From the President: Let’s End Our ‘Two-Tiered’ Criminal Legal System

(But First, Let’s Define What This Means)

The criminal legal system is broken and will remain so until those with power to effect change listen to the people who, for decades, have been marginalized, abused, and victimized by this financially segregated and socially biased system.

Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.

A call to action resounding from the bully pulpits of elected officials and pundits across the ideological spectrum is the urge to end America’s “two-tiered” justice system. Sound familiar? Absolutely!

The history of our nation abounds with evidence that ours is indeed a two-tiered legal system. The institution of slavery in 1619 began this odyssey in creating the system of justice for those who enslaved Black people versus the enslaved, who absolutely had no rights. After the abolition of slavery, the “Black Codes” instituted primarily in Southern states led to the imprisonment of thousands of Black men, women, and children. They essentially enforced conditions similar to slavery, such as forced labor and convict leasing systems. White perpetrators who lynched Black people rarely faced accountability, and the impunity only encouraged more atrocities and even invited civic celebrations. Indeed, photos from the lynchings reveal a festive environment in which white women and children joined their “men” in rejoicing over the literal destruction and desecration of Black bodies. The criminalization of actions of our civil rights leaders during the activist era resulted in many unjust arrests and prosecutions. The “war on drugs” and “tough on crime” policies led to mass incarceration of Black and Brown people. So, our country has historically operated, and continues to operate, on a two-tiered system of criminal justice. In addition to the racial inequities that play into its perpetuation, all are aware of the level for the wealthy and well connected versus the poor, vulnerable, and marginalized. “Equal Justice Under Law” are the four majestic words inscribed above the western portico of the U.S. Supreme Court building. Unfortunately, this lofty phrase rings as a hollow aspiration to many accused individuals who lack the social status and financial resources to the hard truth of our two very unequal criminal legal systems.

It has now been over three years since the murder of George Floyd and the social justice movement that ensued. That movement addresses the continued inequities that have plagued our system since our country’s founding. The Preamble of the United States Constitution includes the phrase “in Order to form a more perfect Union, establish Justice....” This implies that the progress of the American experience remains incomplete, as we must all strive continually to improve our nation and justice system. This ongoing mission inspired the title of then-Sen. Barack Obama’s speech at the National Constitution Center in Philadelphia in 2008 after controversial statements made by his former pastor Jeremiah Wright that Obama denounced. So, as the post-George Floyd social movement has continued in order to form a more perfect Union, some wealthy and influential individuals have occasionally sought to hijack this effort by positing that they, too, somehow face a tilted playing field when they are hauled into court. Cries to defund the FBI have been ringing from some corners in Congress. (Where were those cries when the FBI’s Counterintelligence Program — COINTELPRO — conducted its infamous, illegal surveillance of innocent U.S. citizens exercising their First Amendment rights to assemble and speak, including, among many others, Dr. Martin Luther King Jr.?) Yet it sometimes seems that individuals across the political aisles are trying to sing from the same hymn book — or at least to appropriate some of the old, cherished choruses for their own purposes. For example, we now hear from the mouths of those who have forever espoused “law and order,” while turning a blind eye to abuses by some law enforcement officials and some prosecutors, that an urgent need exists to acknowledge and deal with “prosecutorial misconduct.” The concern NACDL and others in the criminal defense community expressed for years concerning prosecutorial overreach, Brady violations, suborning perjury, and generally obstructing the search for the truth is now coming from the lips of those who have historically ignored and, indeed, sanctioned the immense, unchecked power of prosecutors. For those who express a new-found sense of outraged at perceived injustices, the question to ask is where were they when these tools were used against the marginalized communities and individuals who lacked social and financial access to armies of attorneys, lobbyists, and pundits with vast audiences?

The system is broken and will remain so until those with power to effect change listen to the people and communities who, for decades, have been marginalized, silenced, abused, and victimized by this financially segregated and socially biased and unbalanced system. We must all learn together about the true breadth and depth of the system’s failings, or we are doing nothing more than supporting ongoing injustices. This is the time to step up and step forward as drum majors for justice by demanding transparency, accountability, and equity for all individuals, to persevere in unity on our march toward a more perfect Union.

About The Author

Michael P. Heiskell is the owner of Johnson, Vaughn & Heiskell in the Fort Worth-Dallas, Texas area. He represents individuals and entities in state and federal courts throughout the country, with an emphasis on white collar investigations and prosecutions. He is a past president of the Texas Criminal Defense Lawyer’s Association.

Michael P. Heiskell (NACDL Life Member)
Johnson, Vaughn & Heiskell
Fort Worth, Texas

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