A man I respect a great deal once said that there were only about twenty honorable judges in the United States – those who refused to preside over mandatory sentencing cases. There is always one case that outrages the public, because someone they think deserves worse gets a light punishment at the hands of a judge. But there are many, many more cases where due to mandatory sentencing laws – especially the idiotic three strikes legislation, someone who has committed a petty crime has been punished with much more than any rational person could consider just (one that comes to mind is someone whose third strike was stealing a bicycle.)

Cookie-cutter one size fits all justice is often touted as fair, because everyone is treated the same way. But fairness in the justice system (if we even dare conceive of such a thing) requires taking individual circumstances into consideration. If someone is a recreational marijuana user that deserves consideration; if it’s their first time that deserves consideration; if the killing they are charged with was a mercy killing that deserves consideration, and so on.

It is true, of course, that giving judges such discretion will lead to times when it is abused. Sometimes it will lead to corruption, since the purchase of a judge is worth something (these days you need to buy the prosecutor, simply moving the money flow around a bit.) But it is also true that in the majority of cases discretion is prefferable; that there is no money involved and that if you don’t like the decisions of the judiciary the solution is not to bind their hands but to slowly change the composition of the judiciary (or quickly, in areas where the judiciary is voted in.)

Every miscarriage of justice harms the public’s respect for the legal system. When non-violent drug users who have never trafficked are locked away for a good chunk of their lives for a habit that one third of the population has indulged in, to no great harm to themselves let alone anyone else, who can have anything but contempt for the system? Who can call that “Just” with a straight face?

It is unfortunate, indeed, that we do not have more, rather than less jury trials, and many many less plea bargains, so we could see if the British solution would work.

You see, once upon a time the Brits used to kill a man for, well, pretty much anything. Steal a chicken and you swung.

What happened was the juries stopped convicting, even when there was clear evidence the crime was committed. They decided that the punishment didn’t fit the crime, and in the end the Crown gave in and changed the punishments.

In the US the criminal justice system simply isn’t working. The vast majority of cases are pled out – the prosecutor makes a deal and the accused goes to jail without every having a real trial, let alone a jury trial. A few men and women choose exactly who goes to prison and pretty much for how long. Normal people can’t take the risk of a trial and with draconian laws that take all discretion away from judges (and remember most trials are judge only) there is little reason to bother anyway.

Canada’s recently been under some renewed pressure to add some more mandatory sentencing laws, with foolish politicians attracted to the easy political credibility of being “strong on crime”. I’d urge those politicians to rethink their position – because the solutions they are offering have been tried elsewhere and not worked. Find another easy political target, but don’t ruin people’s lives by running with this one.

In the US I would suggest the current system is in clear violation of Constitutional guarantees of a fair and swift trial for all accused, with a jury of their peers and that what is need is to give everyone that – a Supreme Court ruling in this regard would be useful, though with the current makeup, it is highly unlikely.

And yes, there is no way that everyone could have a fair speedy jury trial in America today.

That’s the point. And that means that if justice is to be done America should either decide if locking all these extra people up, the most in the world, more than any other nation, including Russia, is really worth spending the money necessary to do it justly – or if, perhaps, there are some people being sent to jail who really aren’t much of a threat to society outside of it.

Because, as America’s founders would agree, any society where most people are effectively denied a speedy jury trial cannot be considered a just society.

I don’t want Canada to walk any further down that road.

And I hope America looks where it has gone, and turns around.

Each step upon a road changes you, and this road has changed America in ways that have nothing to do with justice and which walk it further and further away from the America the founders envisioned.

Ian Welsh

Ian Welsh

Ian Welsh was the Managing Editor of FireDogLake and the Agonist. His work has also appeared at Huffington Post, Alternet, and Truthout, as well as the now defunct Blogging of the President (BOPNews). In Canada his work has appeared in Pogge.ca and BlogsCanada. He is also a social media strategy consultant and currently lives in Toronto.

His homeblog is at http://www.ianwelsh.net/