonder the extent of injustice caused by more subtle and, thus, far less obvious failures.
Horse-trading ousts court trials
Thus, in a country which is the world's richest and has the third highest income per capita, the horse-trading of plea bargaining has ousted and supplanted court trials on the basis that the expense of the latter cannot be justified. Ironically, this is the system the US vaunts as exemplar to the world.
Is it any wonder then that for crimes where capital punishment is meted out - thus requiring more robust legal processes - so many convictions are overturned before execution, even though innocents are still killed by the state. Likewise, no doubt, if defendants were properly tried in all instances, many who are currently being convicted would be found to be innocent.
See the American Civil Liberties Union's (ACLU) report, 'A Living Death', which chronicles the thousands of lives ruined and families destroyed by the modern phenomenon in the US of sentencing people to die behind bars for non-violent offences. Article in the Guardian.