In April 2005 the international community began to take a closer look at the United States justice system as its government attempted to explain and or deny the presence of admitted terrorist, Luis Posada Carriles. As news stories sprouted from even the more main stream media such as the New York Times, the Washington Post and the Los Angeles Times calling for the extradition of Posada to Venezuela, a country with which the U.S. has had a long standing extradition treaty, Washington went into a frenzy. After some false starts concerning what it was going to do about Posada, Washington "defended" its position by hurling barbs at Cuban President Fidel Castro about the political asylum granted to Assata Shakur by the Cuban government. Rightly so, President Castro retorted that Ms. Shakur had not received justice in the United States and that she, like many other political prisoners, had been persecuted and denied a fair trial.
By aiming the spotlight on the criminal justice system in the United States, President Castro exposed a tender nerve for Washington. My more than 20 years as a criminal defense lawyer and professor of criminal defense advocacy confirm the widely known assessment that every aspect of the criminal justice system is ripe for criticism and laden with hypocrisy.
The United States incarcerates more people per capita than any other developed nation on earth. The population of the United States comprises 5% of the world’s population but its incarcerated population is equal to more than 25% of the world’s prisoners.
According to the Bureau of Justice Statistics, based on current rates of first incarceration, an estimated 32% of Black males will enter State or Federal prison during their lifetime, compared to 17% of Hispanic males and 5.9% of white males. In other words, one third of Black men can expect to be incarcerated during their life times if they live in the United States.
Incarceration in the United States is a growing industry. In 2001, an estimated 2.7% of adults in the U.S. had served time in prison, up from 1.8% in 1991 and 1.3% in 1974. The BJS reports that as of December 31, 2001, there were an estimated 5.6 million adults who had ever served time in State or Federal prison, including 4.3 million former prisoners and 1.3 million adults in prison.
At every stage of the criminal justice system in the United States, Blacks, Latinos, Chicanos and other people of color and the poor are disproportionately impacted. Decisions by law enforcement personnel concerning who to stop, who to arrest and how to charge, are all infused with racial bias. Decisions regarding indictments, plea offers and requests for enhanced sentences and the death penalty, are similarly guided by considerations of race and class. Sentencing decisions regarding probation and incarceration reflect the same racial overtones as the earlier stages of the system. The racist practices of prosecutors was so prevalent that in 1986 the United States Supreme Court finally outlawed the practice of routinely removing Blacks from the jury in Batson v. Kentucky (476 U.S. 79). Prior to 1986, the courts routinely ignored the practice. Following Batson, prosecutors simply offered pre-textual reasons for their racist challenges to potential jurors and the courts turned a blind eye.
Prisoners in the U.S. are systematically incarcerated hundreds, and in many instances thousands, of miles away from their families and loved ones. Family contact is discouraged and thwarted. Frequently family members travel hundreds of miles to visit their loved one and they are denied entry on minor technicalities.
U.S. prison officials regularly create obstacles when attorneys seek to visit their clients. Memos authorizing the visit mysteriously disappear on the day the attorney arrives for the visit. Use of private attorney-client conference rooms is denied. Visits are inexplicably cut short and routinely monitored by video camera and roaming guards.
Similar tactics are often employed against political defendants during pretrial proceedings. The cases of both Assata Shakur and the Cuban 5 are reflective of the unconstitutional obstacles created to interfere in trial preparation. Ms. Shakur’s lawyer, Evelyn Williams, Esq. had to obtain a court order to get access to her client. Lawyers for the Cuban 5 were limited to brief designated time periods when they were allowed to meet with their clients prior to trial.
Such interferences compromise the ability of the defendants and their counsel to develop trial strategy, prepare testimony and make crucial decisions about witnesses and evidence. In the case of the Cuban 5, independent polls showed that it would be impossible for them to get a fair trial in Miami. Despite this objective evidence, the judge denied the defendants’ motion for a change of venue, even to Fort Lauderdale, just 30 miles away. Assata Shakur’s requests for a change of venue were initially denied and then finally granted with a move to Morris County, one of the richest and most conservative overwhelmingly white counties in the state of New Jersey. Further, the hysterical pretrial publicity assisted in creating an atmosphere that guaranteed the defendants would not get a fair trial.
During the last month President Fidel Castro has delivered a calculated series of public addresses that have been heard around the world, including the United States. The arduous campaign to obtain justice for the Cuban 5 and to expose the hypocrisy of the criminal justice system has been the backdrop to these presentations.
President Castro’s expose’ of the system rings so very true to the millions of Americans who have been incarcerated in the United States and the more than 100 political prisoners who are currently held in its prisons. And the millions that have had their lives interrupted by the criminal "justice" system, they know that fairness is usually an illusion discussed widely in classrooms but not mentioned in courtrooms. They know it’s unjust. Castro’s pronouncements bear witness to the fact that "justice" in the United States, isn’t justice at all.
By J. Soffiyah Elijah, Deputy Director Criminal Justice Institute, Harvard Law School.
J. Soffiyah Elijah serves as Deputy Director of the Criminal Justice Institute (CJI) at Harvard Law School (HLS). In her capacity as Deputy Director at CJI, she is both an administrator and a clinical instructor. As an administrator, Ms. Elijah is responsible for leading the fulfillment, development and expansion of the Institute’s work to address the urgent needs of the powerless, voiceless and indigent in the criminal justice system. As a clinical instructor, a position she has held at CJI since 1999, she supervises third-year law students in the representation of adult and juvenile clients in the Roxbury and Dorchester Divisions of the Boston Municipal Court. Under Ms. Elijah’s leadership, HLS won the 2004 National Criminal Justice Trial Advocacy Competition, the same Competition at which HLS placed second in 2003. Ms. Elijah’s leadership proved victorious again in March 2005; her legal expertise helped secure the release of a CJI client who had been incarcerated for 31 years. Prior to coming to Harvard Law School, Ms. Elijah was a member of the faculty at the City University of New York (CUNY) School of Law. She served as Director and Supervising Attorney of the Defender Clinic. At the Child Welfare Advocacy Fellowship Program, where she also served as Director and Supervising Attorney, Ms. Elijah directed the development of law students to work as creative advocates in New York City’s child welfare system. In addition, Professor Elijah taught courses in criminal procedure and juvenile rights. Ms. Elijah practiced law through various avenues before transitioning into the clinical practice of academia. She was a Supervising Attorney at the Neighborhood Defender Service of Harlem (NDS), where she defended indigent members of the Harlem, New York community. Before joining NDS, Ms. Elijah was in private practice, specializing in criminal defense and family law. She also worked as a Staff Attorney for the Juvenile Rights Division of the Legal Aid Society. With more than 20 years in the legal profession, the scope of her interests and scholarship is diverse. Prof. Elijah has authored several articles and publications based on her research of the U.S. criminal justice and prison systems. She has represented numerous political prisoners and social activists over the past 18 years. And, her travels to Cuba over the past 13 years have enabled her to conduct extensive research on the country’s legal system, with a focus on its approach to criminal justice issues. Ms. Elijah was awarded a Revson Fellowship at Columbia University to continue research in her areas of interest. Prof. Elijah’s current research and scholarship focuses on criminal justice issues and the prison industrial complex. Born in Queens, New York, Ms. Elijah earned a Bachelor of Arts from Cornell University and a Juris Doctorate from Wayne State University Law School (Detroit, Michigan). She is admitted to the bars of New York, New Jersey, Massachusetts and the United States Supreme Court.
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