Over-prosecution and the Jena 6 (Million)

Is Justice Color Blind?

The “Jena 6” 

Last week’s tale of the Jena 6 is a news story that went largely unnoticed (except for social-media sites like Digg) until 20, 000 people showed up in a small southern town for a protest.  But when it did finally notice and weigh in, the AP wrote a surprisingly well-balanced piece.

As the article shows, the real issues in Jena are complex and nuanced, but the questions raised by the protesters are indeed valid.  And unfortunately, they are nearly identical to the story of Shaquanda Cotton that I commented on in this post

But I will repeat them here once again for emphasis, based on the primary themes of the Jena 6 protesters:

  1. Are African Americans treated differently by the criminal justice system?
    1. Are African Americans charged with harsher crimes?
    2. Are African Americans given harsher sentences if convicted?
  2. Is there an epidemic of criminal overcharging by prosecutors that most severely affects minorities and the poor?
  3. Are local authorities (over) using the Justice System as a tool to resolve trivial matters? 

De Minimis Non Curat Praetor” – “The Law is not Interested in Trivial Things” 

Regardless of ones opinions of the racial issues in Jena, at least one issue becomes obvious: the problem of over-prosecution.

No denies that these 6 Jena youths deserve some sort of (hopefully non-judicial) punishment for their misdeeds in beating up a hapless white southerner.  But I think most rational people would see the local DA’s felony charges of “attempted murder” and “assault with a deadly weapon (a shoe in this case)” as unnecessarily excessive. 

I guess gone are the days when a local police officer might make a misguided youth write a lengthy apology letter and pay damages for such smallish offenses.  Gone too are the days where attorneys remember their law school training and the concept of “de minimis” – that there are actually things too trivial to be addressed by the legal system.

But excessive charges are really just something that is now built into the modern day justice system.  Sure, sometimes prosecution and defense meet in the middle, but sometimes they don’t.  When they don’t, the criminal convictions and punishments handed out by the Justice Systems become disproportionately harsh.  Ultimately ruining the lives of those affected.  And those affected are disproportionately male, African American, and poor.

“Ubi Injuria, Ibi Remedia” – “Where there is a Wrong, there is a Remedy.”

So how do we solve the crime itself of minority over-prosecution? 

The first step to solving most problems is measurement.  Do we even measure the race and income levels of those prosecuted?  Can we compare prosecutions and outcomes based on race?  You fill out a federal race survey form when you apply for a job, why not make investigators, DAs, and judges fill out a similar form when someone is investigated, charged, convicted, and sentenced.  Let’s start collecting some statistics, tracking these disparities and their sources, and quantify to what extent these disparities truly exist.

Then how do we solve the larger problem of over-prosecution in general?

This is a tough one.  The prosecution system derives maximum benefit from maximizing conviction rates and punishments.  So one possible solution is to have better educated and trained grand juries, justices of the peace, and local magistrates who stop petty crimes from advancing in the criminal justice system to begin with.  Right now, these preliminary checks in the system amount to little more than rubber stamps.  Raising the burden of proof that one must present these bodies could be one solution, but might be difficult in practice.  Giving local police and justices of the peace tools that allow them to exercise non-judicial punishments might be another solution.  

The real and somewhat more difficult solution is quite frankly for everyone in the justice system to exercise a bit more restraint and common sense.  Now, how do we write a law that guarantees that?

The Jena 6 Million 

There are many millions more just like the Jena 6 in our criminal justice system right now.  For relatively minor offenses (mostly drug convictions), they face excessive charges, draconian punishments, and felony convictions that change the context and potential of their lives forever. 

Now is the time to examine the epidemic of over-charging and over-prosecution.   Until we do, youths from Jena and the rest of the country will continue to enter our prisons at an ever-increasing and alarming rate. 


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