Are you guilty of overgeneralizing the guilted?

1,565 words

Wrongful convictions plague our criminal justice system, but so do over-prosecutions. Unless the judiciary helps solve problems by resolving the underlying needs, we dare not get complacent.

Othering for avoidance

“Othering” is the act of labeling others as belonging to a subordinate social category. While socially unacceptable to be othering people in open, the criminal justice system systemically does our othering for us. We even have a special othering place to segregate these undesirables from us, called prison.

“Prisoners deserve to be othered,” you can assure yourself, “because of what they’ve done to others.” Prisons are full of painful stuff we’d rather avoid, so they’re typically kept out of view.

It’s easy to believe everyone who lands in prison rightly belongs there. You’re free to believe anything, no matter how incorrect. After all, what consequence do you face if your belief is wrong?

Being wrong can be comforting. Such a tidy binary: nasty criminals on the inside, mostly decent people on the outside. But what if you’re unfortunate enough to be wrongly convicted, and must live among such “nasties” for years and years?

Beyond the binary

“I don’t belong here,” I protested after being wrongly convicted myself. “And you think we do?” was one of many reactions I heard. Mostly Black, these impromptu educators quickly illuminated for me the many unchecked nuances involved. Painful details, persisting beyond that tidy binary.

Thus began the education of Steph Turner. Like most phenomena in life, looking beyond a simple binary opens understanding of how reality tends to follow a continuum of possibilities.

Binaries keep it simple for our own convenience. That’s most inconvenient for those forced to serve our mental conveniences, as they are officially “othered” out of public view.

When taking a hard, honest view, a distribution emerges. Starting at the left, we can see those who did something that could have landed them in prison, but didn’t. At the other end we see just the opposite: those who landed in prison by no act of their own. Let’s look at all five of these subpopulations.

1. Error of impunity: when the guilty go free

A type-two error is when you say something isn’t true but it turns out it actually is. A jury can agree a defendant isn’t guilty of a certain crime, while in reality they actually are.

There are numerous reasons how a guilty person can go free. However, most of the guilty who go free are those who’ve never been apprehended. Once in the grip of the criminal justice system, it can be easier to convict the innocent than acquit the truly guilty.

2. Under-adjudication: law enforcement underreach

Charging a suspect less than they actually did also tends to be relatively rare. Once under custody for a lesser offense, law enforcement can buy time to catch the other stuff.

Sometimes that means the felon’s lack of character keeps them in custody longer. There’s also that problem of releasing a felon with a short sentence who everyone knows will be back. If you assume this is a great problem, just wait.

3. Adjudication alignment: assumed norm, but is it?

Consider how 95% of all cases settle by plea bargaining. Sometimes the defendant gets away with worse, and takes the deal as offered. Other times the defendant feels coerced into admitting more than they actually did, out of fear of being charged far more.

Often enough, there is a relative fit between the plea deal accepted and the actual misdeeds. Such defendants complain, if they complain at all, about the harshness of the sentence.

Unlike The Shawshank Redemption and what you may have heard elsewhere, most prisoners do not claim they’re innocent. Some are even proud of what they did. They could care less if you or the courts think they’re innocent or not. Doing time can even be a mark of honor among their peers.

When taking a plea deal, they can admit to doing the criminal act itself. They’re just slow to admit how harmful it actually was. That realization often comes later, after many months and years of reflection while in sobering custody.

4. Over-adjudication: law enforcement overreach

Since the 1980s, judicial power has shifted from judges to prosecutors. The legislature hamstrung judges’ discretion with mandatory minimum sentencing and the like, which lifted the impact prosecutors can have.

With such sentencing already set, prosecutors can literally scare a defendant into accepting a plea deal—even if that defendant only played a minor role in the offense. With an implicit promise they could be out in a few months, their first plea deal often sets the stage for a string of bargaining. The pattern of recidivism tends to be built into the way we conduct the business of law enforcement and defendant rights.

Using the Reid Technique, an investigator can suggest he has more evidence against you than he actually does. While it’s illegal to lie to the police, the police can legally lie to you, especially if strategic deception can help close a case.

Consider the many cases exonerated because an investigator coerced a false confession after hours of grueling interrogation. Consider at least twice that many—likely many more—who are coerced into admitting doing more than they actually did. Until the reality behind their misdeeds get duly and fully addressed, more misdeeds will likely follow.

Law enforcement is not quite an exact science, to put it nicely. Confirmation bias runs supreme. Tunnel vision—getting stuck on how you think the crime went and who did it—easily blinds you from seeing the full scope of what’s going on. For every case leading to a wrongful conviction, you can reasonably expect far more cases of over-prosecution. Few of these ever result in a positive ending.

5. Miscarriage of justice: wrongful convictions

If you haven’t caught the tone of this message yet, then I’ll spell out explicitly now. The criminal justice system skews toward type one errors—saying something is true when it is not.

What consequences do judges, prosecutors or law enforcement face when they are found to be completely wrong? Indeed, they get paid the same amount no matter how many innocent lives they wrongly convict.

After all, criminal justice is largely a statist institution with minimal accountabilities. Private sector entities and persons face far more costly consequences for similar mistakes. Not even the privatization of prisons pass along market-based checks and balances.

Whether the rate of wrongful convictions remain less than 1% of all convictions, or much higher, one wrongful conviction is one too many for the individual, family and community who suffers one. Moreover, the very legitimacy of judicial authority falls into question.

I could go over more of the problems—the problem of actual perpetrators allowed to commit more crimes when identifying the wrong person, the problem of the wrongly convicted afforded fewer rights than the admittedly guilty, the problem of exonerees not properly compensated—but those are all addressed elsewhere.

The problem identified and being expressed here is how to help the countless number of wrongful conviction claimants who have yet to be exonerated. Innocence projects receive far more requests than they can serve.

In some ways, these law projects replicate the binary structure of adversarial justice. If the claimant dares admit they did something even mildly illegal, their claim may get passed over. To receive help, they must be black-and-white innocent; no nuance allowed.

Critics of innocence projects make it a point to decry exonerees with prior criminal histories. Behind some of that critique you can find the ideologically reductive view of crime as poor moral choices—as if the person simply had the option to make a better choice. This view tends to posit law above need—the inverse for why Value Relating exists.

Justifism checked

We now have a word for this kind of apologist defense of judicial norms run amok: justifism. You can check how much justifism you present with this 20-item quiz. And there’s no email capture; it’s not a lead magnet but simply a tool for awareness.

We need greater awareness to transition from this low bar justice—relieving pain of the court battle winner—to high bar justice—responsibly resolving needs on all sides. That’s what the transjudicial service is about, transcending dysfunctional divisiveness of judicial categories.

Criminal justice scaffolds itself on a series of divisive binaries—familiar but arbitrary.

Guilt or innocence—overlooking the gray area between, overlooking the many needs involved.
Prosecution or defense—imposing an opposition where the “defendant” may prefer to be more conciliatory.
Criminal or victim—denying nuances essential to understanding and resolving the needs involved.

Let’s be honest. There is literally no “good guy” or “bad guy” dichotomy. It’s a provisional dichotomy essential to security professionals who must make quick life-or-death decisions. Once in custody, the subdued target presents as a human being with as many painful needs as anyone else.

When law enforcement sticks to its guns, per se, and impedes the deeper justice of resolving all impacted needs, it risks becoming the evil it fears in others. Once there, its legitimacy easily falls into question.

The conciliatory transjudicial approach offers a viable solution. First to help the wrongly convicted, but also to help address all the needs of all who become “justice involved.” After all, there’s more to justice than citing misdeeds. There can be no justice without resolving needs.