Monday, August 25, 2014

Politics, Efficiency, and Justice

   Through the mechanisms of the jury trial and popularly elected district attorneys and legislatures, our system of criminal justice is supposedly responsive to popular opinion. Yet this sensitivity to politics at times threatens the system's basic conceptions of due process. For example, the failure of state and federal government to adequately fund indigent defense services undermines the implicit assumption in our system that a battle between equal parties will produce the truth. Public support for "tough on crime" policies helped to fuel the nation's massive over-incarceration problem.

   Although our nation's system of immigration courts is largely separate from our criminal justice system, some of the same inequities which run rampant in our criminal justice system have recently come to light in rural detention centers. Just last week, the ACLU, the National Lawyers Guild, the National Immigration Law Center, and the American Immigration Center filed suit in federal court alleging that immigration authorities in Artesia, New Mexico were engaging in a set of behaviors designed to compromise the due process rights of ten women and children by making it difficult for the individuals to file for asylum.

Some politicians including the current governor of Texas, seem eager to equate rapid deportation with "enforcing the law."  Those who seek to use the law instrumentally as a tool of the state without regard for procedural guarantees risk reducing the law to a mere tool of the powerful. One wonders, how Mr. Perry would respond, if he was immediately jailed and tried on the charges in his recent indictment. Increasingly, the only individuals who get their day in court in this country are the ones who possess the power and means to enforce their rights. Perhaps, Mr. Holder, who recently created hope for the disempowered in Ferguson, Missouri might make Artesia, New Mexico his next stop.

References:

Julia Preston, "U.S. Faces Suit Over Tactics at Immigrant Detention Center," NEW YORK TIMES, August 22, 2014.

http://lawprofessors.typepad.com/comparative_law/2014/08/politics-efficiency-and-justice.html

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