Has President Castro struck a nerve?
by J. Soffiyah Elijah; June 03, 2005
In April 2005 the international community began to take a closer look at the
United States justice system as its government attempted to explain and or
deny the presence of admitted terrorist, Luis Posada Carriles. As news
stories sprouted from even the more main stream media such as the New York
Times, the Washington Post and the Los Angeles Times calling for the
extradition of Posada to Venezuela, a country with which the U.S. has had a
long standing extradition treaty, Washington went into a frenzy. After some
false starts concerning what it was going to do about Posada, Washington
"defended" its position by hurling barbs at Cuban President Fidel Castro
about the political asylum granted to Assata Shakur by the Cuban government.
Rightly so, President Castro retorted that Ms. Shakur had not received
justice in the United States and that she, like many other political
prisoners, had been persecuted and denied a fair trial.
By aiming the spotlight on the criminal justice system in the United States,
President Castro exposed a tender nerve for Washington. My more than 20
years as a criminal defense lawyer and professor of criminal defense
advocacy confirm the widely known assessment that every aspect of the
criminal justice system is ripe for criticism and laden with hypocrisy.
The United States incarcerates more people per capita than any other
developed nation on earth. The population of the United States comprises 5%
of the world's population but its incarcerated population is equal to more
than 25% of the world's prisoners.
According to the Bureau of Justice Statistics, based on current rates of
first incarceration, an estimated 32% of Black males will enter State or
Federal prison during their lifetime, compared to 17% of Hispanic males and
5.9% of white males. In other words, one third of Black men can expect to be
incarcerated during their life times if they live in the United States.
Incarceration in the United States is a growing industry. In 2001, an
estimated 2.7% of adults in the U.S. had served time in prison, up from 1.8%
in 1991 and 1.3% in 1974. The BJS reports that as of December 31, 2001,
there were an estimated 5.6 million adults who had ever served time in State
or Federal prison, including 4.3 million former prisoners and 1.3 million
adults in prison.
At every stage of the criminal justice system in the United States, Blacks,
Latinos, Chicanos and other people of color and the poor are
disproportionately impacted. Decisions by law enforcement personnel
concerning who to stop, who to arrest and how to charge, are all infused
with racial bias. Decisions regarding indictments, plea offers and requests
for enhanced sentences and the death penalty, are similarly guided by
considerations of race and class. Sentencing decisions regarding probation
and incarceration reflect the same racial overtones as the earlier stages of
the system. The racist practices of prosecutors was so prevalent that in
1986 the United States Supreme Court finally outlawed the practice of
routinely removing Blacks from the jury in Batson v. Kentucky (476 U.S. 79).
Prior to 1986, the courts routinely ignored the practice. Following Batson,
prosecutors simply offered pre-textual reasons for their racist challenges
to potential jurors and the courts turned a blind eye.
Prisoners in the U.S. are systematically incarcerated hundreds, and in many
instances thousands, of miles away from their families and loved ones.
Family contact is discouraged and thwarted. Frequently family members travel
hundreds of miles to visit their loved one and they are denied entry on
minor technicalities.
U.S. prison officials regularly create obstacles when attorneys seek to
visit their clients. Memos authorizing the visit mysteriously disappear on
the day the attorney arrives for the visit. Use of private attorney-client
conference rooms is denied. Visits are inexplicably cut short and routinely
monitored by video camera and roaming guards.
Similar tactics are often employed against political defendants during
pretrial proceedings. The cases of both Assata Shakur and the Cuban 5 are
reflective of the unconstitutional obstacles created to interfere in trial
preparation. Ms. Shakur's lawyer, Evelyn Williams, Esq. had to obtain a
court order to get access to her client. Lawyers for the Cuban 5 were
limited to brief designated time periods when they were allowed to meet with
their clients prior to trial.
Such interferences compromise the ability of the defendants and their
counsel to develop trial strategy, prepare testimony and make crucial
decisions about witnesses and evidence. In the case of the Cuban 5,
independent polls showed that it would be impossible for them to get a fair
trial in Miami. Despite this objective evidence, the judge denied the
defendants' motion for a change of venue, even to Fort Lauderdale, just 30
miles away. Assata Shakur's requests for a change of venue were initially
denied and then finally granted with a move to Morris County, one of the
richest and most conservative overwhelmingly white counties in the state of
New Jersey. Further, the hysterical pretrial publicity assisted in creating
an atmosphere that guaranteed the defendants would not get a fair trial.
During the last month President Fidel Castro has delivered a calculated
series of public addresses that have been heard around the world, including
the United States. The arduous campaign to obtain justice for the Cuban 5
and to expose the hypocrisy of the criminal justice system has been the
backdrop to these presentations.
President Castro's exposé of the system rings so very true to the millions
of Americans who have been incarcerated in the United States and the more
than 100 political prisoners who are currently held in its prisons. And the
millions that have had their lives interrupted by the criminal "justice"
system, they know that fairness is usually an illusion discussed widely in
classrooms but not mentioned in courtrooms. They know it's unjust. Castro's
pronouncements bear witness to the fact that "justice" in the United States,
isn't justice at all.
By J. Soffiyah Elijah, Deputy Director Criminal Justice Institute, Harvard
Law School.
www.zmag.org/content/showarticle.cfm?SectionID=43&ItemID=7998