Those who administer criminal justice in our country have historically sought to be consistent with the fundamental American tenet that all are “created equal.”
In recent times, though, criminal laws have been applied by powerful institutions in a manner that is dramatically unbalanced, and the contrast has been jarring.
Former Trump campaign adviser Roger Stone was taken into custody in a mode that has traditionally been reserved for the most dangerous criminals. Twenty-nine heavily armed agents, 17 vehicles, a helicopter, and two amphibious units were deployed to carry out a pre-dawn raid on a 67 year-old man with no prior criminal record. By the way, CNN had been tipped off, and the tactical team showed up only after cameras were in place.
Stone was aggressively prosecuted for process crimes that had arisen during the investigation. Contrast this with the case of fired FBI Deputy Director Andrew McCabe, who lied under oath while in his official capacity. McCabe was neither arrested nor prosecuted. Instead he was allowed to cash in on his name recognition as a CNN contributor.
It has become crystal clear to anyone who has observed these cases, as well as other high-profile prosecutions or lack thereof, that the criminal justice system has not been equally applied.
Most Americans sense that fairness requires, even demands, a single justice system be firmly in place, as opposed to a multi-tiered one. Denying the constitutional mandate for the “equal protection of the laws” is dangerous to the freedom that our nation treasures.
The guardrail, which stands between our freedom and tyrannical rule, is much thinner than we think. If lack of equality in the administration of criminal law by a government is left unchecked, what will stop that government from engaging in more serious abuses of the legal process?
The use of the criminal justice system as a means of eliminating political opposition is a practice that has been consistently used by totalitarian regimes, and those governments that are on the road to totalitarianism.
The way fully developed unequal justice would manifest itself in a tyrannical regime is via a public trial in which the guilt of the accused is pre-determined by the judicial authorities before the process ever begins, a.k.a., a “show trial.”
By holding a counterfeit trial, an undemocratic government is able to eliminate foes and, at the same time, warn others as to the consequences of dissent or opposition. The misuse of criminal law and procedure is, in fact, the ultimate propaganda.
The world is full of examples of this malevolent misuse of judicial institutions. In Soviet Russia, criminal trials were meticulously staged. If the accused did not admit guilt for fabricated crimes, he or she was deemed to be “uncooperative” and would oftentimes be summarily executed without a public show trial.
In the early 1920s, fake criminal proceedings known as “model trials” were used by communist oppressors to make an example of individuals both in Russia and the Ukraine.
In the 1930s, the cold-blooded dictator Joseph Stalin used faux criminal justice to suppress any possible criticism, opposition, or dissent via the Moscow Trials of the Great Purge. The discredited New York Times reporter Walter Duranty claimed at the time that these due process-free trials were actually fair.
During the 1950s, after the communists took control of China, the Communist Party under Mao Zedong charged thousands of people with crimes and, after show trials, many ended with a death sentence.
In 1989 the memorable Tiananmen Square student-led protests took place. The demonstrations were indelibly stamped in the minds of Americans when video footage and photographs emerged of a lone man standing in front of a column of tanks. Show trials were given to many of the protestors who were arrested and charged as communist-termed “rioters and counter-revolutionaries.”
Between 1933 and 1945, the Nazi government established a large number of “special courts” that used made-up crimes to wage pre-determined prosecutions on individuals who were perceived as hostile to the regime. Thousands of German lives were taken on the orders of the “special courts.”
These examples compel us to pursue the ideals that are reflected in our founding documents and legal traditions.
A phrase that sums up the legal foundation of fairness is engraved on the front of the United States Supreme Court building in Washington, D.C. It reads “EQUAL JUSTICE UNDER LAW.”
These words re-phrase the Court’s unanimous decision applying the Fourteenth Amendment, when then-Chief Justice Melville Fuller wrote that “…no State can deprive particular persons or classes of persons of equal and impartial justice under the law.”