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Does U.S. have two systems of justice? We await an answer in attorney general’s Jan. 6 decision

How can America maintain a system which so breezily arrests, indicts, convicts and imprisons Black Americans at five times the rate it does white Americans, and still justify saying we have the rule of law if it fails to hold to account those entrusted with taking care of those laws?

The decision now facing Attorney General Merrick Garland is bigger than a political calculation.
The decision now facing Attorney General Merrick Garland is bigger than a political calculation.
Oliver Contreras/Pool via REUTERS

The nation’s op-ed columns are now bursting with equal parts of frustration and botheration from laypersons and lawyers alike as we await Department of Justice action regarding a failed coup on Jan. 6, 2021. We will see if that famous precept about American justice is more than just a mere precept: that no person in our nation is above the law. 

Those of us with practical experience getting our hands soiled in both the civil and criminal courts know that this precept is now verging upon a mere platonic ideal which bears little real resemblance to reality. 

Go visit your local state court arraignment or first appearance calendar and you will understand what I mean. Its precincts and holding cells will be filled with the poor and the Black and the Brown. Very few defendants are there dressed in sport coats and tasseled loafers. 

America now lives not only in two economic realities, but in two realities as to the real meaning of justice. The defendants who live in the everyday system of justice know it all too well. So do the lawyers and the judges. 

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But this reality is deeper and wider than what happens in the courtroom or even in the jail. It begins with police and prosecutors — it starts with how cases begin to see the light of day in our American system of law and order. 

In the state courts, where justice is often served up as fast as a McDonald’s hamburger — or so it was described by an eminent state judge on his way to federal district court — defendants might get to spend a whole hour with their lawyer before making hard decisions about pleading guilty or going to trial. 

These are the defendants the police meet every day on the street or during a domestic violence call or simply because they are too poor and Black, or in the wrong place at the worst possible time to avoid an arrest or worse. We know these prospective defendants’ names: Daunte Wright and George Floyd. And Philando Castile. 

There is very little of the stuff of debate on prosecution philosophy or constitutional analysis about whether these defendants will be incarcerated (once they get fingerprinted and booked), and even less debate about whether they will be charged with a crime.  

For most prosecutors, who receive routine sheaths of police reports from the poorest precincts in our nation, there is no real agonizing or Hamlet-like uncertainty about charging poor and Black people who fill our jails and prisons.  Indeed, failing to bring a case might bring recriminations — from their own investigators — the police. 

Too often their charging decisions are a matter of simply repeating the verbatim factual allegations from police investigators and then simply plugging in the statutory provisions which they most resemble. 

If that defendant is fortunate, she might draw one of several dedicated (and experienced) appointed lawyers or public defenders who (might) have enough time to challenge those allegations as legally deficient or factually insufficient; or who may locate a witness who will poke irreparable pretrial holes in a potential case for conviction — a conviction that most prosecutors just take for granted. 

It is also a conviction that the vast majority of judges likewise will see as a foregone conclusion — and sentence according to often inflexible mandatory minimum sentences. 

So the decision now facing the attorney general of the United States is really bigger than a political calculation. It is more than the legal debate about “charging a former president” we see being pulled back and forth like so much taffy. 

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Indeed, it is more than the question whether America will descend to “banana republic” status if we let the former president and his minions go free after witnessing their open and obvious labors to undo a democratic election in the world’s oldest living democracy. 

It is far more urgent than the question as to whether we will be able to look at America  in the mirror of history and still make the vaunted claim that no person is above the law. 

In my mind, the question faced by the attorney general is not only different but much more difficult: How can America maintain a system of justice which so breezily arrests, indicts, convicts and imprisons Black Americans at five times the rate it does white Americans, and still justify saying we have the rule of law if it fails to hold to account those entrusted with taking care of those laws? 

How can we say we live in a nation of laws when many of these everyday convictions are the product of ongoing police misconduct or evidence obtained without probable cause or in violation of the Constitution? 

The real question Merrick Garland faces is how can America uphold the motto “Equal Justice Under Law” when we know that police officers who too often falsify evidence against powerless defendants are then found to be effectively immune from any civil damages recourse? 

Albert Turner Goins
Albert Turner Goins
Garland, in making his decision whether to prosecute a failed but attempted coup (which Americans watched unfold on national television), must now ask himself how he can command any abiding respect for the rule of law in a nation that all too effortlessly arrests, charges and then incarcerates the poorest and most powerless of Americans and those of color, and yet now anxiously paces the floor with near infinite intellectual uncertainty about the propriety and plausibility of bringing a one-time president (and his cronies) to justice. 

This call is not a close one. 

But if Garland is still having trouble making the decision, I have this suggestion for him: Go on a field trip to any federal or state court arraignment calendar this week. The reason for your decision should be standing right before your very eyes. 

Albert Turner Goins is a lawyer who lives in White Bear Lake.