I think I will attack this one backwards and hopefully make some sense of the issue.
Our American system of justice is the product of a number of traditions for Europe. The jury decides ala Puritan England, a trio of judges ala Roman style. Lawyers are a knock-off of the Western European model, and finally the ideal of due process is French and English enlightened thinkers. So the question of ‘does it work?’
Well, works better than most but often does not make sense to educated people. The problem is two-fold. First, we must realize our forefathers were criminals under British law before the revolution became one of shooting instead of shouting. They smuggled goods past British customs agents and hid caches of weapons and powder. Therefore, we have a system that goes to great lengths to protect the ‘rights’ of one accused of crime. Some would argue we treat criminals better than victims. Second, our system has bred a new life form called the litigator. Now, this creature spends years in Law Schools to learn witty Latin phrases, the foundations and applications of law, and finally they take a test that is the golden gate into a pretty exclusive club. Both of the afore mentioned issues muddy the waters of law sufficiently that only criminals and litigators who use the system frequently understand its ins and outs.
Solution? Well keep in mind the word justice means ‘administration of the law.’ To properly administer the law you must have those who enforce it, those who break it, and those who punish the guilty. Where do our forefathers fit in this? Well, you are not going to create laws that make it easier to punish you for smuggling and theft. So we have due process under the Bill of Rights. Second tough question where do litigators fit in all of this? Well, the reality is they do not. Why have a lawyer? They seem necessary to cross-examine criminals and victims to find the ‘truth’ and they make impassioned speeches in closing arguments right? Well yes, on television dramas. Most of a litigator’s time is spent in meetings. Actually less time is spent in court that many realize. The key being avoiding court if at all possible. Therefore, we have plea bargains which works for everyone but the victim. I have never understood this practice which circumvents justice in favor of expediency. And do the victim’s have some say in whether or not a criminal can plea to a lesser offense? Another litigator created ideal is that of continuances, extensions, and motions phases that seem intent on buying more time for criminals to build a credible defense. Now the one area I find most intriguing in our justice system is the writing. Ever read a state’s statute on something like murder. It reads like a mixture of Shakespeare and Spock (the Vulcan not the baby doctor). Does it say murder is illegal? Well sort of. Problem is litigators have written law and now only litigators understand it. Why is that? Beats me except that Americans were dumb enough to take some pretty simple laws and rules and let professional litigators change and modify them like Pharisees. History taught the nation of Israel fairly well about letting ‘experts’ manage and modify law. God gave them 10 laws they let ‘experts’ turn them into 738 rules and laws that muddied the waters so much so that a new class of Rabbi was created just to interpret and explain the law. Simple solution, write laws that a 5th grader can understand what it is making illegal and what the punishment is if found guilty.
Victims are the ones shortchanged by the American system since there a few laws on the books that protect their privacy and reputation. Rape victims will usually lose if they agreed to enter the home of their attacker. If they were dressed provocatively or if the litigator can get her branded a slut. This is a perfect illustration of how the system thanks to litigators who muddy the waters with myriad rules and laws concerning rape. Fact is Rape is when one person forces themselves on another in a sexual manner against the will of the victim. To create more verbiage is a means to keep litigators in business. The simple fact is victims have fewer rights than those who victimized them. And if that is the case then our system is in need of a serious overhaul. Justice does not exist to protect its violators it exist to prevent people from becoming victims of those who break the law.
Prisons, DeCartes said it best, ‘It is not the punishment that deters crime, it is the surety of it.’ Again, thanks to litigators and criminals our prison system has become an education system for the training of smarter, meaner, and more profitable criminals. Ask a kid fresh from juvenile detention what they learned, the answers will surprise you. Look at those on death row for their 15 to 20 year stay and ask them about their careers. It will shock you the number of arrests and probation’s. When a person commits murder most of the time it is their 5th to 7th felony committed. Not total mind only those that they have been arrested for. Prisons suffer from the debate between the punisher’s and the reformers. Punisher’s want the person to suffer for their crime while reformers think prison can make a criminal see the light and disavow criminal ways. Well, decide for yourself which group is right.
Okay its time to shut up, so I will say this. If things worked as intended you would have police, judges, prison guards, and victim advocacy. You would not see litigators, repeat offenders, and politicians (litigator turned policy-maker). Why can’t a criminal and victim face off in court without counsel? Why can’t the jury ask questions of both? Why can’t judges question both? Why can’t laws make sense to common people who must live within their bounds? Why do we have litigators turned policy-makers running our government? Know what happens when a Congressman bounces a check? What happened when one was busted for being a pedophile? Isn’t the ideal behind our justice system one that states ‘all are equal under the law?’ Answer these questions for yourself and then decide.