DOJ’s Institutional Bias Against Reform

Professor Mark Osler, writing for the Marshall Project, shows how the prosecutor-run Department of Justice often works to stymie criminal justice reform. He illustrates his point with this appealing hypothetical:

Imagine an incoming president of the United States announcing that he or she would take advice on criminal justice matters exclusively from a Federal Defender’s office. Moreover, the new chief executive intends to put the defenders in charge of federal prisons, forensic science, and the clemency process. After all, the president might argue, the defenders understand federal criminal law from the ground up, have a rich understanding of the social conditions that lead to criminal behavior, and are the federal attorneys most responsible for ensuring individual Constitutional protections.

People would be outraged. Critics would complain that the defenders represent only one part of the justice system, and are inherently biased because their work in the courts is always on behalf of the accused.

Yet, somehow, the mirror image of that situation is our reality and goes largely unchallenged.

Judge Rakoff on Truth v. Justice in Criminal Law

Judge Jed Rakoff, talking with Judge Posner and Slate’s Joel Cohen, describes the Fifth Amendment right to remain silent as one example of the tension between truth and justice in American criminal law:

[O]ur Constitution allows a defendant to remain silent, even though that may in some sense impede the search for the truth.

The historic reason for this restriction is that in its absence, the government is easily persuaded to use torture to extract confessions—which is what happened in the English Star Chamber that gave rise to the Fifth Amendment privilege against self-incrimination.  But is also commonplace today in legal systems like China’s, that don’t have such a privilege, and, at least for a time, was utilized in places like America’s Guantanamo Bay prison that were supposedly outside the reach of the Constitution.

While the Fifth Amendment is actually designed in part to advance the truth by guarding against coerced false confessions, it also serves the independent purpose of putting a check on government practices that most people consider repugnant regardless of their results. In short, while a legal system built on untruths is inherently unjust, truth is not the only requirement for achieving justice.

Underwear Searches Violate the Fourth Amendment

Philly.com reports on a disturbing police practice in Philadelphia:

Stories of having pants undone and lowered and underwear being rifled through come from black men from various parts of the city. Their stories are strikingly similar. Sometimes drugs are found; sometimes, not.

Such searches, conducted in public places, are strictly prohibited by police department policy and state law. The department keeps no statistics on how often these searches occur, a department spokesman said. Commissioner Richard Ross says he has no knowledge of the practice.

But five men who have had their underwear searched on public streets say the experiences left them scarred.

Call it Stop-and-Fondle.

The article goes on to describe the racist and humiliating nature of these searches, but does not dig into their legality.   Underwear searches should be prohibited by the Fourth Amendment, particularly because they are so personal.

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