Capitalist production theory is killing our justice system. It creates an unnecessary need to convict more people whether they are guilty or innocent.
The notion that the state should meet a high burden of proof is an ancient one. At the end of the first century the Roman emperor Trajan voiced the principle that it’s better a guilty person go unpunished than an innocent one be condemned. A contemporary influence for the framers of the Constitution, the English judge Sir William Blackstone gave us Blackstone’s formulation: "It is better that ten guilty persons escape than that one innocent suffer." This ideal is a bedrock concept in the American justice system. It is philosophically acceptable that a few guilty people go unpunished if the state is held to a higher standard. But that higher standard only means something if it protects the innocent. If innocent people are routinely thrown in with the guilty that’s an indication that the system is corrupted.
One of the primary reasons plea bargaining exists is to convict those who are likely to be acquitted at trial. From a prosecutor’s view “half a loaf is better than none.” This is the technowar mentality at its most insidious. A prosecutor is measured by his or her ability to get convictions. University of Chicago law professor Albert Alschuler explains the logic saying that the length or severity of the sentence doesn’t really matter when stacked up against the political value of making the maximum number of convictions. He quotes a Chicago prosecutor who said "When we have a weak case for any reason, we'll reduce to almost anything rather than lose." Does that sound like justice to you? He quotes another prosecutor from downstate Illinois who looked down on big city prosecutors who were too willing to make deals and close cases. According to the downstate attorney “The only time we make a deal is when there is a weakness in the case.” Even though they may have had different reasons, both big-city and small-town prosecutors end up with the same result: The innocent are punished with the guilty.
When prosecutors only care about winning society loses. Prosecutors hold immense power in the American justice system. We trust them to make the right decisions and remove dangerous people from society. But bad policies like minimum sentences and perverse production incentives produce bad outcomes. Everyone should care if an innocent person is sent to prison or is coerced into admitting to something they didn’t do. One reason to care if an innocent person takes the blame for a crime is that the real culprit still walks among us – ready and willing to commit more crimes! Another reason is that you or I could be the next innocent person chewed up by our unjust legal system. Personally, I am not a huge fan of encouraging naked self-interest as a motivation. But in this case, it really makes sense. There is no telling when an ambitious prosecutor might come for you or me. We are the ones who could pay for turning a blind eye to injustice.
Just as technowar senselessly murdered innocent Vietnamese civilians, production demands in the drug war and the war on crime claim innocent victims as well. Production measures that put conviction rates ahead of protecting the innocent are a threat to the rule of law. A justice system where justice is a secondary concern does not deserve public support. It is corrupted. The rush to pump up conviction rates with plea bargains has basically obliterated the right to trial more than 90 percent of the time. Yet there is little recognition by the American political class that any changes might be needed. Both major parties have enthusiastically passed “tough on crime” measures over the past few decades that contribute to the problems described here. Neither major party is inclined to end the war on drugs or the war on crime because they fear looking weak. Any move toward social justice courts accusations of being “soft on crime” or “soft on criminals” – a perceived weakness in political culture. In the view of the American political class protecting the innocent is less important than appearing strong.
There are two ways that the American public can counteract this travesty of justice. The first is demanding a jury trial. If you are charged and you know you are innocent, don't take the deal. Refuse to confess to anything you have not done. Make prosecutors put you on trial and prove their case. The second way we can fight back is by refusing to convict. Jury trials are an outlet for radical democracy and justice. Every jury member has the ability to say no. Every jury member has power. If you believe a person is being unfairly prosecuted, refuse to convict. A third way, bonus, is to trash talk plea bargain convictions to everyone you know. Exercise your voice. Exercise your power. Our justice system has been corrupted. There has to be a better way.
This is part 5 of a 5 part series on how capitalist production theories and the war on drugs have destroyed our justice system. Please like, comment, and restack to help other people find me on Substack.
Let’s make them pay.
This is PART ONE of the series.
This is PART TWO of the series.
This is PART THREE of the series.
This is PART FOUR of the series.
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