The Death Scalia and the State of Criminal Justice

Hola mi Gente,

If you haven’t already, get your behind to a theater near you and watch Michael Moore’s latest, Where to Invade Next. I would do a review, but I don’t want to spoil it for you. Suffice it to say that I think you should see it and that it will remind you of why we could be a great country…

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The Death of Scalia

 In the Era of The Collapse of U.S. Criminal Justice System

Before I move on to the significance (or lack thereof) of Scalia’s demise, I would like to share an anecdote. If you bear with me a moment, I think you will be able to see the connection I am trying to make.

Years ago, I stood in front of a judge, the future of my life in the balance. What that judge most likely did not know about my appearance says a lot about our criminal justice system. First, I was incarcerated though I had not been convicted of any crime. Because I could not afford bail, I was remanded to one of the most notorious penal colonies in the world, Rikers Island.

The following is called “Bullpen Therapy,” by those like me who have had to endure it every time we appeared before a court… 

Before I appeared before a judge (usually late in the afternoon), I was awakened at four in the morning. I was served breakfast in the mess hall (I was once served oatmeal that had maggots in it) and then, after maybe 10 minutes allotment time for eating, I was taken and put into a cage, generously called a holding cell or bullpen,  meant for 25 that contained maybe 50 people. The sole toilet was overflowing with feces and there was no room to lie down.

After about four hours, around 8:00 AM, the names began to be called. Once your name was called, you were shackled and put on a bus. Once the bus was filled, you taken to the county court where your alleged crime occurred and then put in another holding cell or bullpen, this one even more crowded than the one before. There you waited hours. The stink of the place was nauseating enough, but what they fed you for lunch was worse: usually slimy pieces of bologna between slices of barely edible white bread. Greasy cups of tea or sometimes Kool-Aid in Styrofoam cups was offered. 

If you were lucky enough to see your court-appointed attorney, it was for one or two minutes at the most. Oftentimes, they spoke to you while walking from the door to the front of the court, sometimes never even bothering to look at you in the eyes. You stood before the court and your public defender, assistant district attorney, and the judge would discuss your future as if you were not there. This would last maybe two-three minutes at the most. Sometimes, you would go through this process and if your defender was absent or the assistant district attorney was not prepared, you would be sent back without even seeing a judge or getting your date adjourned.

As soon as your court appearance was over, the court officer would escort you back into the bowels of the system where you would wait for hours until a bus would come and take you back to Rikers Island. The whole process I have described here could take anywhere from 20 hours or more. The same process was repeated every time you appeared before the court. By the time you were returned to the dorm and the hard bunk you slept on, you would be so physically and psychologically exhausted that you would promise yourself not to do it again. Indeed, I know of scores of people who, rather than go through the process of a court appearance again, would plead guilty to crimes they had not committed instead. 

If you think this process was the exception rather than the rule, imagine what I have just described happening tens of thousands of times in courts across this nation every day. Our criminal justice system is a conveyor belt of human bondage and has nothing to do with any high ideals of justice of fairness. The vast majority of the people on this conveyor belt are Black and Brown people -- mostly young men from the poorest communities in our land.

During one particular arduous Bullpen Therapy session (what many call justice), my judge refused to adjourn my case. I had come twice before him and due to various reasons (absent legal defender, ill-prepared ADA, etc.) and had to be turned away. So this is what the judge did: He became judge, defender, and prosecutor. In an instance he turned to my public defender and instructed her on what she needed to say and do. The he became a judge again and addressed the ADA. When the ADA demonstrated cluelessness, the judge became the prosecutor and instructed the ADA (who was busy picking up legal papers he had dropped on the floor) on what he had to do. Then the judge became a judge again and set another date for my case. What was hanging in the balance? Possibly 15 years of my life.

This is our criminal justice system. It is a system in which the rule of law has vanished. Prosecutors stand at this assembly line and decide whom to punish and how severely. Almost no one accused of a crime will ever face a jury. Inconsistent and abusive policing, rampant plea bargaining, overcrowded courtrooms, and ever more draconian sentencing have produced a gigantic prison population, with Black and Latin@ citizens the primary defendants and victims of crime.

What is interesting is that many years later, I was describing this incident to a group of lawyers who thought the judge’s actions were an example of legal genius. And this is where Scalia comes in. It is this unflinching reverence for authority that scares me. I am sure that the same people heaping praise on the most bigoted Supreme Court justices will no doubt do the same for war criminal, Henry Kissinger. It is this slavish adoration of authority that really makes, pardon the expression, my dick itch.

I am sure Scalia had no clue about the underbelly of the system he personified or represented. I doubt very much he was aware of “Bullpen Therapy” as I experienced it. In fact, I doubt the judge that eventually sentenced me knew what was going on in the bowels of his own court. Well, I come to bury Scalia, not praise him. For me, Scalia personified the essential evil of our failed criminal justice system. I do not wish to join in the now widespread and hypocritical praise for Antonin Scalia, one of the worst Supreme Court justices in living memory.

Scalia was not merely a conservative, which was bad enough, he was a reactionary authoritarian, whose only desire was to form and advance a theory of justice that was outdated by 1860. Scalia was an imperceptive, bigoted, factually knowledgeable but dogmatic thinker who had shut the world out of his awareness long before he had come to the bench. Fortunately for the rest of us, the world is rid of him. Scalia, for all his deep knowledge of law, remained devoutly oblivious to the changing reality around him and to the whole complex history of dissent from traditional ideas that had been going on since the 18th century. His was an ideology that facilitated the kind of justice that I, and many other Blacks and Latin@s, were subjected to.

My name is Eddie and I’m in recovery from civilization…