Image of Bronze of Lady Justice and the Scales, with the text, "Justice System 1.0. Not working for everyone. Needs new programming and code?

Justice 2.0: Does The U.S. Justice System Need A Complete Rewrite?

Shannon D. Hanson  Link to Shannon's Facebook Profile  Linjk to Shannon's twitter profile

 


Justice 2.0: Does the U.S. Justice system Need a Complete Rewrite?

 

There is a saying in computer programming circles that the only difference between a bug and a feature is documentation.  It is also said that finding bugs in a computer application is simple. All you have to do is release the program for others to use.

Ideally, though once a bug is reported, its source will be found and eliminated. More often than not the next step is denial. Sometimes, denial becomes impossible and so the process of spinning the glitch into a desirable, or at least defensible feature, and then documenting it begins.

A Raspberry Data Center
Data centers need program updates, troubleshooting and network upgrades. So does the American Justice System.

Like any system, the criminal justice system of the United States has bugs. It has really big and really obvious ones in fact. Our system of justice has more flaws than Internet Explorer. Fortunately, Microsoft recognized that IE was too flawed to fix and put it out to pasture when they released Edge with Windows 10.  Sadly, when it comes to the justice system, we can’t even get an admission that there are minor ticks, let alone acknowledgments of major fabric eating moths in the machine.

Worse yet, when confronted with irrefutable evidence of bugs in our Justice System, many rely on another age-old computer programmer fallback and claim operator error.

For example, when police shot Tamir Rice dead, no fault was found with the system. Instead, a twelve-year-old dead child was blamed. And for what? For doing what lots of kids do every day.

Our criminal justice system is supposed to protect children and punish those who hurt them. But it did just the opposite by issuing the ultimate punishment to Tamir for playing in the park and protecting those who killed him.

While Tamir Rice’s mother was picking out caskets her dead baby was being demonized. “If Tamir had stayed home, none of this would have happened,” was said, as was, “If only Tamir’s mother had kept him inside she wouldn’t have lost a child”. In other words, it was all operator error.

Heaven forbid we take a long hard look at what went wrong leading up to Tamir’s death. No, it wouldn’t have brought little Tamir back, but maybe it could have prevented the senseless death of someone else’s child.  How many have died since?

Meanwhile the officer who executed Tamir and all others involved are spared even the indignity of an unemployment check. All in the name of protecting the system. Excuse me, but I see that as a bug that would make Mothra shiver in fear.

Consistent injustice

I work in tech. When troubleshooting bugs one of the first things you determine is whether or not the problem can be reproduced. In the case of our Justice system the answer to that question, sadly, is yes. It can be, and is reproduced on a regular basis.

And it is not just the police killing people, although that should most certainly be a weighty enough straw to at least slow the camel.

How many stories do we need to read about wrongly convicted people spending years, or even decades behind bars before we recognize a problem? People like Kevin Strickland, Andre Davis, The Cental Park Five, and so many others. Some have even been sentenced to death but  found to be innocent others executed, but are believed to have been innocent.

How many times do we have to see rapists such as Brock Turner or the teenager known only as G.M.C.  and mass murderers such as Dylann Roof be molly-coddled with kid gloves while others are allowed to die in custody after being jailed for not signaling a lane change, or kill themselves as a result of being beaten by guards and spending 400 days in solitary confinement while being held for months on suspicion of stealing a backpack. before we recognize a problem?

How many times do we have to see justice dished out in exquisite, lavish portions to those with money while those without are forced to eat scrapings from a trough filled with a rancid stew made of prosecutorial misconduct, judicial malfeasance, police overreach, forced confessions, and mishandled evidence before we recognize a problem.

If your reaction to these injustices is to recite the popular mantra that it only happens a few percent of the time, ask yourself this, if only a few percent of all the planes fell to earth, would you still get in one? When one crashed would-be so cavalier?  Would you blame the passengers?

Don’t worry about answering. You’d likely never have to make the choice. When a software glitch caused two 737 Max airliners to crash five months apart, the airliner was grounded worldwide. After the crashes I don’t recall ever hearing how those passengers would still be alive if they had just stayed home.

The 737 Max anomaly was fully investigated. It was found that employees at Boeing knowingly withheld information from the FAA. Put starkly, Boeing murdered 346 people in the name of profits. Don’t worry though, justice was served, after all Boeing paid a fine.  Do you see the problem yet?

To be clear the deaths from those two airplane crashes are tragic. But why are those lives so much more important than the lives of the sons and daughters victimized by a flawed and sometimes violent justice system? The cause of the 737 Max “bug” was actively pursued, as it should have been.

Meanwhile, death at the hands of police officers is not even part of the data that police departments in the United States are required to report to the FBI for yearly statistics. So, we can’t even be sure how often it happens.

 

Broadcasting Injustice

Although these problems are not new, what is relatively new in the increased visibility which democratized media and information has brought about. Pew Research polling suggests that 85 percent of American adults own a smartphone. In other words, practically everyone carries a video camera and a plethora of apps and platforms make uploading the video quick and simple.

Increased citizen journalism focused on police misconduct has caused people to wonder if police overreach is increasing. in fact, it is not getting worse, sadly, it is not getting better either. but often it is getting filmed making it hard to deny.

This increased scrutiny is having a small effect though. People are finally at least talking about the problems in our criminal justice system. This is especially true after 17-year-old Darnella Frazier‘s recording of the death of George Floyd kicked off weeks of protests against police brutality.

Mr. Floyd’s death is widely considered to be the point at which the conversation about police brutality that had been spinning for years, finally gained a little traction. How ironic to think that without that video it is likely Floyd’s death would have brought no more mention than a paragraph in a newspaper, if even that. His killer and the cops who stood by and watched would still be wearing a badge.

Darnella’s video along with others citizen videos has come to serve as macabre documentation of police brutality. In so doing, this bug – which police would have you believe is not a problem – has been shown to be a feature. And, it turns out it is a feature not many find appealing.

Demand for Justice system updates

Only 6 percent of all American’s do not believe some changes are needed in how this nation does policing. More than 50 percent believe major changes are needed. This according to a Gallup poll from 2020.

Screen capture of poll questions from the Gallup organization, indicating that over 60 percent of Americans favor changes in how policing is conducted and the means by which that could be effected.

The same poll shows that of the nine separate recommendations polled, seven received 50 percent or greater support.

Although only 15 percent of Americans believe that police departments should be abolished, almost one hundred percent believe that police departments need to punish abuses by officers including establishing a national database so those officers who repeatedly offend may not be able to work as police officers ever again. Fully half the people want to eliminate officer involvement in non-violent crimes.

It looks like a good start.  But alas, what people want and what some lawmakers and police departments want seem worlds apart.  Reforms that were promised have suffered vapor lock at the state and federal and local level. Meanwhile the killings continue.

Time magazine reports that the killing of people by police has not slowed in the year after the George Floyd murder when compared to the five previous years.

Documented injustice

Although the police cruiser gets most of the attention, the bugs in our justice system are found in the prosecutor’s office, the interrogation room, even the judge’s chambers.

The Innocence Project tracks the causes of those convictions which have been overturned by DNA evidence. 72 percent of those have shown misidentification by an eyewitness to be among the factors in the conviction. While this may not seem at first to be a problem with the justice system, an examination of the underlying reasons for many false identifications tells a different story.

 

photo of a police suspect line up from North Carolina
Of Virginia’s 16 DNA exonerations, 13 involved eyewitness misidentification. In a famous case, eyewitness misidentification led to the wrongful conviction of Ronald Cotton in North Carolina, who was No. 5 in the photo above. – Brian McNeill / Virginia EDU

 

In some cases, police have instructed the witness that the suspect is among those in the lineup rather than that they may or may not be in the line-up. This is known to make the witness feel as though they must pick one.

Other times a suspect is made to stand out in a lineup in some way, such as being the only one over a certain height. in other cases, the suspect has appeared multiple times in an array of pictures shown to a witness, or been the only person the witness sees when police use a trick called the show up.

In the case of Anthony Broadwater, the woman who he was convicted of raping, Author Alice Sebold, chose a different person from a lineup. Police even told her she had chosen “the wrong” person, but still charged Mr. Broadwater on the basis that the one she chose strongly resembled Broadwater. Sebold later identified Broadwater from the witness stand, based, most likely, on the presumption that the person charged must be the guilty person.

Some sort of suggestive practices by the police has been identified in almost 80 percent of the cases where misidentification is involved.

Ms. Sebold recently tendered an apology to Anthony Broadwater:

“I will continue to struggle with the role that I unwittingly played within a system that sent an innocent man to jail.  I will also grapple with the fact that my rapist will, in all likelihood, never be known, may have gone on to rape other women and certainly will never serve the time in prison that Mr. Broadwater did.”

Justice System 2.0

For many who look at the overall picture it is hard not to see a system that is well beyond the point where even a focused campaign of bug removal would have much effect. Those who still need evidence should read this article from Open Secrets Foundation which outlines key findings of The Sentencing Project, or this one, which comes from Prison Policy initiative.

These findings are part of a large body of work which clearly show racial bias throughout the justice system from the bottom where minorities are more likely to be pulled over to the top where minorities are more likely to receive a longer sentence, and more likely to receive the death penalty, compared to white defendants from similar economic and social positions.

Maybe it’s time the Justice System as we know it receives the death penalty.

It’s not just the abundance or bugs in the system, or the absolute unwillingness by key players to patch them that is the real problem. The real problem is that these are not flaws they are features.  Justice system 1.0 was built this way. Racial inequity is not a symptom or side effect, it is the core purpose of the system.  It can’t be fixed and should be replaced.

Continuing the analogy of our justice system as a computer program. No programmer would look at something like this and try to fix it. They would suggest it be completely rewritten, in a more modern language using agile practices. Unless of course it was the same programmer who wrote the code in the first place. That or if the programmer liked the racist features of the program. Therein lies the rub.

It is time that Justice 2.0 be designed built and implemented.



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