Unfairness: American Judicial System

Unfairness in the American Judicial System The objective of this study is to examine unfairness in the American Judicial System. Toward this end, this study will conduct a review of the literature in this area of inquiry that is academic and professional peer-reviewed literature. There is an existing myth in today's American society that the American Judicial System is 'fair'.

However; the belief of this myth is due to societal conditioning and traditionally held beliefs about the American Judicial System and is not based on the reality of today's American Judicial System and its practices, principles, and processes.

There is presently a high level of unfairness in the American Judicial System evidenced by diverse sentencing guidelines and laws and by the mass incarceration of individuals from vulnerable poverty stricken communities and specifically mass incarceration of those of a minority race and those who have committed drug offenses highlights the present unfairness in the American Judicial System. Individuals committing heinous or violent crimes are on the receiving end of sentences that are less than the sentences handed down to individuals who have been arrested for drug use.

The present unfairness in the American Judicial System further is impacted by the arrogant violation of the civil liberties of American citizens whose rights are protected under the United States Constitution Bill of Rights but violated by the passing of the Patriot Act following the events of September 11, 2001, giving the government and law enforcement overreaching rights into the lives of American citizens and leaving citizens abjectly removed from the protections in the United States Constitution and accompanying Bill of Rights guaranteeing American citizens certain protections to their privacy and to be free from illegal search and seizure.

1. Fair Criminal Justice System Myth The work of Robinson and Williams (2009) published in the Justice Policy Journal examines the belief that the U.S. Criminal Justice System is fair and reports that indeed this is simply a myth.

Merriam-Webster's Dictionary (2009) defines the world 'fair' as being "marked by impartiality and honesty...free from self-interest, prejudice or favoritism." (p.1) Words stated to be related to the word 'fair' by Merriam-Webster's Dictionary include those of: (1) just; (2) equitable; (3) impartial; (4) unbiased; (5) dispassionate; and (6) objective all of which can be derived to mean to be free from viewing either side to a dispute more favorably than the other side.

Robinson and Williams (2009) state that another terms that must be considered in understanding fairness is the world 'desert' referring to the individual receiving what they deserve in terms of being punished or rewarded. (paraphrased) The work of Karmen (2009) on victimology and the work of Miller (2003) on social justice demonstrate according to Robinson and Williams that "it is unfair when those culpable for harmful behaviors are not held accountable for their actions. Many believe that the criminal justice system is fair." (Robinson and Williams, 2009, p.

1) In fact, in a survey of Americans, results demonstrate that 66% of Americans stated a belief that the American Criminal Justice system was fair in nature while an approximately two-third of Americans polled in 2000 and 2002 stated a belief that law enforcement in their community "treated people fairly." However, there are those who are more informed on the issues that belief that the American Criminal Justice system being fair is just a myth perpetrated on the American public.

Robinson and Williams state that a myth is a popularly held conception or a "popular belief or tradition that has grown up around something...one embodying the ideals and institutions of a society or segment of society...an unfounded or false notion." (2009, p. 1) One example of the unfairness of the American Judicial System is highlighted in a recent CNN report on the law enforcement officer who shot and killed a young black man in Ferguson.

The story relates that the grand jury deliberated two days prior to deciding to bring charges against Darren Wilson, the law enforcement officer who shot and killed the young man. The prosecutor in this case only provided a very minimal amount of evidence to the Grand jury and while the prosecutor could have brought charges himself against Wilson, he chose otherwise. The truth in this case will never be known because the law enforcement officer will not be put to trial on the murder of this young man.

According to the work of Kozy (2014) in regards to the death penalty there are disturbing facts that present for example "Where crime occurs can play as big a role in the nature of the crime in determining who will live and who will die. Similar murders might get 40 years in one location and the death penalty in another location. Specifically, in many U.S. States including Tennessee, Ohio and Maryland, there are a large percentages of death penalties arising from only a couple of counties within these states.

In addition, exacerbating the problem of unfairness "Individual prosecutors have broad discretion to decide when to seek the death penalty. Such discretion is one of the hallmarks of our nation's legal system. But the definition of 'death eligible' is so broad that there is little guidance for prosecutors to make that decision.

That leaves room for bias and other factors to seep into the decision making process, despite a prosecutor's best intentions.." (Kozy, 2014, p.1) In addition, it is reported that many of the highest profile murder cases "don't result in a death sentence because the defendants can afford better lawyers who negotiate deals." (Kozy, 2014, p.

1) The defendants who are poorer are more likely to get a death penalty and while those who commit premeditated murder often receive a sentence under 40 years for those who commit robbery and kills someone because something 'went wrong' and even their accomplices, who may have been sitting in a car unknowingly participating often receive death sentences.

In addition, as reported by Kozy (2014) "There have even been instances of accomplices getting executed while the person who actually committed the murder got life." (p.1) While murder is a terrible and heinous crime, the "death penalty is supposed to be for the 'worst of the worst'." (Kozy, 2014, p.

1) Worsening the inequity in the American Judicial System is that while American Citizens are assured to be tried by a jury of their peers when accused by a crime, the fact is that individuals failing to support the death penalty "are excluded from serving on capital juries. The result is that large segments of the population can not participate in the most serious cases." (Kozy, 2014, p. 1) In cases involving murder there has been focused attention on the part of prosecutors to "strike black jurors in murder cases.

Even though the Supreme Court has expressly prohibited racially motivated strikes." (Kozy, 2014, p.1) An excellent example of the unfairness of the American Judicial System is related in the work of Kozy (2011) as follows: "the Supreme Court considered the case of Cory R. Maples, a death row inmate in Alabama whose lawyers had missed a deadline to file an appeal. 'Mr. Maples lost his right to appeal,' Justice Alito said, 'through no fault of his own. But a ruling for Mr.

Maples,' Justice Alito continued, 'could require the court to adopt principles that would affect many, many cases and would substantially change existing law.' He said he was reluctant to impose new burdens on government officials and to allow clients to second-guess their lawyers' decisions in order to provide relief to Mr. Maples. Notice how easy it is for Mr. Alito to justify denying Mr.

Maples justice because of a "reluctance to impose new burdens on government officials." My, my, those poor overburdened governmental officials! Does their need for protection from their being overburdened trump a plaintiff's need for just treatment?." (p.1) It is shocking that the American Judicial system and its officials would rather let a man die due to a missed deadline based on the excuse that government officials should not be overburdened and certainly there is no fairness in that view.

This is arrogance and abuse of the position of an elected official. Moreover, there have been approximately 23 individuals executed by death in the State of Alabama alone that were later proven without doubt to have been innocent of the crimes of which they were accused, sentenced and executed to death on the basis 'guilt'. II.

Law Enforcement Abuse Upon American Citizens There are many upstanding, ethical and committed law enforcement officers in the United States however; law enforcement that violate the civil liberties of American citizens, that commits assault and abuse upon American citizens and that even unjustly kill American citizens, taints the processes of the American Judicial System and ultimately puts the lives of their fellow-officers in danger.

For individuals who were raised in a society that supported law enforcement activities traditionally based on the principles of 'serve and protect' and who witness perpetrated police abuse, it is certain that the confidence they held in law enforcement is lost and that they become scared of law enforcement officers and certainly a scared individual becomes a dangerous individual when they feel that their live or civil liberties is threatened.

The problem that presents in the American Judicial system is that law enforcement officers are not being held to abiding by the very laws that they are sworn to uphold. Criminal activity on the part of law enforcement officers rarely is on the receiving end of criminal prosecution and often merely results in warnings, probationary measures such as being given desk duty for a limited amount of time and for this reason law enforcement criminal activity often goes unchecked and continues to occur. III.

Sentencing Discrepancies Discrepancies in sentencing of offenders is clearly noted in the differences for sentencing drug offenders for possession of powder and crack cocaine. Crack cocaine offenders receive a much stricter sentenced to prison due to mandatory sentencing laws on the possession of crack cocaine. However, this creates in disparities in sentencing largely in regards to racial minorities and most specifically African-American males.

It is reported in the work of Stoner (nd) that it has been argued by some that the "central ingredient of unfairness in the American Judiciary system is inequality of access." (p,115) ) Access problems point to case examples of unfairness "the tendency of the courts to rule in favor of the 'haves'. Much of this is directly attributable to the superior quality of legal counsel available to the 'haves'. On a deeper level, there is considerable thought that courts placate the collective interests of the 'haves' in dispute resolution.

This may partially explain the large number of outstanding legal challenges to antihomeless poliicies that remain pending." (Stoner, p. 178) V. Increases in Racial Disparity in Sentencing of Minorities The work of Dunnaville (2000) reports "A recent report by the Leadership Conference on Civil Rights entitled, "Justice on Trial: Racial Disparities in the American Criminal Justice System," shows that racial disparities may have increased rather than subsided over the past few years.

The report concludes that, while in the past half century the United States has made significant overall progress toward the objective of ensuring equal treatment under the law for all citizens, in the critical area of criminal justice, racial inequality appears to be growing, not receding, and our criminal laws, while facially neutral, are enforced in a manner that is massively and pervasively biased." (Dunnaville, 2000., p.

1) Further revealed in the report of critical findings of "systematic unequal treatment of African-American and Hispanic-Americans and other minorities, as compared to their similarly situated white counterparts within the criminal justice system. Disparate treatment of minorities begins at the very first stage of the criminal justice system: the investigation of suspected criminal activity by law enforcement officials. Innocent minority citizens are detained by the police on the street and in their cars far more than whites." (Dunnaville, 2000, p.

1) When minority citizens are wrongfully targeted for investigatory stops based on their race the result include " inconvenience, humiliation and a loss of privacy that is heightened when the rationale for the police action is the color of a motorist's skin or a pedestrian's accent. Furthermore, during some investigations and interrogations, the police employ tactics that shock the conscience. The disparate implementation of justice continues through the trial, jury deliberation and sentencing." (Dunnaville, 2000, p. 1) Dunnaville states that the report specifically relates: "Unequal treatment of minorities characterizes every stage of the process.

Black and Hispanic-Americans, and other minority groups as well, are victimized by disproportionate targeting and unfair treatment by police and other frontline law enforcement officials; by racially skewed charging and plea bargaining decisions of prosecutors; by discriminatory sentencing practices; and by failure of judges, elected officials and other criminal justice policy makers to redress the inequities that become more glaring every day." (Dunnaille, 2000, p. 3) 1) VI.

Community Decay As noted by Dunnaville (2000) the mass incarceration of individuals is "leading to the decay of communities that will have given up an entire generation of young men to prison. Furthermore, it is leading to a widely-held belief among black and Hispanic-Americans that the criminal justice system is deserving neither of trust nor support.

Unfortunately, many politicians and policy makers have the perception that lawlessness is a "colored" problem, and that the disproportionate treatment of blacks and Hispanics within the criminal justice system is a rational response to a statistical imperative. Disparate treatment within the criminal justice system is not rational." (Dunnaville, 2000, p.

3) Dunnaville (2000) reports that it has been well established in the research that "the majority of crimes are not committed by minorities, and most minorities are not criminals -- indeed, less than 10% of all black Americans are even arrested in a given year.

Yet the unequal targeting and treatment of minorities at every stage of the criminal justice process -- from arrest to sentencing -- reinforces the perception that drives the inequality in the first place, with the unfairness at every successive stage of the process compounding the effects of earlier injustices. The result is a vicious cycle that has evolved into a self-fulfilling prophecy.

More minority arrests and convictions perpetuate the belief that minorities commit more crimes, which in turn leads to racial profiling and more minority arrests....improvements in family and juvenile courts is essential. Racially disparate treatment of juveniles within the justice system necessitates that legislators and members of the legal profession make drastic improvements of the juvenile justice system and eliminate racial inequities on a priority basis." (Dunnaville, 2000, p. 4) The Brennan Center for Justice reports "Fair and impartial courts are the guarantor of equal justice in American constitutional democracy.

The very legitimacy of the courts depends on the public belief that judges will treat every party without bias or favor, and that any party, regardless of wealth or connections, can have a fair day in court. But public confidence in the courts is at a crisis point. Americans are increasingly concerned about the influence of politics and money on the courts. Three in every four Americans believe campaign cash affects courtroom decisions -- and, alarmingly, nearly half of state court judges themselves believe the same.

Ninety percent of Americans think judges should not hear cases involving campaign supporters, but outdated judicial conduct rules allow this to occur routinely. Other critical issues include unfair judicial selection systems, including those that result in lack of judicial diversity and election redistricting that decreases minority voters' input.

Finally, inadequate funding of the courts is one of the biggest crises to access to justice that Americans face." (2014, p.1) According to the work of Malase (2014 ), justice when "taken in its broader sense...is action in accordance with the requirements of some law. Some maintain that justice stems from God's will or command, while others believe that justice is inherent in nature itself. Still others believe that justice consists of rules common to all humanity that emerge out of some sort of consensus.

This sort of justice is often thought of as something higher than a society's legal system. It is in those cases where an action seems to violate some universal rule of conduct that we are likely to call it "unjust." In its narrower sense, justice is fairness. It is action that pays due regard to the proper interests, property, and safety of one's fellows.." (p.

1) The principles of justice ensure that 'fair play' occurs or that individuals are on the receiving end of their 'fair share' of both the burdens and benefits. Malase (2014 ) states that the principles of fairness in the American Judicial System are such that "appeal to the notion of desert, the idea that fair treatment is a matter of giving people what they deserve. In general, people deserve to be rewarded for their effort and productivity, punished for their transgressions, treated as equal persons, and have their basic needs met.

However, because these principles may come into conflict, it is often difficult to achieve all of these goals simultaneously." (p. 1) Since justice is an ideal requiring that unequal individuals are treated unequal in today's American Judicial system crates inherent tension "with the principle of equality" (Maease, 2014, p. 1) 1) Furthermore, principles of fairness and justice are centric to "procedural, retributive and restorative justice. Such principles are supposed to ensure procedures that generate unbiased, consistent, and reliable decisions.

Here the focus is on carrying out set rules in a fair manner so that a just outcome might be reached. Fair procedures are central to the legitimacy of decisions reached and individuals' acceptance of those decisions. To ensure fair procedures, both in the context of legal proceedings, as.