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How the Rule of Law Falls Short for Too Many Americans

We need to focus on the need to address the inequalities in our criminal justice system, especially as they impact people of color and the poor.

A cell in the medical observation unit at the Fulton County jail
A cell in the medical observation unit at the Fulton County jail in Atlanta. An inmate who in the unit, which monitors detainees with acute mental issues, died in 2022, one of 23 inmate deaths at the jail over four years. (Natrice Miller/Atlanta Journal-Constitution/TNS)
Most legal experts believe that Donald Trump received a fair trial when he was convicted of 34 felonies in a New York state court. This doesn’t, however, mean that our criminal justice system treats all defendants equally or fairly. Those who proclaim their support for the rule of law would be ill advised to read too much into the former president’s 34 convictions, or Hunter Biden's conviction Tuesday on gun charges. Our criminal justice system is broken in many places. Those who truly care about the rule of law must demand that we fix it.

The main problem with the rule of law is that it is inconsistently applied, especially for people of color and the poor. The civil rights movement fueled improvements to some laws and practices like the “separate but equal” doctrine, overturned by the Supreme Court in 1954 in the landmark Brown v. Board of Education decision. But today’s conservative-dominated Supreme Court, bolstered by three justices appointed by Trump, is rolling back many of those gains. From the initial behavior of the police to unfair trials to unequal sentencing by judges to the inequitable treatment of the incarcerated, there continue to be too many cases involving unequal application of the law.

Much research points this out, and I have written extensively here about the many problems within the criminal justice system, including a column addressing how the warrior mentality in policing often results in deadly encounters between the police and Black and brown civilians, and a commentary challenging public officials to do something about the thousands of killings by police in the years after the death of George Floyd.

On a personal note, I wrote about how the justice system had failed my brother Jeff, calling for the transformation of sentencing guidelines because too many minority youth are sent to prison for minor crimes and too often are never able to return to society as functioning and contributing individuals. I also reminded readers that African American men are on death row at a far higher proportion than their numbers in society.

The Prison Policy Initiative (PPI), a nonpartisan organization founded 23 years ago to assess the effects of mass incarceration on society, points out a related problem: the number of citizens who have not been convicted of a crime but are being held in local jails because they can’t get or afford bail and are often pressured to plead guilty to avoid more jail time.

“The criminal legal system punishes poverty,” the organization notes in a recent report, “beginning with the high price of money bail.”

Today, according to the PPI report, people of color, who account for 34 percent of the nation’s population, constitute 65 percent of the populations of prisons and jails. African Americans, who comprise 14 percent of the national population, make up 42 percent of the incarcerated.
Chart of racial and ethnic disparities in prisons and jails
Statistics such as these suggest that Trump’s convictions will have a limited impact on local, state and national elections. The more those who celebrate the rule of law crow about the fairness and uniqueness of the U.S. criminal justice system, the more citizens who are caught up in that unfair system want to know why public officials can’t fix the most obvious problems.

They can start out by lowering the cost of bail and requiring it only for the most serious and violent crimes. They can improve the quality of our local jails so defendants who don’t get bail don’t end up dead because of the horrific conditions of so many of those facilities. In the four years leading up to Trump turning himself in at the Fulton County jail in Atlanta on charges of trying to overturn the 2020 election, 23 detainees died in the jail, including a 35-year-old defendant held in a bedbug-infested cell in the psychiatric wing.

They can also allocate more funding to improve the quality of public defenders and reduce their caseloads. And they can invest more resources in restorative justice and conflict resolution programs. These programs should start in elementary school, so our youth won’t grow into adults believing that the only way to resolve differences is through the use of a weapon.

I’m glad our former president was held accountable for the crimes a jury of his peers believed he committed. But I will not join the chorus of voices praising our criminal justice system or pontificating about the principles of the rule of law until I see them more equitably applied to all. Blacks and other minorities for far too long have experienced a different type of justice reserved for “just us,” as the late comedian-genius Richard Pryor put it so well. Public officials can and must do something to ensure that this is no longer the case.

Governing’s opinion columns reflect the views of their authors and not necessarily those of Governing’s editors or management.
Government and education columnist
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