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June 8, 2020

"America’s Criminal Justice System Is Rotten to the Core"

The sharp title of this post is the sharp title of this new commentary authored by Clark Neily at Cato.  Here is how it gets started:

Before you can fairly assess the legitimacy of the ongoing protests or the quality of the government’s response, you must understand the relevant facts.  And the most relevant fact is that America’s criminal justice system is rotten to its core.  Though that certainly does not justify the violence and wanton destruction of property perpetrated by far too many protesters, it does provide useful context for comprehending the intensity of their anger and the fecklessness of the government’s response.  If America is burning, it is fair to say that America’s criminal justice system — which is itself a raging dumpster fire of injustice — lit the fuse.

I feel moved to write these words because it appears from some of the commentary I’ve been reading — including even from libertarian circles — that many people who consider themselves to be generally skeptical of government and supportive of individual rights have no idea just how fundamentally broken our criminal justice system is and how wildly antithetical it has become to our core constitutional values.

Within days or weeks, most protesters will renounce the use of lawless violence as a tool of politics; but the state will not.  That’s the key takeaway and the thing you really need to understand about this moment in time.

As I will explain below, I see three fundamental pathologies in America’s criminal justice system that completely undermine its moral and political legitimacy and render it a menace to the very concept of constitutionally limited government.  Those three pathologies are: (1) unconstitutional overcriminalization; (2) point‐​and‐​convict adjudication; and (3) near‐​zero accountability for police and prosecutors.

June 8, 2020 at 01:20 PM | Permalink


I hope the unrest in Minneapolis and other locales over the rot of the criminal justice system will also extend to the civil commitment laws that keep many ex-convicts, particularly former sex offenders, locked up beyond their original sentence. It will be a great day when places like Moose Lake Civil Commitment center see massive radicalization and politicalization among their "reaidents" (actually detainees). They would have nothing to lose by doing what low-income and minority residents in Minneapolis did or what inmates at Attica did almost fifty years ago. I'm surprised that political radicalism has been slow in coming to the civil commitment centers all over the nation.

Posted by: William Delzell | Jun 9, 2020 9:05:25 AM

Thank god for Clark Neily

Posted by: beth curtis | Jun 9, 2020 3:25:14 PM

AEDPA, Qualified Immunity, strict limits on Bivens remedies, and almost total deference to prison administrators and administratio also need to be addressed. Repeal the first two, codify Bivens into law as guaranteed for all Federal Constitutional violations, and enact some broad based federal bill of rights for federal jails and prisons, and a Spending Clause analogue for State and Local jails and prisons, to make sure that legitimate complaints are not adjudicated by the same folks who abuse their positions. There should always be a third party not beholden to the police or prison administration to adjudicate infractions and complaints about harsh conditions, with no deference given to presume good faith or expertise on the part of the government or its agents.

Furthermore, ban dehumanizing practices long tolerated by the courts in the interest of promoting officer safety uber alles. Automatic handcuffing of virtually all arrestees is barbaric and is banned in India. Likewise for routine strip searches of arrestees. There is no excuse to condone rampant dehumanizing of the populace even if it will save a certain number of officers lives every year. Police pay should be raised, not cut, and all those sworn to protect us should understand that part and parcel of their job (that comes with higher pay and more respect) is the assumption of slightly added risks of death, injury, or financial ruin that come with restrictions on dehumanizing practices and qualified immunity. Solitary confinement should follow the same restrictions imposed in the Colorado system.

Posted by: Poirot | Jun 9, 2020 3:49:52 PM

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