POST WRITTEN BY: John Humbach, Professor of Law at Pace Law School.
Much has been written about the extraordinary rates of incarceration as a pressing criminal justice problem. Mass incarceration is, however, only part of the challenge posed by the American criminal justice system. Already, an estimated 25% of U.S. adults have a criminal record and, with a million new felony convictions per year—one every 30 seconds—America’s ex-offender population is growing exponentially (see chart to the right). Our country is well on its way to becoming a nation of ex-cons.
The effects of being a “criminal” do not, moreover, end with release from prison. Newly released inmates are immediately met by a growing assortment of law-prescribed “collateral consequences” that now number in the tens of thousands. In their cumulative impact, these legal disabilities greatly reduce the ability of ex-offenders to find housing, make a living, get an education, obtain bank loans, support their children or, generally, to enjoy the usual rights and amenities of citizenship that are essential for a reasonable quality of life. As a result, our nation’s criminal-justice policy is literally re-making America into a legally divided multi-stratum society with an entrenched system of law-sanctioned discrimination against a large and growing underclass with a legally-prescribed inferior civic status.
Already, the ex-offender class is the nation’s largest legally discriminated-against minority group, and it is growing. The adverse social implications of this trend remain unclear and the critical demographic tipping point is still uncertain. But whatever the details, this is surely not good path for the nation to be on.
- John Humbach, Is America Becoming a Nation of Ex-Cons?, 12 Ohio St. J. Crim. L. 605 (2015) (SSRN) (Pace Digital Commons).
John Oliver did it again! With more than 2.8 million views, John Oliver in his weekly “Last Week Tonight” analyzes the public defender system in the United States as only he can do it. He begins by quoting the 1963 decision of Gideon v. Wainwright, in which the Court stated that “… any person … who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” Does this system works as intended?
He shares quite a few shocking facts and statistics:
- “… anywhere from 60-90 percent of criminal defendants need publicly-funded attorneys, depending on the jurisdiction.” (Brennan Center for Justice, Apr. 9, 2013).
- “… 40% of all county-based public defender offices had no investigators on staff.” (Bureau of Justice Statistics).
- “… about 95 percent of criminal cases never make it to trial.”
He explains that
[t]he Miranda warning includes the right to a public defender. It doesn’t include the fact that public defenders are highly overworked and grossly underpaid.
- Gideon v. Wainwright, 372 U.S. 335 (1963).
- William Lawrence, The Public Defender Crisis in America: Gideon, the War on Drugs and the Fight for Equality, 5 U. Miami Race & Soc. Just. L. Rev. 167 (2015).
- Indigent Defense Systems (Bureau of Justice Statistics) offers statistical data on the right to counsel and methods for providing indigent criminal defense.
- John Oliver, Public Defenders, Last Week Tonight (Sept. 13, 2015).
Pace Professor Bennett Gershman makes a case for the establishing a prosecutorial misconduct commission, as New York considers doing just that. Read the article in The Daily Beast titled How to Hold Bad Prosecutors Accountable: The Case for a Commission on Prosecutorial Conduct.
The adversarial system may be the best way for a society to adjudicate criminal charges to a result that will warrant public trust. But sometimes it feels like the US culture of adversarialness is just that – a pervasive method of dealing with everything that comes our way, and not simply in the courtroom. Our current political scene is certainly a reflection of that, as is the political gridlock.
A recent op-ed in the New York Times, titled President Obama’s Department of Injustice by Alec Karakatsanis, raises the question of whether our historical reliance on adversarialness – its intentional use for a good societal purpose – may have become reflexive, or unthinking, or may have simply gone too far.
On a similar topic, another example of cultural over-reaction, take a moment to view the July 26th episode of Last Week Tonight with John Oliver, in which Mr. Oliver addresses the phenomenon of mandatory minimum sentencing and President Obama’s recent grants (and denials) of clemency to some low level offenders serving mandatory minimums. In doing so, he “explains why we treat some turkeys better than most low-level offenders.”
POST WRITTEN BY: Danielle Petretta (’17), J.D. Pace Law School & Jake B. Sher (’16), J.D. Pace Law School
“Lost causes are the only ones worth fighting for.”
– Clarence Darrow
Over the weekend of April 24th 2015, Pace Law School’s Criminal Justice Society produced a one-man show starring Professor Bennett L. Gershman, one of the law school’s original faculty members, as the renowned American lawyer Clarence Darrow. Darrow, one of the most famous trial lawyers in US history, was a vital member of the American Civil Liberties Union.
Professor Gershman stunned viewers with his impressive ability to transform a script adapted from Darrow’s memoirs and speeches into a powerfully effective and moving story. Gershman embodied Clarence Darrow’s wit and passion throughout the performance as the audience journeyed through Clarence Darrow’s career history. Throughout Gershman’s rendition, he captivated the audience. Beginning in a chair in Darrow’s office, the story commenced with his first career milestone, defending the Pullman Railway Company strikers led by Eugene Debs. The audience followed Darrow through one of his more difficult trials in which he defended two union officials accused of murder in the dynamiting of the Los Angeles Times Building; that case nearly ruined Darrow’s career and reputation. Finally, the audience roared with laughter as Gershman depicted Darrow’s cross-examination of William Jennings Bryan in The Scopes Trial, a pivotal moment in which Darrow defended a schoolteacher against a Tennessee Butler Act banning state funded schools to teach the theory of Evolution.
Viewers unfamiliar with Darrow’s career left having acquired insight into Clarence Darrow’s personal and professional career, and an inspiring look at the character that remains among the most famous attorneys in American history.
Questions of right and wrong are not determined by strict rules of logic … as long as crime is regarded as moral delinquency and punishment savors of vengeance, every possible safeguard and protection must be thrown around the accused.
– Clarence Darrow, Crime: Its Cause and Treatment 283 (1922).