The Amy Coney Barrett Supreme Court confirmation hearing brought up the matter of how laws passed by the Legislature are found to be constitutional or not, and this is where our system of equal justice breaks down and creates inequality based on the ability for a person or group to pay for their desired justice.

The current system for determining whether a law is constitutional is conducted like this:  The Legislature or governing body of any kind passes a law criminalizing an activity.  It doesn’t matter whether the criminal law passed is so unconstitutional it sears the American conscience, because it has not yet reached the point of controversy!  What is the point of controversy?  It is when that law is used to prosecute an American citizen, including a foreign citizen afforded those protections by previous Supreme Court rulings.

Now consider carefully what I just wrote.  That means no law passed, no matter how obviously unconstitutional, can be challenged before the Supreme Court, lower federal and state courts, until the law is used to prosecute someone.  If a person prosecuted by that law has money and means, it becomes a manageable problem for them, but for a person who has no money or means, they may be prosecuted and found guilty, sent to prison or in some other way sanctioned, and if there is no group willing to put up money to fight for them, they have no recourse.  That is not a system of equal justice in our nation, but that is how it is right now.

Here’s a great example:  For many years, the states of Louisiana and Oregon allowed only ten of twelve jurors to find a person guilty of serious crimes like manslaughter.  Many, many people were convicted and imprisoned all those years by such non-unanimous juries until finally, some individual or group had the financial means to challenge non-unanimous juries before the Supreme Court, which ruled the practice unconstitutional.  Do you have any idea how much that legal challenge must have cost?  It had to be millions of dollars!  Only a small fraction of our citizenry is capable of paying for that, “justice”,  and because your average criminal isn’t usually a millionaire or billionaire, that unconstitutional law resulted in thousands of people spending many years in prison, often serving their entire prison term and being released before that law was found wanting by the Supreme Court.  That is unacceptable.

So far, I haven’t seen any mention of the recourse the victims of those unconstitutional non-unanimous jury laws have now.  Can they sue for damages?  How many were entirely innocent, but took plea deals because they feared conviction by that kangaroo, non-unanimous jury system?  In the case of Southern Oregon where I live, it was many, because the Public Defender’s Office here is about as capable of putting up a vigorous defense as the average teenager.  I actually witnessed a prosecution for Marijuana violations involving Medical Marijuana, where there was absolutely no evidence of actual guilt, yet a non-unanimous jury found the person guilty!  (Yes, the accused had a public defender representing him.)  The Southern Oregon Militia put up $13,000.00 for his appeal and won, but if he didn’t have our resources he’d have remained a wrongly convicted felon.  In another case where a young man was probably wrongly accused of murdering a young girl, the judge hearing the case allowed a lesser manslaughter charge to be considered by the jury, and sure enough, ten of the twelve jurors voted for a manslaughter conviction because they couldn’t agree on a unanimous murder conviction.  That young man served nearly his entire ten-year sentence before being released by the Supreme Court ruling — and he was probably not guilty of doing any harm to that young lady at all!

So let’s say a state legislature passes a law prohibiting anyone speaking or writing something critical of homosexuality.  Before that law can be constitutionally challenged, a citizen must be prosecuted and convicted by the state for violating it.  So a bunch of anti-constitutional legislators anywhere in our nation can pass any law they want, no matter how blatantly unconstitutional, and then  mercilessly prosecute any citizen daring to violate it knowing full well the average citizen can do nothing about it.  That is not equal justice under the law at all.

Many years ago I wrote that a federal judicial panel of some kind had to initially approve or reject the constitutionality of any new criminal law passed, be it local, state or federal, before that law could be used to prosecute anyone.  If that judicial panel initially found the law unconstitutional or even questionable, the legislature that passed the law could pursue the matter to the Supreme Court for final approval approval or rejection, but at least then the legislative body passing that law would have to pay the legal expense of doing so.  They passed it, so they should have to pay to prove the law is constitutional before they can use it to prosecute anyone, and that would be a huge step forward in equally protecting the rights of the citizens.

Food for thought, but only for the truly thoughtful.


Carl F. Worden

%d bloggers like this: