Government and Politics and Social Issues18 Apr 2014 02:03 pm

The desire to be free and the need to protect our freedom has been a declared hallmark of modern civilized societies for the last several centuries. Personal liberty and one’s reputation are valued as rights to be earned through honoring the social contract. In fact in most societies the government’s main purpose is to insure that the freedoms of law abiding individuals are protected and insured. The phrase “give me liberty or give me death” attributed to Patrick Henry became a truism of the American culture. Imprisonment and slavery have replaced exile as the harshest punishment short of death that a society can inflict upon an individual.

You would expect and assume that a society that places such a high value on freedom would make every effort to insure that someone’s freedom was not taken from them unnecessarily or unjustly. You would think the act of terminating one’s freedom would be done as a last resort and only after every other alternative had been exhausted. Surely you would think that every effort and precaution would be taken to insure that a person would not falsely or mistakenly have their freedom taken from them. While all the sentiments regarding the essential primacy of freedom are ideals of our judicial system, its basic structure and functioning tell quite a different story.

Yet, while being judged by a jury of your peers and having witnesses take an oath to “tell the truth and nothing but the truth” seems like a good start, the very trial process is littered with obstacles and priorities which make truth and justice fairly inconsequential. In the majority of situations witnesses are asked yes and no questions which are designed to only yield the aspects of fact and truth which support the lawyers agenda. Any attempt by a witness to actually tell the whole truth is suppressed and redirected and if the witness persists in attempting to give a full and balanced reply to the question they could be held in contempt for “refusing to answer the question”.

In fact, one could say, that in a trial truth is a commodity used and exploited in the name of the higher purpose of the attorneys and that is to win the case. While witnesses take an oath to honesty, lawyers do not. Their ethic and currency is not truth, but on presenting the best and most biased case possible to support the portrayal of events in the way they want them to be viewed.

In the case of wrongful harm such as theft, assault or such the best interest of the victim would be to have the perpetrator imprisoned, rehabilitated and restitution extracted from him whenever possible. Yet, the prosecutor’s main goal is not to identify the true perpetrator and bring him to trial, but only to prosecute the man who for whatever reason stands accused.

Our system does not foster a true dedication towards finding out the truth, neither does it truly protect nor insure one’s freedom. Instead, the trial process is a contest between two opposing sides in which lawyers use all devices at their disposal to have their side win. Witnesses are asked questions in ways which emphasize desired perceptions and trigger emotional biases in jurors to carry the day.

Our system of justice seems rather callous when you think of what is at stake. When a person’s freedom and long term reputation hang in the balance you would think we could gear our judicial practices less towards winning and more towards discovering whether someone acted in a way deserving of the loss of their freedom.

A great deal of a trial lawyers education and ongoing professional instruction centers around the science of how to convince and influence jurors. Lawyers make a science out of how to speak, make references and influence jurors in subliminal and unconscious manners in order to get their support with no inherent regard to the actual innocence or guilt of the person accused. Making and winning a case, not attaining the truth, is the order of the day.

While the truth is often difficult and sometimes impossible to ascertain, considering what’s at stake, we should make every conceivable effort and devote the bulk of the trial process to arrive at certainty. In those cases where certainty is unattainable than and a person’s freedom should not be taken away.

What then would a judicial process dedicated to the truth look like? It would involve all parties working together to find out the truth and then after the truth has been discovered they the prosecution and defense could present the mitigating, heinous or chronic circumstances which help judge and jurors determine the best course of action.

Our economic system is structured in competition where distortion, exaggeration and biased perspective are somewhat indigenous to sales and commerce. The more pervasive our market based brand of capitalism is in our lives, the more dishonesty and deception become interwoven into our moment to moment experience.

The techniques of misrepresentation, exaggeration and deception have seeped out of commerce and have invaded our social, political and even spiritual existences. Yet, even if we were to find sufficient reason to continue to misrepresent, deceive and exploit in other aspects of social economic interaction, we should make truth and honesty foremost when it directly impacts one’s very freedom and the carrying out of justice.

Considering what’s at stake serving as a juror should be a treated as a solemn and venerable responsibility. Our civic courses should include instruction on the meaning and duty of serving as a juror. If we truly wanted jurors to appreciate the gravity and importance of the task at hand, they should be well compensated for their time serving. Currently, a sizable portion of the populace try to avoid doing jury duty and view it as a nuisance. It is the rare person who equates the preserving of the ideal of freedom and justice with the process of serving on a jury.

We still pose ourselves internationally as a beacon of freedom and justice.  In fact our government feels it is our moral duty to meddle, intervene and when possible alter the “immoral” and “unjust” practices, governments and leaders of nations throughout the globe. The fact that our nation finds it necessary to imprison the highest percentage of its citizens than any other nation on the planet does not strike them as odd or hypocritical. Yet, if we are such a moral and free society, than how we can  justify a system that removes the freedom of so many of its citizens. Are we more immoral than others? Or do other nations such as our European allies just let 9 times as more dangerous and immoral criminals undeserving of freedom to roam their streets and work in their businesses?

While this tendency of ours to jail segments of our population, especially minorities and the poor, at a high percentage has been going on for decades we could point out one disturbing dynamic. We mentioned above the dangers of having our system of justice and with it people’s very freedom being dependent on economic competitive factors which supplant truth and justice as the primary concern. Over the last few decades the trend towards privatization of prisons has grown considerably. In order for these prisons to succeed and make a profit they need to retain a rather high occupancy rate, which means they will not be able to survive unless our conviction and imprisonment rate stays high if not continue to increase.

While there are literally hundreds of fine articles discussing the increased role and function of privately owned prisons and their impact on the job market and its impact on our justice system you could start with the following as an introduction: Privatization of the US Prison System

The damages done to lives by white color crime while at least as significant as those caused by poor substance users or petty thieves, yet the percentage of people who go to jail for breaking laws which destroy people’s financial and practical existences is disproportionately low, and in some cases such as banking fraud almost nil. Our system of justice seems to value the freedom of the wealthy, regardless of the severity of their harm, to the freedom of the poor or minorities. While we officially ended slavery long ago, some would make the case that our prisons have done a rather decent job of continuing the actual practice of slavery by taking away the freedoms of minorities through imbalanced incarceration.

While this possibility is worthy of discussion it is not the central issue of this post which is just the relatively flippant way our society through its competitive trial system treats the reality of human freedom. I personally find it very disturbing when the main goal of a trial isn’t the truth regarding the innocence or guilt of the accused, but in the winning of a case by the prosecution or a defense attorney. As mentioned before certainty and truth are not always attainable, but we should at least devise a system which is devoted to and maximizes all energies towards the uncovering of as much fact and truth as possible. Personal freedom and social justice truly deserve our finest efforts, and should not be reduced to possible outcomes of a system of justice built on personal competition between lawyers measuring their success through winning cases even when the odds and facts are not in their favor.

Jim Guido

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