If you are poor, you will almost never go to trial—instead you will be forced to accept a plea deal offered by government prosecutors. If you are poor, the word of the police, who are not averse to fabricating or tampering with evidence, manipulating witnesses and planting guns or drugs, will be accepted in a courtroom as if it was the word of God. If you are poor, and especially if you are of color, almost anyone who can verify your innocence will have a police record of some kind and thereby will be invalidated as a witness. If you are poor, you will be railroaded in assembly-line production from a town or city where there are no jobs through the police stations, county jails and courts directly into prison. And if you are poor, because you don’t have money for adequate legal defense, you will serve sentences that are decades longer than those for equivalent crimes anywhere else in the industrialized world.
If you are a poor person of color in America you understand this with a visceral fear. You have no chance. Being poor has become a crime. And this makes mass incarceration the most pressing civil rights issue of our era.
The 10-part online documentary “Making a Murderer,” by writer-directors Moira Demos and Laura Ricciardi, chronicles the endemic corruption of the judicial system. The film focuses on the case of Steven Avery and his nephew, Brendan Dassey, who were given life sentences for murder without any tangible evidence linking them to the crime. As admirable as the documentary was, however, it focused on a case where the main defendant, Avery, had competent defense. He was also white. The blatant corruption of, and probable conspiracy by, the Manitowoc County Sheriff’s Office in Wisconsin and then-Calumet County District Attorney Ken Kratz is nothing compared with what goes on in the well-oiled and deeply cynical system in place in inner-city courts. The accused in poor urban centers are lined up daily like sheep in a chute and shipped to prison with a startling alacrity. The attempts by those who put Avery and Dassey behind bars to vilify them further after the release of the film misses the point: The two men, like most of the rest of the poor behind bars in the United States, did not receive a fair trial. Whether they did or did not murder Teresa Halbach—and the film makes a strong case that they did not—is a moot point.
Once you are charged in America, whether you did the crime or not, you are almost always found guilty. Because of this, as many activists have discovered, the courts already are being used as a fundamental weapon of repression, and this abuse will explode in size should there be widespread unrest and dissent. Our civil liberties have been transformed into privileges—what Matt Taibbi in “The Divide: American Injustice in the Age of the Wealth Gap” calls “conditional rights and conditional citizenship”—that are, especially in poor communities, routinely revoked. Once rights become privileges, none of us are safe.
In any totalitarian society, including an American society ruled by its own species of inverted totalitarianism, the state invests tremendous amounts of energy into making the judicial system appear as if it functions impartially. And the harsher the totalitarian system becomes, the more effort it puts into disclaiming its identity. The Nazis, as did the Soviet Union under Stalin, broke the accused down in grueling and psychologically crippling interrogations—much the same way the hapless and confused Dassey is manipulated and lied to by interrogators in the film—to make them sign false confessions. Totalitarian states need the facade of justice to keep the public passive.
The Guardian newspaper reported: “The Innocence Project has kept detailed records on the 337 cases across the [United States] where prisoners have been exonerated as a result of DNA testing since 1989. The group’s researchers found that false confessions were made in 28 percent of all the DNA-related exonerations, a striking proportion in itself. But when you look only at homicide convictions—by definition the most serious cases—false confessions are the leading cause of miscarriages of justice, accounting for a full 63% of the 113 exonerations.”
“[T]he interrogator-butcher isn’t interested in logic,” Alexander Solzhenitsyn writes in “The Gulag Archipelago,” “he just wants to catch two or three phrases. He knows what he wants. And as for us—we are totally unprepared for anything. From childhood on we are educated and trained—for our own profession; for our civil duties; for military service; to take care of our bodily needs; to behave well; even to appreciate beauty (well, this last not really all that much!). But neither our education, nor our upbringing, nor our experience prepares us in the slightest for the greatest trial of our lives: being arrested for nothing and interrogated about nothing.”
If the illusion of justice is shattered, the credibility and viability of the state are jeopardized. The spectacle of court, its solemnity and stately courthouses, its legal rituals and language, is part of the theater. The press, as was seen in the film, serves as an echo machine for the state, condemning the accused before he or she begins trial. Television shows and movies about crime investigators and the hunt for killers and terrorists feed the fictitious narrative. The reality is that almost no one who is imprisoned in America has gotten a trial. There is rarely an impartial investigation. A staggering 97 percent of all federal cases and 95 percent of all state felony cases are resolved through plea bargaining. Of the 2.2 million people we have incarcerated at the moment—25 percent of the world’s prison population—2 million never had a trial. And significant percentages of them are innocent.
Judge Jed S. Rakoff in an article in The New York Review of Books titled “Why Innocent People Plead Guilty” explains how this secretive plea system works to thwart justice. Close to 40 percent of those eventually exonerated of their crimes originally pleaded guilty, usually in an effort to reduce charges that would have resulted in much longer prison sentences if the cases had gone to trial. The students I teach in prison who have the longest sentences are usually the ones who demanded a trial. Many of them went to trial because they did not commit the crime. But if you go to trial you cannot bargain away any of the charges against you in exchange for a shorter sentence. The public defender—who spends no more than a few minutes reviewing the case and has neither the time nor the inclination to do the work required by a trial—uses the prospect of the harshest sentence possible to frighten the client into taking a plea deal. And, as depicted in “Making a Murderer,” prosecutors and defense attorneys often work as a tag team to force the accused to plead guilty. If all of the accused went to trial, the judicial system, which is designed around plea agreements, would collapse. And this is why trial sentences are horrific. It is why public attorneys routinely urge their clients to accept a plea arrangement. Trials are a flashing red light to the accused: DO NOT DO THIS. It is the inversion of justice.
The wrongly accused and their families, as long as the fiction of justice is maintained, vainly seek redress. They file appeal after appeal. Those convicted devote hundreds of hours of study in the law library in prison. They believe there has been a “mistake.” They think that if they are patient the “mistake” will be rectified. Playing upon such gullibility, authorities allowed prisoners in Stalin’s gulags to write petitions twice a month to officials to proclaim their innocence or decry mistreatment. Those who do not understand the American system, who are not mentally prepared for its cruelty and violence, are largely helpless before authorities intoxicated with the god-like power to destroy lives. These authorities advance themselves or their agendas—Joe Biden when he was in the Senate and Bill Clinton when he was president did this—by being “tough” concerning law and order and national security. Those who administer the legal system wield power largely in secret. They are accountable to no one. Every once in a while—this happened even under the Nazis and Stalin—someone will be exonerated to maintain the fiction that the state is capable of rectifying its “mistakes.” But the longer the system remains in place, the longer the legal process is shrouded from public view, the more the crime by the state accelerates.
The power elites—our corporate rulers and the security and surveillance apparatus—rewrite laws to make their criminal behavior “legal.” It is a two-tiered system. One set of laws for us. Another set of laws for them. Wall Street’s fraud and looting of the U.S. Treasury, the obliteration of our privacy, the ability of the government to assassinate U.S. citizens, the revoking of habeas corpus, the neutralizing of our Fourth Amendment right against unreasonable searches and seizures, the murder of unarmed people in the streets of our cities by militarized police, the use of torture, the criminalizing of dissent, the collapse of our court system, the waging of pre-emptive war are rendered “legal.” Politicians, legislators, lawyers and law enforcement officials, who understand that leniency and justice are damaging to their careers, and whom Karl Marx called the “leeches on the capitalist structure,” have constructed for their corporate masters our system of inverted totalitarianism. They serve this system. They seek to advance within it. They do not blink at the victims destroyed by it. And most of them know it is a sham.
“We have to condemn publicly the very idea that some people have the right to repress others,” Solzhenitsyn warned. “In keeping silent about evil, in burying it so deep within us that no sign of it appears on the surface, we are implanting it, and it will rise up a thousandfold in the future. When we neither punish nor reproach evildoers, we are not simply protecting their trivial old age, we are thereby ripping the foundations of justice from beneath new generations.”