Yes, the criminal justice system is rigged

Writing under the handle “Bronxiniowa,” Ira Lacher, who actually hails from the Bronx, New York, is a longtime journalism, marketing, and public relations professional.

Former President Donald J. Trump thus reacted in dismay last week after a Manhattan jury convicted the former U.S. president and current GOP candidate to reclaim that office on 34 counts of business impropriety, adding …

Sorry; that wasn’t Trump who said that. Or any Trump supporter. Or last week, or last year, or even last decade. It was what University of Southern California law professor Jody David Armour told the Los Angeles Times after four police officers in that city were acquitted of assault against Rodney King in 1992.

Trump and his millions of minions have insisted from the get-go of his four indictments that the justice system is stacked against him, and them. Guess, what, folks: They and we agree!

Almost half of Americans—including 55 percent of Democrats and 56 percent of people of color—believe the criminal justice system is “somewhat unfair” or “very unfair,” according to a Gallup Poll taken last November. They scoff at the inherent unfairness of a system that disproportionately rewards the wealthy and the white; is constipated with backed-up caseloads; understaffed with judges and prosecutors; and inundated with overextended defense lawyers who measure client consultation time in minutes rather than hours. The end result is a mishmash relying on expediency rather than administering justice.

We’re not even talking about the U.S. Supreme Court, which has the confidence only of about 4 in 10 Americans, according to Gallup. State courts, which oversee the vast majority of civil and criminal cases, have likewise seen an erosion in trust.

One study, reported by researchers Kenneth E. Fernandez and Jason A. Husser, noted that just over half (52 percent) of North Carolinians believe their state courts are “sometimes,” “seldom,” or “never” fair to certain groups such as black people, Latinos, and poor people. More than 7 in 10 disagreed or strongly disagreed that their state courts were “free from political influence.” The same percentage agreed that judges, who are elected in the Tar Heel State, were influenced by elections.

Racism, wealth-ism, and politics aside, our courts are simply too overcrowded to do little but mete out sentences on an assembly line. Many courts closed for extended periods during the height of the COVID-19 pandemic, delaying hundreds of trials, overburdening lawyers, judges, and prosecutors, and heightening the rate at which they bail out of the system. Georgia, for example, reported a 44 percent prosecutor turnover rate in 2021.

The courts’ assembly-line nature assures that only a tiny number of cases are tried. The American Bar Association (ABA) reported in January that nearly 95 out of 100 convictions in state courts and 98 out of 100 in federal courts are plea bargained. The major harm, the ABA concluded, is “the use of impermissibly coercive incentives to induce defendants to plead guilty beyond the sentence.” Those incentive include threatening to prosecute defendants’ spouses and even children. The ABA report also evidenced a racial bias in plea cases:

Black defendants in drug cases are less likely to receive favorable plea offers that avoid mandatory minimum sentences. The same was found in gun cases, where Black defendants are more often subjected to charge stacking than white defendants. Further, white defendants who face initial felony charges are less likely than Black defendants to be convicted of a felony, and white defendants facing misdemeanor charges are more likely than Black defendants to have the cases dismissed or resolved without incarceration.

Regardless of race, all too frequently defendants can only take the advice of their attorneys, who counsel them to plead to a lesser sentence—often involving incarceration—or face an apparent odds-on guilty verdict, with a hefty prison term. U.S. Justice Department guidelines instruct that “a defendant may only plead guilty if they actually committed the crime and admits [sic.] to doing so in open court before the judge.” But this seldom occurs. Which is why innocent people frequently plead guilty to crimes they didn’t commit, according to Iowa State psychology professor Dr. Miko M. Wilford.

“When prosecutors offer really dramatic plea discounts, like five years in jail compared to 25 years, then, innocent or guilty, you’re likely to seriously consider it,” Wilford told a publication by her former employer, the University of Massachusetts at Lowell, in 2019. “That kind of sentencing should not be allowed because then plea bargains essentially punish innocent people for exercising their constitutional right to a trial.”

The mega-burgeoning case rate has made a mockery over ethical guidelines for adequate attorney-client consultation time. “A justice system burdened by triage risks unreliability, denying all people who rely on it—victims, witnesses, defendants, and their families and communities—efficient, equal, and accurate justice,” concluded a RAND report, released in 2023.

If you can’t afford to buy time, you’re too often left with a take-it-or-leave-it approach. “For hundreds of thousands of arrestees every year, the difference between freedom and jail depends solely on wealth status,” agrees the organization Equal Justice Under the Law.

A wealthy person can buy their pre-trial freedom, keep their job, and live at home while preparing their defense. An arrestee who is poor must stay in jail for days, weeks, months, or years until their case resolves. Those detained prior to trial are more likely to lose their jobs, get evicted from their homes, and be unable to care for dependent relatives.

Who are many of those defendants? Not those who resemble the former president. “The odds of receiving a plea offer that includes incarceration are almost 70 percent greater for Black people than white people,” a report by the organization Vera Institute of Justice reported. Defendants who have pled guilty can withdraw their pleas and appeal. But the process is complex, cumbersome, lengthy, and often costly.

The verdict against Trump is unlikely to change many people’s minds about him, most analysts agree. But it could spur the needed changes to a system that is supposed to administer justice but instead administers little but increasing cynicism.

We can roll our eyes when a Trump lawyer hauls out the famous quote about how a district attorney could “indict a ham sandwich”—falsely attributed to former New York City judge Sol Wachtler. We can recoil in horror at Trump revanchists who have called for retaliatory violence against what they consider a “rigged” justice system.

But they are not wrong: America’s criminal justice system is rigged: in favor of wealthy, important, and white people. Like the first former president to be criminally convicted, they are more likely to get their days in court, and lighter sentences upon conviction, than the indigent, ordinary schlub who breaks the law.

Top image of blurred empty courtroom is by Amerigo_images, available via Shutterstock.

About the Author(s)