NCFM NOTE: This is a provocative article about criminal justice in America. NCFM is nonpartisan. Our members lean left to right and right to left, often causing a strange type of motion sickness of ideas. We take pride in that and in our belief that conservative, liberal or anywhere in between, our members share these ideals in common — a commitment to fair and equitable treatment. So to does our good friend Charles Corry who has fought the good fight for decades and is committed to justice. This is our first experience with Charles’ co-author Traubel, but he too is welcome. We will suggest that he become a member of NCFM. Regardless of your political leanings, this extraordinary article pours light on many reasons so many men suffer the ill effects of ill-conceived politics. This is well worth the read whether you agree or disagree…
Social Versus Criminal Justice
By Doug Traubel and Charles E. Corry, Ph.D.
Introduction
From time immemorial societies have sought ways to regulate and control human behavior in a fair and just manner. It would appear the issues start out fairly simple, say a law stating: You shall not kill…except…and the “except” is why there is no consistent universal code of justice.
Given the inevitable exceptions to any code of conduct, two major methods of enforcing the mores and morals of a society have evolved that are contrasted here: social justice and criminal justice.
Social justice
Social justice may be expressed as the ability people have to realize their potential in the society where they live and, of necessity, it is subjective and qualitative. In exclusive societies, such as tribes and religious groups, social justice will often suffice. However, it is often based on emotions and feelings. Hearsay and rumor are accepted as evidence, fear and superstition are essential elements, and generally there are few or no fixed standards.
Most commonly one finds social justice in the form of shunning to enforce an ideology or superstition, or excommunication used to enforce religious beliefs. It is also widespread during societal collapse and in extreme forms results in mob violence, vigilante action, lynching, or, notably during the French Revolution the use of such devices as the guillotine.
Criminal justice
In more complex and larger societies with diverse cultures, religions, and behaviors social justice is inadequate and dangerous. More quantitative and inflexible codes evolve, usually in the form of laws on which criminal justice is based. Effective enforcement of laws is based on well-defined, fixed, objective standards with impersonal incarceration, execution, or compensatory financial penalties.
While there are many variants in other cultures, to deter false allegations and provide for a fair hearing of complaints, a number of standard procedures have evolved under English law. These include due process, a right to counsel, trial by a jury of one’s peers, an assumption that the accused is innocent until proven guilty, a burden on the State to prove to a jury beyond a reasonable doubt that the accused acted knowingly, recklessly, or was criminally negligent (mens rea), and that the crime was deliberately committed (actus reus), i.e., it was not self defense, an accident, done involuntarily such as a reflex or convulsion, or while the accused was unconscious or asleep.
Ideally, under the rule of law the code is simple, readily understood, and unchanging. Unfortunately, self-serving politicians and lawyers are never content to let well enough alone. So in complex societies the corpus of laws grows beyond comprehension and changes with the winds of politics.
Part 1 — Power and control
The basic objective and use of both social and criminal justice has always been control. Unfortunately, they also lend themselves to the assumption of power by the unscrupulous.
Social justice as used today is a Marxist construct. There is neither “justice” nor “injustice” in their lexicon, only emotions and feelings of what is “right” and what is “wrong” in the situational ethics of the moment. Tied to the false narrative of neo-Marxist ideology the aim is to redistribute wealth and power by creating the victim mindset of entitlement among one segment of the population and the yielding force of guilt and fear in the others. Guilt makes people passive and even complicit to being dispossessed, a primary goal of Marxist revolutionaries. And it matters not to today’s Marxists whether the class enemies of the moment are kulaks, white farmers in Africa, black preachers, Muslims, affluent whites, the intelligentsia, or any other group against whom fear and resentment can be instilled in order to justify the need for social justice to rectify the perceived imbalance.
But what of those who dissent? Dissenters must be intimidated, silenced, discredited. We are living in the era of the New Inquisition. Dissenters (heretics) run from the Grand Inquisitors who sling such labels as “racist,” “bigot,” or “batterer.”
The neo-Marxist patent on the use of these labels is brilliant. For instance the terms racist and racism are used as a sword and a shield. Criticize President Obama: You are a racist. Advocate deportation of illegal aliens: You are a racist. Use the accurate and legal descriptor “illegal alien” instead of the Left’s substitute, “undocumented immigrant”: You are a racist. Support voter ID laws: You are a racist. Support English as the official language: You are a racist. Oppose Affirmative Action: You are a racist. Support equal rights for men: You are a “wife beater” and woman hater. Oppose homosexual marriage: You are a “bigot.” And the list goes on.
Political correctness and social justice replace independent thought today. Followers scratch their heads at black members of the much-maligned Tea Party and conservative Liberty movement. What can these presumptively downtrodden black people possibly have in kind with the majority-white “Tea Baggers?” They cannot, or will not comprehend the kindred spirit found in reason, rational thought, and traditional values that are so inviting to black conservatives and transcend the Left’s obsession with racial division. The architects of the false social justice narrative cannot tolerate black conservatives because their message could cause an uprising of truth on what Star Parker calls Uncle Sam’s Plantation. This is why the Left dodges debate. They keep to their talking points and ad hominem attacks — using disparaging labels to describe black conservatives like Allen West, Walter Williams, Alan Keyes, Ward Connerly, and many others.
Criminal prosecution is being overrun by politically-driven social justice, the media’s relentless propaganda, and the Left’s control of the language. These are powerful and effective forces of social engineering. In addition, there is revisionist history taught in public schools. For example, it appears “history” books are being scrubbed of any mention of the internment of Italians and Germans in the United States during WWII. Without fail, however, they contain the Japanese experience. Answer for yourself why only one third of the internment story is taught. It is also of note to remember that, while rarely mentioned, black-on-black slavery is still common in Africa 150+ years after being outlawed in Western cultures that are largely white.
The compound effect of all of this places a defendant’s life in the hands of a compromised criminal justice system and an indoctrinated public that processes events through the prism of social justice.
Social justice in the courts
Article III, Section 2 of the Constitution specifies that: “The trial of all crimes, except in cases of impeachment, shall be by jury…” State constitutions have similar language.
In the United States the legislative branch passes the laws that define what is criminal, the executive branch enforces and prosecutes those laws, and the judicial branch decides whether the laws are constitutional and valid, and sets the punishment for convicted offenders.
In effect the courts are the social conscience of the government.
But social conscience often strays over into social justice. Judges are human and too many of them suffer from “black robe disease” and become convinced of their own infallibility. As a result the punishments they mete out often bear little relationship to the crime.
In general this has led to an extreme number of imprisonments for extended periods. This problem is directly associated with the disastrous War on Drugs. Between 2001 and 2010 8.2 million people, primarily black and typically for simple possession of marijuana, were arrested on drug offenses according to the ACLU.
With the onset of the War on Drugs in 1972 prison populations increased exponentially. By year-end 2011 some 2.7 million adults, almost 1% of the entire population of the United States, were incarcerated in federal, state, and county prisons and jails. Overall, about 7 million people were under judicial sentences in jail, prison, or on probation or parole in 2011, nearly 3% of the adult population, a rate far outstripping even the most tyrannical regimes in the rest of the world.
Historically, it was clearly recognized that banning the manufacture, storage, transportation and sale of alcohol and alcoholic beverages required a constitutional amendment. Even after passage of the 18th Amendment in 1920 exceptions were made for medicinal and religious uses. And alcohol consumption or private possession was never illegal under federal law.
As with all prohibitions enacted under the ruse of social justice, alcohol prohibition overwhelmed the police, courts, and prisons with new cases; organized crime increased in power, and corruption extended among both law enforcement and other public officials.
However, given the failure of the 18th Amendment, and its rapid and unique repeal by passage of the 21st Amendment just 13 years later, there was no attempt made to obtain constitutional authority for the even-more draconian legislation underlying the War on Drugs. No doubt the chance of passage for a Constitutional Amendment for any new prohibition would have been near zero, unquestionably a consideration for those to whom social justice is more important than any legal nuance, and who believe that their power and control is more important than freedom.
Given that the Constitution is a limiting document, not an enabling one, there is no underlying authority for federal legislation such as the War on Drugs. This is, instead, a matter for the respective states to address.
Jurists in federal cases have thus been remiss, if not criminal in sentencing millions to penal servitude for petty crimes such as marijuana possession, one of the most innocuous drugs known to man. As a social conscience intended to stand between and deny the excesses of the legislature and executive it is painfully obvious that that the courts have been both racist and criminally negligent in their failure to put the rights of man under the Constitution in front of prohibitions promoted by social justice. Even more devastating to freedom is the fact that the great majority of these sentences were handed down without benefit of a trial by jury for the defendant.
Faux convictions
With greater regularity social justice is replacing criminal justice. Ideological persecution is all too often replacing criminal prosecution under a rule of law, particularly on college campuses. Character assassination is now an active prosecutorial method rather than the difficult requirement of assembling and presenting unbiased facts and evidence to convince a jury of the defendant’s guilt beyond a reasonable doubt.
In part this is the result of the immense corpus of criminal laws now in existence. Silverglate and Desrhowitz (2011) point out that the average professional almost inevitably commits three federal felonies a day due to the explosion of federal laws. The situation is even more ludicrous when citizens face state, county, and municipal laws, rules, and regulations. It is literally impossible not to unknowingly violate many of them daily. Yet prosecutors and courts still hold to the adage that ignorance of the law is no excuse.
It is also literally impossible for law enforcement to uniformly and impartially enforce all these laws and regulations. Communities respond as best they are able and can afford by adding more and more police, jails, prosecutors, and judges with the result that the courts are swamped with often frivolous, unsubstantiated, and, commonly, cases involving false allegations by vengeful citizens seeking social justice in intimate relations.
For example, in 2010 Colorado courts had 36,993 felony and 69,695 misdemeanor cases with only 1,019 (28%) felony and 821 (12%) misdemeanor jury trials. The state population was 5,029,196, just a small fraction of the 308,747,716 U.S. population estimated by the 2010 census. Assuming rough equality among the states suggests over 2 million felonies and 4 million misdemeanors in the state courts. Federal courts saw ~170,000 cases of all types in 2010.
It is obvious that without a massive infusion of new facilities, prosecutors, and judges that most, if not all, federal and state courts are now conducting virtually all the criminal jury trials possible given the right to a speedy trial, usually within six months of being arraigned or charged, guaranteed by federal (Sixth Amendment) and state constitutions. That mandate is already being violated in many localities. As a result, in many cases, particularly misdemeanor domestic violence, a defendant who pleads Not Guilty and demands a jury trial is quite likely to have their case dismissed as there are simply far more cases than possible jury trials.
In an attempt to handle the now millions of criminal cases in the courts prosecutors have resulted to offering plea bargains if the offender pleads guilty to and is convicted of reduced charges with a deferred sentence that the prosecutor will falsely claim (lie) will be “sealed” and disappear from the offender’s record if the sentence is successfully completed and restitution, if appropriate, made.
However, it is basic to public safety that criminal records be publicly available.
It is dangerous in the extreme to have someone plead guilty to a felony or high-level misdemeanor and then hide, or attempt to hide that conviction from the public! Yet that is exactly what these faux convictions attempt to do. Fortunately, with modern databases it has become nearly impossible to hide criminal records.
Conversely, it would be virtually impossible in many cases for prosecutors to get plea bargain convictions without lying about the defendant’s criminal history being “sealed” after their sentence has been served. But should public safety, the basic objective of a justice system, be sacrificed solely so prosecutors can lie that they are tough on crime?
These lies are known to have destroyed many lives of those who thought there was an easy and cheap way out of a criminal charge. Almost daily we hear from men and women who accepted a deferred sentence and then years later were turned down for a security clearance, a job, a professional license, financial bond, housing, etc. because they had accepted a plea bargain faux conviction with a deferred sentence.
One notable example is the story of Idaho State Representative Mark Patterson who, after being falsely accused of rape, accepted a deferred-sentence conviction by pleading guilty to “assault with intent to commit rape” in 1974 in Florida. He later moved to Idaho and established a family and reputation sufficient to get him elected to the state legislature. However, in 2013 political enemies digging into his background found the supposedly “sealed” record of his conviction and drove him from office.
Such faux convictions may serve the immediate interest of social justice and allow courts and prosecutors to deflect the overwhelming burden of existing laws with limited resources. But they are a clear and present danger to public safety.
It seems obvious that the records of convicted felons must not be hidden in any fashion from public view if the mission of public safety charged to the justice system is to be served. And it is not sufficient to have such faux convictions officially preserved only in such databases as the FBI’s National Crime Information Center (NCIC), which is not publicly accessible.
While one might debate the merits of a judge’s sentence, criminals are either guilty or not guilty; there is no in between if justice and public safety are to be obtained.
Social justice in the media
Throughout the western world the State is criminalizing dissent and free speech is increasingly endangered. While U.S. courts are indeed compromised by social justice, for the most part it is the media-fueled court of public opinion that gets its pound of flesh by shunning heretics, i.e., anyone who dares oppose their dogma.
Media propaganda, using the methods developed by Edward Bernays, convinces much of the public to accept a substitute for reality. Feeding the public heavy doses of the social justice narrative translates to public pressure put on legislators, jurors, judges, prosecutors, and police administrators. Censorship, under-reporting actual crime, and substitution and intense focus on sensationalized, lesser stories and non-stories, results in a near “media blackout” of the prolific black-on-black, black-on-white, and female-on-male crime in America today. The social justice narrative simply does not hold up to the facts of who is doing what to whom.
Consider the following sobering example of selective outrage on part of the media and criminal justice system. Department of Justice (DOJ) data on interracial rape shows that in just one year (2005), black males raped 37,460 white women. That same year white men raped zero black women. Virtually the same statistics were reported in 2003 and 2004.
The issue is not whether these government statistics are accurate. The issue is the absence of media coverage and absence of DOJ concern. Taking these federal statistics at face value (granted, a dangerous proposition), if the race of offender and victim were reversed it would have been the lead story in every media outlet in the nation. DOJ task forces would be formed and federal prosecutors would be looking over the shoulders of county jurisdictions, even prosecuting federally.
Not only is there silence on these rape statistics but the same holds for other interracial crime patterns that, if brought to light, would debunk the narrative. In the name of “social justice” do these white victims have it coming? Where are the otherwise limitless resources of the DOJ? Where is the media coverage? Where is the National Organization of Women (NOW)? Where are those paragons of virtue: Holder, Jackson, Sharpton, Rangel and most of all on the topic of rape — where are Carol Moseley Braun, Maxine Waters, and Oprah?
In addition to the suppression of truth and selective outrage we have a meddler-in-chief who injects himself in local issues he has no constitutional business or authority to intervene on. Recall the Cambridge University incident where President Obama said the police acted “stupidly” and more recently saying if he had a son he would look like Trayvon Martin. The stature of the Office of President and the Attorney General are fully engaged in promoting the false values of social justice and punishing their political rivals rather than defending truth and the rule of law.
Recall the Internal Revenue Service targeting the Tea Party and, more recently, the DOJ going after Dinesh D’Souza — the director of the documentary 2016: Obama’s America for allegedly making an excessive campaign contribution. Meanwhile, Attorney General Eric Holder was blind to the knockout game (AKA “polar bear hunting”) until the offender/victim roles were reversed in one incident where a white man attacked a black male. The scales then fell off of AG Holder’s eyes and the offender was swiftly charged federally with (drum roll please) — a “hate crime.” We are watching political theater, not criminal justice.
From the Oval Office to elementary schools the Left conditions us to replace reason with emotion and fact with feelings. They stoke the flames of class envy, racial strife, and a war between men and women by using lies, revisionist history, high-tech faux news propaganda, selective outrage, suppression of truth, and inflammatory rhetoric. They divide.
In spite of our warts, this is the greatest nation in the history of the world. Nowhere is there the social mobility for every kind of person as there has been in the United States. Regardless, neo-Marxists and their attendant “useful idiots” in the media and population at large at every level push class hatred, casting everyone into the roles of victims and suspect to fuel revolution. They have moved far beyond demanding equal rights. Now they demand equal results: a forced redistribution in the name of social justice. Such below-the-radar Marxists work to disarm the opposition by diluting public discourse through intimidation and fear. They characterize defenders of tradition and truth as racist, bigot, sexist, rapist, batterer, or a whole raft of other pejorative terms they have defined as politically incorrect and on the wrong side of their definition of social justice under the fast-evolving new regime.
Part 2 – Crime and Punishment (to be continued)
About the authors
Doug Traubel
Doug is a twenty-seven year veteran peace officer. The first third of his career was spent as a police officer in Chula Vista, California located just seven miles north of the U.S. — Mexico border. His assignments included patrol officer, field training officer, SWAT team, and Street Team (a proactive patrol unit that targeted series-related crimes, gangs and other special enforcement projects).
Doug graduated from The San Diego County Sheriff’s Academy. On the first day of the academy he attended a lecture from Sheriff John Duffy on the history and unique authority of the Constitutional Office of Sheriff. It was then that he developed a reverence for the Office and an understanding of the necessary and substantive differences between Sheriffs and Chiefs of police.
Doug graduated from San Diego State University with a Bachelor of Arts degree in political science (emphasis on constitutional law) and a minor in the Spanish language.
In 1993 Doug was awarded the Medal of Valor for his actions related to engaging three armed subjects in an alley while on foot patrol with his partner in a high-crime, housing complex.
Disgusted with the infiltration of Marxist philosophy in the California criminal justice system and its near paralyzing impact on effective police work Doug moved to Idaho in 1994. The seed planted by Sheriff John Duffy determined his course; Doug became a Deputy Sheriff. His assignments included patrol, juvenile crimes detective (High School Resource Officer), and gang detective. In 1998 he was awarded the Field Services Director’s Award for his work with troubled youth. Doug still serves as a criminal investigator and plans to run for Sheriff of Elmore County Idaho in 2016.
Charles E. Corry
Charles Corry holds a doctorate in tectonophysics from Texas A&M and is a Fellow of the Geological Society of America. He is an internationally-known earth scientist whose biography has appeared in Who’s Who in the World, Who’s Who in America, Who’s Who in Science and Engineering, among others, for fifteen consecutive years.
After service with 1st Marines he became involved with the early space program in 1960, doing preflight testing and failure analysis on Atlas and Centaur missiles, including all the Project Mercury birds. In 1965 he switched to oceanography and did research at both Scripps Institution of Oceanography in San Diego and Woods Hole Oceanographic Institution on Cape Cod. He has also taught geophysics at university and worked as a research manager for a Fortune 500 company.
Presently Dr. Corry is president and founding director of the Equal Justice Foundation.
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Thank you for this thoughtful article. May I suggest one correction: you mention, ‘the Cambridge University incident where President Obama said the police acted “stupidly.”’ This incident took place in Cambridge, Massachusetts and involved a Harvard professor. Best wishes.