To say that our system of laws that regulates conduct between members of society is a complex entity is an understatement. While the principles underlying the passage of laws that prohibit criminal behavior and the description of behavior as criminal itself are fairly straightforward, there is almost nothing else beyond that which can be so classified.
The reasons why people come into contact with the criminal justice system, their treatment in that system, the results obtained by the functioning of that system and the output and long-term impact of having been through the system are complicated and intertwined. Economics and education play just as much of a role in what leads people to a life of crime as any inherent proclivities they might have for lawless behavior.
While most people would acknowledge the endemic problems of our system on the macro level, somehow these nuances and complexities are often forgotten when it comes to an examination of an individual case.
It seems that the easiest thing to do is to when dealing with an individual is to ignore or gloss over the fact that the defendant is, in fact, an individual. Perhaps there is something in the human mind’s coping mechanism that forces us to do this, in order to avoid confronting the life-changing impact that the machinery of the justice system has on individual lives.
Most people get their exposure to the justice system not from personal observation or participation, but rather from news reporting by local and national news organizations, newspapers and online periodicals. It is through this lens that defendants, judges and lawyers are presented to the public at large, which often includes judges, jurors and legislators. Public policy and decisions in individual cases are thus formed and shaped and influenced by the perspective of the justice system that is put forth by those in control of the news.
It is this perspective that framed the “tough-on-crime” years in America, which lead to excessive sentences for drug offenders, absurd mandatory-minimums which handcuff judges and prevent them from making individualized decisions, a rampant death penalty and fear-mongering election campaigns which persist to this day.
This one-size-fits-all view of all defendants as mythical “criminals” also influences jurors who are called upon to serve and determine the guilt of an individual. As Justice Frankfurter explained in Irvin v. Dowd:
One of the rightful boasts of Western civilization is that the State has the burden of establishing guilt solely on the basis of evidence produced in court and under circumstances assuring an accused all the safeguards of a fair procedure…How can fallible men and women reach a disinterested verdict based exclusively on what they heard in court when, before they entered the jury box, their minds were saturated by press and radio for months preceding the matter designed to establish the guilt of the accused.
But the perspective to report fairly and neutrally and intelligently is hard to come by when the reporting is done exclusively by people with little or no familiarity with the justice system. Take, for example, America’s darling crime story of the last year – Serial and the murder of Hae Min Lee by, perhaps, Adnan Syed – and the storm of discussion surrounding the format and the narrator Sarah Koenig. While a significant proportion of the criticism focused on the racial insensitivity, Koenig’s greatest sin in my opinion was letting this opportunity to shine a spotlight on the fallibility of the criminal justice system go wanting.
By making the show about Koenig‘s own Woody Allen-esque quirks, she shines that spotlight inward to her own perspective, her own life-experiences and her own reactions to the facts of the case and then processes of the criminal justice system. Koenig’s assertions that “they must have had enough evidence to convict or else they wouldn’t have convicted him” lay bare a lack of understanding of reality.
That is because, in the end, she is a spectator, just like the hundreds of thousands who tuned in and downloaded her episodes. To her, just like to the many who write court reports by lifting out of the police blotter, experience is always shaped by being in the spectator’s section of a courtroom. To her and those like her, the system is fair and the system is just and that’s a matter of black and white. It is the modern day Coliseum – those who have can sit and watch the blood sport of those who have nothing and are subjugated by a system that confounds at every turn.
It’s unfortunate that Serial has become so popular as a detective story rather than an examination of how imperfect our system of laws is because it has legitimized the idea that the fallibility of the criminal justice system is nothing more than a spectator sport; that there is always a right outcome and a wrong outcome and that the job of the observer is to suss that out, instead of realizing that such an attitude strikes fear in the hearts of those hundreds of thousands who have to rely on the podcast listening elite to determine their fate.
[This is my latest column for the CT Law Tribune.]