Thank you everybody. We are about to get started.
First I want to welcome you to our presentation: Law & Disorder: Criminal Justice on TV and
in Real Life. We are doing this presentation and this web
cast to commemorate Constitution Day which actually fell yesterday, September 17th. Constitution
Day is a federal holiday that recognizes and honors the day that the United States Constitutional
Convention signed the Constitution in 1787. Our program today is going to be taking a
look at the realities of our criminal justice system and the ways in which our popular understanding
of it is shaped by television, the shows that are ubiquitous almost every night in primetime
that show us how the police operate, how the criminal justice system, in general, operates.
I want to start off by thanking the ACLU for hosting us very generously. I also want to
thank ? Films for preparing the short film that we are going to see in a few moments.
I want to thank Susan Chavez?, public charter school for public policy for joining us here
live as our live audience. I also want to thank everyone who is watching on our web
cast. Just a few administrative things. I’m going
to give a brief introduction, then we are going to watch the film, then we are going
to hear from our panelists, and I really want to encourage both the students here and the
students and other people who are watching online to join in with the discussion and
ask questions. So, our panelists are going to give a brief sort of comments on the five
myths that we are going to see in the film. But we really encourage you. I think that
this is going to be a lot more interesting if you were engaged. So for people in our
audience, raise your hand if you have a question, and for those who are watching online, we’d
like you to tweet your questions to #law disorder. So, just tweet your questions and I’ll be
monitoring that # so that I can ask our panelists to weigh in on the questions that we receive
online. Our panelists today, directly to my left,
we have Norm Reamer, he’s the executive director of the national association of criminal defense
lawyers for NACDL. NACDL comprises of the criminal defense attorneys who are on the
front lines of representing defendants and working to assure that the criminally accused
get a chance at the fair trial that they are constitutionally entitled to. Here in DC and
at the state and local level, nacdl encourages a rational humane criminal justice policy
for america, One that promotes fairness for all, due process for even the least among
us who may be accused of wrongdoing , compassion for witnesses and victims of crime and just
punishment for the guilty. Next to Norman, is Venita Gupta who is the deputy legal director
of the American Civil Liberty’s Union or the ACLU. The ACLU is our nation’s guardian of
Liberty working daily in courts, legislators, legaslatures and communities to defend and
preserve the individual rights and liberties that the constituion and laws of the United
States guarantee everyone in this country. Venita is also director of the ACLU’s center
for justice which useslitigation, legislative advocacy and public education to address the
systemic problems in the US criminal justice system including police abuse of power, the
treatment of prisoners, and the death penalty. Venita oversees the ACLU’s national campaign
to end over criminalization, working with ACLU affiliates all over the country to advance
a more rational, affective, and fair criminal justice system. Next to Venita is Virginia
Sloan, president of the Constitution Project. Created out of the belief that we must cast
aside the labels that divide us in order to keep our democracy strong. The constitution
project brings together policy experts and legal practitioners across the political spectrum
to find agreement to solutions to the most difficult constitutional challenges of our
time. TCP seeks to reform the nation’s broken criminal justice system through scholarship,
advocacy, policy reform and public education initiatives. My name is Christopher Derosure
and I’m the government affairs advocate on the Constitution Project. So today were looking
at how the myths perpetrated by popular television result in misconceptions about our criminal
justice system and how that contributes to the constitutional infirmities that exist
in our system. Just to give you an idea, in the 2011, 2012 television season, nine out
of the 50 rated shows had something to do with the criminal justice system. Shows like
CSI, Law and Order, Hawaii 50, NCIS, that’s nearly 20% of all of the most popular shows.
Another seven helped round out the top 100 and that’s not counting the scores of shows
on basic cable and premium cable that purport to deal with the way that our criminal justice
system works. In a recent media survey , it was concluded
that seven characters in primetime shows are murdered each night. If you look at the television
population, that’s 2% of the television population each night being murdered. Does this reflect
what society is? Does this reflect what happens in real life? If you get your information
from television which I think a lot of us do, unless you’ve been unfortunate enough
to have to deal with the criminal justice system yourself or you work in the criminal
justice system, television is where you get your idea of how our police and court systems
work and so it stands to reason that you would think that this might be how it really is
. Up to 50% of all crimes depicted on TV are homicides, even though homicides account for
a much lower percentage of crimes. Another thing is you look at the victims and perpetrators
of crimes on these popular televistion shows. By and large, very often, white woman are
the victims of crimes on television shows even though they are the least likely demographic
to be victims of homicide. In fact, from 1980 to 2008, black people were six times more
likely to be the victims of homicide and men were three times more likely. Also on TV a
murder is perpetrated, investigated, solved, the accused is tried, convicted all within
what seems like a matter of days or weeks, but the reality is justice is not that swift.
A recent study in New York City revealed that the average wait for a murder or attempted
murder trial is more than two years. About a third of the people who are facing these
charges are out on bail which means that a large majority of the defendants sit in jail
for two years waiting to be tried. Not all of those people end up being convicted. There
are people who are not guilty of these crimes who sit in jail for up to two eyars. One of
the other things that you see in Television is the use of DNA evidence, but DNA evidence
is used in maybe five to ten percent of cases. You see the plucky forensics investigator
who finds that little piece of DNA that conclusively leads to the identity of the perpetrator and
a swift conviction but in fact eye witness testimony which it’s reliability has been
questioned if far more likely to be the centerpiece of any prosecution. A couple of other things
that we may want to consider is how the defense attorneys are portrayed in these shows. Often
times they are either portrayed as bad guys who are looking to trick the system into getting
someone who is guilty off scott free or they are portrayed as incompetent young public
defenders who are completely incapable of being able to advocate and represent their
attorneys. So today we’d like to think about how those types of representations really
affect what we expect out of our criminal justice system and when we expect these things
out of our criminal justice system are we holding it accountable for what its suppose
to be and what it’s doing wrong. So with that I’d like to show you the film and then we
will turn it over to our panelists. In the United States of America, there are
two criminal justice systems. One that exists on television, and the other that prosecutes
and incarcerates real people. LAW AND DISORDER Marc Mauer
Executive Director, The Sentencing Project If you look at the tv shows, some of the cop
shows are very good and are very compelling drama, but basically they are about murder,
rape, and robbery. Right now murder, rape, and robbery are not
the most common crimes. We’re here on a murder investigation. Sir,
you’re under arrest for the murder of Jody Watson. You’re under arrest for sexual assault.
You’re under arrest for murder. Well, based on the entry wound, they were both murdered,
but here’s where it gets fun. On Television
The Police Focus on violent Crime Martin Horn
Executive Director Permanent Commission on Sentencing, NY
Fact is that a violent crime is actually the smallest percentage of all crime.
Violent crime is 4% of all arrests. Bonnie Hoffman
Deputy Public Defender, Loudoun County, VA Most offenders are arrested for property crimes
and for drug and drug related offenses. Susan herman
President, American Civil Liberties Union And I think the average person watching television
would tend to conclude that violent crime is becoming more and more of a problem and
I think the consequence of that is that many states, although they are fairly bankrupt,
are spending a lot more on prisons in order to be safe against violent crime.
Mr. Garber, I bend over backward to give your clients second, third, and fourth chances.
On television. The Punishment FIt’s the Crime.
Our sentencing system is very much skewed because of mandatory minimum. Mandatory minimum
means that you are taking the expression away from the judge.
Jim Gray Former Judge, Orange County, CA
There have been time that I’ve known of judges, federal, state that were literally in tears
because they know that the sentencing is inappropriate so they would apologize to people but as they
are sending them to prison for ten years they know full well that there shouldn’t even be
a prison sentence or maybe one or two years. But, they have to follow the law.
Murder two. 15 to Life. A term of 15 years. 25 years to life.
People don’t understand that the length of our sentences is tremendously disproportionate.
The average sentence that Americans perceive for being convicted of a crime is twice as
long as people in England, three times as long as people in Canada, four times as long
as the Dutch, and five to ten times as long as the French.
On Television The Accused Have an Adequate Defense
This can be very real for you. Eh, what are you doing detective? What are you doing talking
to my client without my being present? You sneaky Pete. Detective, interviews over. I
have no problem answering questions. Don’t say another word.
The idea that most people have of rich and famous attorneys with unlimited funds and
unlimited resources, again, is very far from the truth.
Ginny Sloan President, The Constitution Project.
So the system is hugely a balance in favor of people with money.
Most folks who are charged with criminal offences don’t have those types of resources. And,
often times if they are represented by court appointed counsel, counsel doesn’t have those
types of resources available to use them. The recommended maximum caseload for a public
defender is whopping 200 misdemeanors and 75 felonies per year.
There’s no question but that the public defense bar throughout the country is under funded.
So, the ability to show the time and resources that are needed ,especially in the field of
indigent defense, is very difficult. It is a form of injustice.
Have you reached a verdict? The jury finds the defendant, Kenneth Jackson, guilty as
charged. We find the defendant guilty. Guilty. Not
Guilty. Guilty. Not Guilty. On Television
The Accused Get a Trial What’s good TV? Good TV is seeing a trial.
About five percent or less of cases actually go to trial.
Felony cases Only 1 in 40 go to trial. Prosecutors in this country have a tremendous
amount of leverage over defendants. Many defendants are told that if they choose
to not accept a plea bargain they may face additional charges, or more serious charges.
Neither the defense nor the prosecutor advises the defendant about the potential consequences.
Christine Cole Executive Director, Program in Criminal Justice,
Harvard University The felony conviction affects your ability
to seek gainful employment ,or you might lose your right to vote.
You have to show the public you go after the rich. Your client killed in cold blood. I
don’t care if he’s homeless or resides on Grand Central Station. I want to believe in
justice. On Television
Justice is Blind The reality is that justice in not blind.
Black people are far more likely or tens times more likely to be arrested, more likely to
be prosecuted, more likely to be convicted, and more likely to be sentenced than white
people. Matthew Fogg
Former U.S. Marshall I began to see who we were targeting, who
we were going after. I would notice that most of the time, it always appeared to be urban
area. John Amabile
Former Prosecutor The abuse of drugs cuts across all ethnic
and economic lines; but, the people that get sent to prison for them are grossly disproportionately
lower income people to people of color. If we were locking up everybody (white and
black) for the same thing, they would have said, “Let’s stop this thing. You’re not putting
my son in jail”. The injustice is to society at large. Change the channel. That’s the true tragedy of it. Then change the justice system. Produced in Partnership with the NACDL, the
ACLU, and the Constitution Project. Beyond Bars…A Project of Brave New Foundation Alright, well, now that we’ve taken a look
at five of what I think are many of the misconceptions of how our criminal justice system operates,
I want to turn to our panelists; and, first I’d like to turn to Norm to lead us on the
discussion of the misconception that the justice system largely focuses on violent crime. Thanks a lot, Chris, and thank you all for
joining us today both here in the room and those of you who are watching on the internet.
Any day that starts with people showing an interest in the criminal justice system, as
far as I’m concerned, is a really good day. I also want to thank Venita and Ginny for
inviting me to join them on this panel. Before I turn to this first myth, which is that most
crimes in this country are violent, I just want to get a sense of how many of you have
thought of a career in the criminal justice system? You decide. I don’t care if it’s law
enforcement, defense, any part of the system. That’s good. That’s about eight, nine hands,
and I hope by the end of our discussion there will be some additional hands going up. Because,
we are here to talk about the criminal justice system and to try to talk to you about myth
versus reality; but, underneath it all we are here to celebrate the constitution. The
criminal justice system and the constitution are really your criminal justice system and
your constitution. And, you’re going to decide what it means for the next generation and
the generation after that. And, I’m sure that most of us here today realizes that the constitution,
as we understand it in 2012 doesn’t mean the same thing as the constitution when it was
written in 1789. And that evolution is a result of what each generation of Americans do to
bring it to the next level. So, that’s the context in which we want to have this discussion.
When we talk about most crimes being violent, as the film showed and as Chris said, only
a tiny percentage of the real crime in this country of violent crime is homicide. And,
what we really want to get at is the truth of how much crime in this country is man-made
crime. What do I mean by that? Violent crime and fundamental crimes like stealing and attacking
people have their origins in some moral code. Whatever your religion happens to be or even
if you have no religion that you practice, there are certain fundamental moral concepts
that give rise to those crimes. But that’s not what most crime in this country is, so
let me just ask you this question. I really want to get you guys involved. What do you
think the most common crime in the United States of America is? Robbery! Robbery? No!
Next! Drug Offenses! Drug Offenses? No! but you’re getting closer. How about over here?
Drug trafficking? Similar! Close, but, not there! Taxes? OK. No, it’s not taxes. My co-panelists
will jump in; but, the last time that I did any checking on this heredity reports that
the single most common crime in the United States is driving without a license. And,
very close to that is smoking marijuana. The fact of the matter is that we as a society
have decided to make certain things crimes. So, now, let me ask you this. Who decides
what a crime is? The society itself. That’s right, and who is it that actually makes that
decision in society? The people. The people, and who are the people’s representatives?
Their politicians. Their legislatures, their governors, their mayors, their city counsels.,
their city councilman and their president. And, how do we make those decisions? We’ve
decided that it’s a crime to smoke marijuana in most places. That’s somewhat changing now.
We’ve decided that. But, why haven’t we decided that it’s a crime to drink alcohol?
It’s an economic boom. It’s an economic boom. Well, maybe it would be an economic boom if
we legalize and regulate marijuana. And let’s not forget, right? You guys probably know
that there was a time in this country when it was illegal to use, possess, manufacture
alcohol. So, let me ask you this next question to put , again, this myth in context. How
much crime do we actually have? What would you say, I want to see people taking a guess,
how many people do you think get arrested in the United States every year?
Um, 50000? 50000 a year? OK! Uh, probably 150 to 200000 a year. One million. One million?
We’re getting there. We’re getting warmer. What if I were to say to you and I’ll ask
my panelists if I bet this number wrong…..somewhere between 50 and 65 million arrests take place
every year. Does that sound right? Arrests. That sounds right. How many people do we have
in prison in the United States? 2%. No, we have 300 million people in this country. 150
million. No, again, we have 300 million people in this country. 2 million people. Yes, he
said it. 2.3 million people are in US prisons. Now, one more. Where does the United States
rank in terms of our prison population in the world? No. 1. No. 1. USA! No. 1. Before
I turn it over to our fellow panelists on this topic, I’m going to ask you if some of
these things are actually crimes. Do you know that in NYC it is a crime to take up two seats
on a subway? Yes! Do you know that in some communities in this country, I know of some
in particular in Florida, it is a crime to feed the homeless? What? That’s correct. So,
what’s going on here? What’s going on here is we’ve made a decision as a society that
we’re going to use the criminal law to control social behavior. And, this is what people
don’t really understand. Our system, many of the other myths, are a reflection of this
as a result of the fact that our system is clogged with this. Some poli, I’m from New
York so I have a lot of New York stories. Ok? My mayor, right now, has decided that
we are no longer going to be able to sell big bottles of soda. Now, I don’t fault him.
I know what he’s trying to get at. There are a lot of people that are overweight and that’s
a health problem;, but if you look at what kills people, maybe instead of looking at
marijuana, we should be looking at sugar. Maybe we have to make it a crime to sell sugar.
This could happen. This is the problem allowing the criminal law to get away from the moral
basis of banning things which are inherently wrong and using it as a means of control.
Venita? What do you think? What can we do to solve this? Well, sometimes the frame that
we use in the criminal justice system is wrong. Instead of asking, so who was harmed, right?
Because when you are talking about drug crimes, drug possession, people often think that there’s
always kind of a bloody victim involved in a crime, but if you change the kinds of questions
or if law makers change the questions that they were asking before enacting on a whole
host of criminal laws and instead of asking who was harmed? What was the harm? And, how
do we best address the harm to prevent that harm from happening in the future? That’s
a very different set of questions that the lawmakers are asking themselves or have been
for the last 40 years about who are we mad at and how long can we put that person in
prison and never let that person see the day of light? And I think that that has been part
of the problem that’s resulted in our system of mass incarceration today. That’s why we
are No. 1 in the world with incarceration. And, that is not something that we should
be proud of. Tha’ts not something that the constitution, that we should be in viewing
the constitution with, to the extent that we believe the constitution is a document
that should be, whose interpretation should be evolving into a progressive line and making
us all better as a society. Our system of mass incarceration has really caused us to
put some of that into question. To question what are the values of the constitution and
how have they been hurt by the system of mass incarceration over the past 40 years? Some
of you probably see this even in school as playing itself out, as 20 years ago a disruption
in school may have resulted in going to the principles office whereas now, it results
in kids as young as six years old in Florida and other parts of the country getting arrested
for talking out in school, or having a behavioral problem. And, that is kind of part of what
Norman has been talking about. Norman has been kind of talking about the misimpression
that people really thinking that our country is so incredibly violent, giving that we stand
out in terms in the world. Our country, with those kind of statistics, one would think,
they must be so violent, something inherently violent about the Americans, but we know that
isn’t true. What we were chosen to do is criminalize a whole bunch of things that really frankly
could be better addressed as public health issues when someone has an addiction to drugs,
there are better ways to intervene in that person’s life to turn it around than to lock
someone up for some enormously long amount of time, which is what we are doing here.
And, that leads me to the second myth which is on severe sentencing in this country; whereas,
the punishment should fit the crime. There are two factors that cause people, that have
fueled the system of mass incarceration in this country. One is the number of people
coming into this system. And, when Norman is telling you about that incredibly high
number that should shock us all on the number of people getting arrested in this country.
That is one of the key factors as to why our system has ballooned so extra essentially
in the last 40 years, and as to why our system is so large is because of the amount of time
our people stay behind bars in this country. The amount of time for sentencing is so disproportionate
compared to any sentencing schemes around the world. And, you heard Susan Herman in
the film talking about it in comparison with the sentencing schemes in other parts of the
world. But, there are stories that are very real, that come to our attention all the time
at the ACLU. Willy? S. in Texas, got 45 years in prison for purse snatching because he was
subject to a habitual offender law. Another person in Texas, Larry D., got 70 years for
stealing a tuna sandwich. Anthony C?. got 60 years for selling $40 worth of cocaine.
Jason H. got life without parole and will never see the day of light for selling drugs,
a non-violent offense. Cornell H. got life without parole for marijuana possession in
Louisiana. These are, granted, may seem incredibly extreme, but because of habitual offender
laws that basically stack sentences you can see in this country, sentences like this come
to life. These are real people, serving real time in prison. And, until there’s a sense
of American ????, what it means to spend a day, a month, a year in prison…the way that
we meet these sentences out without asking, well is this sentence really going to help
us reduce recidivism. Is it going to help this person come out into society and allow
them to become a productive member. Those aren’t necessarily the questions that we’ve
been asking and our sentencing schemes are so incredibly out of whack to the rest of
the world that I think for violent and non-violent offenses we are a country that is routine
with the death penalty unlike most other countries in the world. We have to remember that by
setting the bar, that kind of high, and frankly in so many violations by so many human rights
standards, that has already created a different baseline in this country around sentencing.
So I’m curious about how many of you in this country think that we are weeding out those
kind of lengthy sentences for non-violent offenses ? How many of you have heard of people
serving more than 10 years for a drug offense? So that’s a significant, that’s about half
of the students in this room that know of people serving more than 10 years in prison
for drug offenses. So What would you say to the people who feel like me? Like, how we
know that selling marijuana or selling cocaine is illegal and if you are doing it, you should
go to jail and pay the price. So, sorry! You know it’s illegal and you know you shouldn’t
be doing it, so you should pay the time. What would you say to people that think that way?
Did you want to respond or do you have another question? No, I wanted to respond! So, as
a society, you should have an idea, a social norm of an idea of what is wrong and what
is right. For decades, we’ve sold tobacco. We sell alcohol, knowing that it affects our
bodies as much as marijuana and cocaine. As a society, we know that cocaine comes from
a plant . What evolves from the plant can be terrible and how we deal with it can be
terrible, but we lock up individuals for selling minuscule amount of items which becomes social
issues, meaning like poverty. Individuals mostly in poverty figure that this is my way
out. This is how I’m going to get my economic benefit instead of having a real job or something
like that. That’s how they grew up. Like marijuana , we say it’s a violation of our social beliefs
when we see statistically speaking that we see what things we are capable of and in implementing
the system, like legalizing marijuana, but reforming it so we could use it as an economic
benefit instead of a social issue. So you are relating it to the fact that a lot of
these crimes there is kind of an economic hardship or poverty may be the cause of the
crime. And , that is one response but may not be satisfying to you, but another one
is that society has decided to ban drugs and you have a percentage of the population that
is addicted to drugs or may be in possession of drugs because of an addiction. The question
to me is how does incarceration help with that addiction without any kind of access
to services in prison? Often times, drugs may be available in prison, because of contraband.
We are doing a bad job of addressing the root causes and conditions that people may be in
and may cause them to have this addiction and we have just used incarceration as the
answer to everything, to every social problem. If you’ve got a bad kid whose got a bad behavioral
problem, well, use the criminal justice system. If you have a perceived immigration problem,
throw them into a detention center. If you have somebody who has a drug addiction problem,
whose probably going to cycle in and out of prison unless they have their addiction treated.
Well, we’re just going to use the criminal justice system. And, it’s proven to be quite
ineffective. The war on drugs was declared by President Nixon about 40 years ago. We
spent over 70 billion dollars on it and yet there has not been a dent made in terms of
supply and demand in drugs and I think that is the question. Can society make a judgment
as to the behavior that it wants to deem criminal? But, how effective is our system at actually
addressing what has caused people to have addiction problems. This is just one example.
I don’t know if others want to address it? Yes. I’d like to say something. I had the
opportunity to work for many years for the US House of Representatives Judiciary Committee,
and one of my responsibilities was the issue of crime . I was right there in the middle
of the sausage being made off the legislation which is referred to as a sausage making process
because nobody wants to see it. I will tell you that the way legislation is often made
is for legislators to try to out tough each other. I’m tougher on crime than you are,
and they think that will appeal to their constituents. I will give you two examples. You may or many
not remember Lenn Bias who was a great basketball player, who OD’d on cocaine. And, immediately
Congress said, “Well, we’ve got to immediately do something about this cocaine problem”,
and they enacted a whole bunch of new drug laws to deal with the quote, unquote, Lenn
Bias problem. Despite the fact that the states already had laws or duplicate federal and
state laws, and they had long sentences to go with what they had as victimless crimes
or fairly minor crimes, but for political reason, they created these long sentences.
There were a spate of carjacking and again it’s a state crime but the federal legislators
wanted to show that they were tough on crime, so they created a federal crime of carjacking
and, again, even if no one was hurt there were long sentences that were created. A much
more recent example is the disparity between powder and crack cocaine sentences. Years
ago there was a belief those who used crack as opposed to powdered cocaine…crack was
much more dangerous than powdered, and it needed to be punished at a much higher level
100 to 1 as opposed to powdered cocaine. And, of course, who uses crack cocaine? Generally
people of color. Powdered cocaine is more expensive. It’s generally used by white people.
So you had this enormous, enormous racial disparity. Congress was in there acting and
creating these crimes, telling this sentencing commission what to do and creating these mandatory
sentencings. It’s only recently come out that none of that was true and that there are the
same physical affects with crack vs. powdered cocaine and there are these enormous racial
disparities, and so people are starting to realize that they needed to change this disparity.
Now it’s still not one to one. It’s still not in the same sense the powder as opposed
to crack, but we’re getting there. They’ve lowered the disparity considerably. But still,
that shows you in addition that there’s a lot of racial misunderstanding, racial discrimination
in the legislature and in the criminal justice system in particular. You really have to look
at these crimes are not really being decided by the policy makers on the merits. They are
being decided on the basis of politics. And that’s certainly no way to run a criminal
justice system. I’d like to take the modest prerogative to ask the audience here and the
audience watching online if they want to weigh in at #lawdisorder to this question. So, we
are talking about over incarceration, throwing people in jail because we disapprove of what
they are doing. Do you guys have any ideas about other ways that we as a society could
show disapproval for certain behavior without just throwing people in jail? I believe that
a way to change is that instead of prisons being based on third grade testing scores
that we should start implementing it so kids have a future so they know that they have
something other than a prison cell waiting for them if they fail school. And for the
judging system to make small changes and they can impact society greatly. So we should get
the education system involved to prevent people from ever ending up getting engaged in the
criminal justice system. We could also get better involved with rehabilitation centers
because most juveniles get put in adult prison and they’re not the same age, they don’t have
the same mind standards. I guess implementing safer rehabilitation centers would actually
help them stop shooting drugs. So both comments talk about redirecting from prisons into other
approaches. Be it education or rehabilitation. The gentleman in the back. He stole what I
was going to say. I’d like to add, too, if I may. My name is Kimori, and along with people
get sent to prison for using crack cocaine or whatever type of drugs that are illegal
and instead of people deeming them that they should go to jail they should tell about how
it affects them and let people know that when they get addicted to drugs it becomes a habit.
They should let them know how it affects their body and what other type of alternative they
could use to get off the crack cocaine like rehabilitation services and stuff instead
of just going to jail. Next. I think that social normalcy should change because I think
that’s how the justice system was basically, right? Because, if society disapproves of
something and there’s a change in the law and counterparts on how society believes.
And I think that along with what Victor and Kevin said, it obviously includes education,
but it’s more of a stop and reflect and re-evaluate what’s normal and how we react to it. And,
I think that’s what it means to change. So maybe taking a look at what behavior privately
we find acceptable versus what we claim we find unacceptable publicly and trying to make
those .reflect each other more closely than they do right now. Just before we turn the
issue over, how many of you know what part of the constitution allows for a challenge
to a sentence that may seem so disproportionate or so long compared to what the crime is?
What can people do? How do lawyers address that? Do you know what part of the constitution
allows for a challenge? Is there part of the constitution? There are appeals. The part
of the constitution that allows to challenge a perceived sentence is the 8th amendment
to the constitution, which prohibits cruel and unusual punishment. It’s not actually
defined, so you can’t really say that there is cruel and unusual punishment. It’s not
really defined in the constitution. It’s really hypocritical. So it says this but we see kids
or adults get 20 years in prison but … It gets really into the question of how dynamic
the constitution is and why I always talk about the fact that each generation gets the
right to shape what the constitution means. The amendment that Vemita talks about says
that there shall be no cruel and unusual punishment, but what does that mean? There are some judges
that say well it means that if it wasn’t acceptable at the time that the constitution was written
than that’s cruel and unusual punishment. Others have now said that it actually has
to be defined by how society’s thinking has changed. I’m so glad that Vemita brought this
up, because it’s one area where something new is happening for the first time in maybe
30 years. Because you are absolutely right. The court has very much stayed away from ever
saying that a sentence of imprisonment is cruel and unusual, no matter how long. We
know you can’t draw on quarter people. We thought until 9/11, we couldn’t , under any
circumstances, torture people. And, we still don’t use that as part of our criminal justice
system; but, the length of a sentence, it’s just within the last few years that the Supreme
Court said that you can’t have the death penalty for somebody that is juvenile when they committed
the crime and now the Supreme Court said that you can have life without parole, without
the possibility of parole. So maybe there will come a day where the Supreme Court will
say, you know what? You can’t give out these sentences that Venita described. You can’t
send somebody to prison for 50 years for selling a few joints because they had a couple of
crimes before in their path. So, there’s hope that it can evolve. I want to say that this
depends, frankly, on who is sitting on Supreme Court. There’s a real division between whether
the court should find anything to be cruel and unusual and other justices who say let’s
really look at the facts. Like the juvenile life without possibility of parole case where
the people who decided and are on the side of evaluating the facts to decide is cruel
and unusual. So, it’s very important who is in our courts, who make these decisions. But,
I think it’s equally important to also look at our lawmakers because, I think, increasingly
lawyers who traditionally are always trying to give meaning to the 8th amendment in courts,
it’s become very difficult to say that a sentence actually violates the 8th amendment as you
correctly pointed out. So, there’s been a lot more work being done now in state legislatures
with federal congress to convince lawmakers that our sentencing schemes have just gone
so out of wack and there are just too many crimes on the books that don’t really protect
our public safety. They are not necessary, too. There’s a lot of work that people are
doing to actually give in some ways meaning to the 8th amendment to get their ways by
passing more reason and rational laws and that’s one way to actually change societal
norms is to actually work with lawmakers rather than just always relying on courts and often
getting the door slammed in your face. So there are different ways that people can actually
make a difference to give meaning to the constitution even if they never want to become lawyers.
One more question, then we need to move on. In the 5th amendment is says a person can’t
be deprived of life liberty or property without due process in the court system , so do you
think that kind of justifies the reason that the death penalty is justified because you
have the whole criminal process, you have the trial and the whole situation and their
life is being taken away, so do you think that that justifies that?
First, can I say that I think it’s fabulous that you are sitting there holding a copy
of the constitution in your hands and actually reading it. And, I hope you all will do that.
That’s a really good question. It’s one that scholars have debated on. A lot of judges
have debated on it. And, the question as to whether we should have a death penalty has
changed over the years. And the court at one time decided it was arbitrary and capricious
and there was no real system on deciding who got the death penalty and why, and so they
stopped it for awhile. And, then they decided that the states had fixed their statutes,
so let’s put it back in place. And, it’s still the case. It’s still arbitrary and capricious
so when you talk about due process the death penalty implicates all sorts of things. Like
the 8th amendment for cruel and unusual punishment, there is a 6th amendment whether you have
a good lawyer who is going to represent you, due process clause. Are you really getting
a fair trial. There are all sorts of constitutional provisions that relate to the death penalty.
More and more people are coming to see not only are there serious constitutional violations
that may lead to wrongful convictions, wrongful sentences. We know of people who have basically
been innocent yet they’ve been executed. But, more and more, people are also coming to see
this doesn’t relate to the constitution but the death penalty is much, much more expensive
to implement than life without parole. And, it is not bringing any different results.
It’s not doing what people thought it would do. The opinion in this country is changing
on whether the death penalty is worth it on all sorts of fronts.