Skip to main content

Editorial: Justice Unhinged

Submitted by David Borden on (Issue #531)
Drug War Issues
Politics & Advocacy

David Borden, Executive Director

David Borden
One of the basic elements of the US system of justice, a founding principle in fact, is that of the trial by a jury of one's peers. The jury is seen as a safeguard against tyranny, and has also been a matter of pride representing the strength and quality of our democracy.

No kangaroo courts, we say, no railroading by the system, and above all justice based on facts. If just one of the 12 jurors on a case feels that guilt has not been proven beyond a reasonable doubt, that juror should vote not guilty and then a conviction shall not be obtained -- another trial can be held, if the government thinks it's worth it, but a conviction is not obtained that time. If they all vote not guilty, then not guilty is the verdict, and the matter ends.

It is hoped thereby that the innocent will be protected from the overwhelming power of the state. Because another one of our founding principles is that it is better to let many guilty persons go free rather than convict and even incarcerate one innocent.

Unfortunately, while for many defendants in the courts those principles are still the law, for others they merely describe what once was. The wrench that unhinged justice was the "war on drugs." Within the '80s drug war, perversions were wrought that allowed those whose guilt was unproven to be punished, and in fact those who were acquitted of charges brought against them to also be punished.

One such perversion was civil asset forfeiture. In that corrupt practice, a charge is leveled not at a person, but at a piece of property. If the property is found to have been used in the commission of a drug crime (and some other kinds of crimes), it is "guilty," and the government can take it whether the owner knew about the lawbreaking or not. Some restrictions have been placed on this practice by states and even the feds from time to time, but they have been largely ineffective. The result of forfeiture is the disgusting spectacle of government agents stealing from members of the public -- the thefts ranging from dollars and cents on the street up to cars or even homes and retirement savings -- with the profits going to law enforcement agencies where they are spent on various purposes, many questionable.

An even greater perversion is what has happened to federal sentencing. Once upon a time, a conviction by a jury was needed to send a person to prison. That is still the case, if a defendant happens to be acquitted of all charges. But get convicted of just one charge that has been brought against you, if charges are brought together, and now you can be sentenced based on the others, even if there is no verdict or even if you were acquitted of them. In fact it's not even strictly necessary for the charges to be brought at all.

Though the Supreme Court has rendered some decisions in recent years to restrict this practice in certain cases, in others it is apparently wide open. In 2005, Mark Hurn was prosecuted in federal court in Wisconsin for possession of powder cocaine, and a larger amount of crack cocaine, was convicted of the former but acquitted of the latter. Federal guidelines specified about three years for the charge that was the subject of the conviction -- itself a grave injustice. But the prosecutor argued to the judge that Hurn was probably guilty of the crack charges too, the judge bought it, and hiked the sentence up to 18 years instead.

Late last month, the Supreme Court declined to hear Hurn's case. And so Hurn is stuck with 18 years behind bars, but the vast majority of it for conduct of which he was exonerated. Who are the true criminals here? Not Mark Hurn, as far as I am concerned. Justice has been unhinged, courtesy of the drug warriors, the judiciary complicit. What fine service they have rendered to the nation.

Permission to Reprint: This content is licensed under a modified Creative Commons Attribution license. Content of a purely educational nature in Drug War Chronicle appear courtesy of DRCNet Foundation, unless otherwise noted.


Anonymous (not verified)

Judges have become nothing but black robed terrorists

Fri, 04/11/2008 - 11:59am Permalink
Anonymous (not verified)

Seems people only get as much justice as they can buy now days & even that is doubtful The feds ignore state laws California is an example of this They cops now search without warrants citeing so called " probable cause" & they get away with it. Justice? there is no real justice any more. The real criminals are still out on the streets or hold political office

Fri, 04/11/2008 - 12:45pm Permalink
Anonymous (not verified)

Mr Borden,

We, here, in the hinterlands of the www are aware of a lot of flaws in our system your typical cable/satellite TV viewer has opted to ignore. Frankly, that dimension of self-deluded "MSM thought" was once ours and we've left it behind. Not so a vast majority of our voters. The non-voters are another story.
Bottom line: try to get this type of editorial published in national syndicates or metro papers such as the San Diego Union, the LA or the NY Times where, at a minimum, those who vote get a chance to read dissenting points of view now and then in the "guest column" sections of influential dailies.

Fri, 04/11/2008 - 2:42pm Permalink
Anonymous (not verified)

I think that those who support the drug war are horrible people. All countries have some horrible people; but I believe that some countries have fewer horrible people than others. Spain, for example, allows the cultivation of marijuana in your own home for personal use. Post-Franco Spain seems to be an interesting place. When my cat dies I'm going to emigrate to a place where I think there are fewer horrible people.

Sat, 04/12/2008 - 2:43am Permalink
sicntired (not verified)

sicntired The guy with the major media thought was right on the money.I live in a city where there are two major papers with one owner.There are a few daily free papers but they print what appears in the major papers and one paper has printed nothing but letters about Tibet from our 51% Chinese population to the exclusion of all other news for weeks.Try to comment on a drug war travesty and you might as well yell out the window.I got a really good look at fair and balanced when a group of drug war advocates(yes,people actually think the drug war is a really good idea)held a meeting and the media was all over it with praise and all manner of good press.Their coverage of advocates for drug reform is slightly less than positive and usually takes a very negative tone.Until the reform movement can get some major media coverage that is really fair and balanced we will be stuck with what we have now.There's nothing like listening to some narc laughing at somebody as they tow their car away as property of the state to make your blood boil.This was happening with no charges having been laid and no contact with the home owner.They had seized a lot of pot plants but to take a corvette for a grow op is a bit steep.Until you've been on the wrong side of a drug raid you have no concept of the true horror of the situation.They dump every thing in the middle of the floor and pour all food and liquids all over everything and laugh about how long it'll take to clean it up.If they find drugs it only gets worse.Seizure laws in both of our countries are the reverse of normal justice in that you are assumed guilty until proved innocent.Not what our fathers bled and died in two world wars to achieve.

Sat, 04/12/2008 - 4:38am Permalink
Anonymous (not verified)

Most drug arrests are Victimless crimes. I thought in the U.S. we have the Constitiutional right to "Pursue Hapiness".
But if hapiness is found in a Baggie and not a Bottle them you are Criminal. You have no right to decide what goes into your own lungs. Forget that alcohol and tobacco are deadly compared with Pot. It is scientific knowledge that Marijuana is safe and non-lethal even in large doses. None of that matters. Your body is not yours to decide what you should put in it period. If smoking a joint makes you Happy (and most people do have fun!) You have no right to pursue that happiness. Even if you are miserable your short time on this harsh Earth you have no right to relax and enjoy life for a few hours in the comfort of your own home. Big Government is spending Billions of your tax dollars every year to make sure no one gets away with excersising their own free will in the privacy of their own home. As the U.S. sees it, your lungs don't belong to you. Government Property. The U.S. will enforce any liberal use of your own lungs so make sure you ask before you even think of putting anything into your body prior to Gov. approval. In this Country we are not free to use pot or act in a way that causes no harm to anyone only yourself if you get caught. No victim and no crime but yet we have Millions of criminals. Free Country! No way! J. Velasco Brownsville Texas

Sun, 04/13/2008 - 4:00pm Permalink

Add new comment

The content of this field is kept private and will not be shown publicly.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.