Power of the System

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The United States is the greatest law factory the world has ever known.

~Charles Evans Hughes

Newspapers crackle with the latest novel crime, shooting, or surge in the crime rate. Prosecutors bemoan the inadequacy of the available laws to sufficiently corral and punish various culprits. “The current laws are inadequate,” they shrug. Responding legislators add yet another layer of stifling, unnecessary laws to the reams of laws already on the books. Nitwit authorities adopt another “zero-tolerance” policy. The police promise to use the new “tools” to put the hammer down on the newly lawless. District Attorneys promise vengeance. Months or years later, newspapers celebrate a judge for delivering some poor bastard to gallows. The preening, self-satisfied legislator who crafted the new law congratulates himself.

As experienced Massachusetts criminal defense attorneys or thinking citizens well understand, the latest law does little to restore a sense of security. Criminals, blissfully unaware of law enforcement’s new tool, remain outlaws. After nightfall, areas of our cities remain the proving grounds for the violent, the disturbed, the desperate and the drug addicted. Frustrated and frightened, citizens feel the system incapable of delivering safe streets, good schools and enduring peace. The latest law is just so many words, without the least bit of meaning to the gangsters prowling their neighborhoods. Many hold criminal defense lawyers responsible for defending these hoodlums. Few citizens accused of crimes are properly characterized as hoodlums or gansters. Most are simply everyday folks who have made mistakes, acted on impulse, or misunderstood the limitless, confusing, and inconsistent laws that govern us. Many, indeed far too many, are innocent.

The more corrupt the republic, the more numerous the laws.

~Tacitus, Annals

The system is powerless – to root out crime, to heal the unhinged, to comfort the afflicted, to right so many wrongs. But is it not without power. Incapable as it may be of addressing society’s ills, daily it exercises its dominance over the individual. It doesn’t deliver us from misery – it administers misery. Every new criminal statute a hollow point cartridge, and our government is locked and loaded. Armed to the teeth, it punishes the wayward – brutally, often denuding him permanently of all that makes life meaningful or even endurable.

I was not designed to be forced. I will breathe after my own fashion. Let us see who is the strongest.

~Henry David Thoreau

That reality has been brought home to me – repeatedly. Every visit to a jail, a house of correction, a prison, reinforces the government’s power to persecute, embitter, enrage and dispirit. High fences, circles of gleaming barbed wire, crows nests, peeling paint, and endless mildewed concrete – with the flags of the Commonwealth and the U.S.A. as garish ornaments – this degrading, wholesale caging of human beings diminishes us. And endangers us. Hostile prison guards, shockingly low quality chow, and an atmosphere of unremitting violence and tension, exorcises not a single demon. Within such an environment, the demons that drove these men to violate our laws flourish and multiply.

None are more hopelessly enslaved than those who falsely believe they are free.

~Goethe

Put simply, the government incarcerates a troubled man and, when he completes his sentence, it unleashes a depraved, unstable animal on society; a man with no job, a scarlet letter, and a reservoir of insidious hostility.

Despite a steady diet of taxpayer dollars, access to some of the best and brightest minds on the planet, and over two hundred years of experience, our government manages only to make the bad worse. If it reserved the use of prisons to the unrepentant, incurably violent, the collateral damage might not be so destructive. But, in the land of the free, our government incarcerates a much higher percentage of its population than any other nation. Shockingly, we imprison 730 citizens out of every 100,000 citizens. In contrast, Russia “only” incarcerates 522 citizens out of every 100,000. Our neighbor to the north, Canada incarcerates a mere 117 per 100,000. Can U.S. citizens be nearly seven times more lawless and dangerous as Canadians?

Violence is the weapon of the weak; non-violence the weapon of the strong.

~Mahatma Gandhi

Regrettably, as we increase our weaponry, expand the reach of our laws, and toughen punishments, we grow weaker as a nation. For by doing so we have conceded that we are unable to tolerate normal human failings, to improve the conditions which spawn the carnage, or to uplift our fellow man. Our government resorts to violence because its expedient, popular, and requires little thought and even less understanding.

Kevin J. Mahoney is a Cambridge, Massachusetts criminal defense lawyer, author of Relentless Criminal Cross-Examination, and on-air legal analyst.

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