No Matter How Many Changes Are Made in the Law, Until the Culture of the American Justice System Changes, Nothing Will Really Change—No Matter How Many Changes Are Made on Paper
The most effective legal advocates in the Clemency world are powerhouse attorneys MiAngel Cody and Brittany K. Barnett.
If you don’t know who these women are and what they do, you should learn about them. What they have achieved is mind-blowing. They come in, pick a case apart, boil it down to a compelling story, and get the person out of prison, even if they have 17 life sentences (without parole), as one of Brittany K. Barnett’s first clients did. Their work is akin to a highly trained Navy Seals team or other special forces unit going behind enemy lines to rescue an American hostage. They are the best of the best, and they get the job done.
MiAngel Cody and Brittany K. Barnett are so good at what they do (at routinely winning seemingly impossible cases) they highlight just how grossly incompetent some other attorneys are—even highly respected attorneys known for their skill are revealed to be lazy and incompetent when MiAngel and Brittany step up to the plate. That is, they make the best of the best look incompetent at worst or mediocre at best. The contrast is radical and glaring.
Unlike most people in the world of law who have grown callous, MiAngel and Brittany’s hearts overflow with compassion. They eat, sleep, and breathe the pursuit of justice for their clients, services they provide pro bono. They work selflessly and tirelessly. They gave up six-figure jobs and drained their bank accounts to fight for the freedom of prisoners who were unjustly sentenced to ridiculously long prison terms. They invest personal time away from their families. In a word, they sacrifice. In fact, the prisoners are, in their eyes, their families. Just read Brittany K. Barnett’s book, A Knock at Midnight, and you will understand that perspective.
Yet to get such a warrior fighting for a prisoner’s release is incredibly rare. To even get on their radar is beyond difficult. Take it from me; asking anyone for help can feel like sending letters to a black hole. Responses are infrequent and connecting with someone who will truly help is even rarer still.
At any rate, the problem is that MiAngel Cody and Brittany K. Barnett are but two women tackling a massive nationwide problem. They are trying to unwind decades of injustice. Naturally, these two amazing women have limited time and can only handle so many cases. To even vet a case is time-consuming and laborious as it requires poring over thousands of pages of transcripts and other parts of the court record. Both have teams that help them, but again, these are only two lawyers in the Clemency world working to correct injustice.
My point is, in the time and allocation of resources it takes to win the freedom of one prisoner, the federal government has crushed thousands of other federal prisoners with punitive prison sentences that are shockingly high and disproportionately harsh. The federal justice system is broken, and although MiAngel and Brittany have made incredible strides for their clients, they fight against an overwhelming tide of unjust sentences, trying to correct the broken front-end of the system by rectifying wrongs on the back end.
In short, it takes such an investment of time and resources to win the freedom—via Clemency, Compassionate Release, or other post-conviction litigation—of one prisoner that it’s impossible to keep up with the steady flow of unjust sentences. It’s not that the work necessary to win the freedom of one prisoner isn’t worth it—when just one person is given new life and freed from prison, it’s worth it. The key is to stop the flow at its source—the system itself that imposes sentences that don’t fit the crime.
The solution doesn’t lie in making superficial changes to the current paradigm, nor in having two pro bono attorneys endeavor to unwind decades of unfair sentencing practices case by case. The answer is to change the culture of the justice system that is producing these unduly harsh sentences. It is not necessarily laws or the current punishment paradigm that drive these sentences. It’s humans who know how to use the law to manufacture such sentences because even when outdated, blatantly unfair drug laws are changed, it does not mean that an equally harsh sentence cannot be manufactured by a different method. If a prosecutor wants to ensure the prison sentence is in the 20-30-year range, he has endless ways to achieve that. There are many ways to manipulate the U.S. Sentencing Guidelines; however, the issue is too lengthy and complex to detail here.
But if the culture of prosecutors’ offices and courthouses is changed, that’s when real change occurs.
In other words, when a prosecutor has a ‘no mercy’ mindset that people need to spend 20, 30, 40 years or life in prison for nonviolent crimes, then he will achieve that goal, even if changes were made to outdated laws. Most prosecutors and judges’ practices are a product of the culture they are immersed in—an inescapable force that molds and shapes their mindset and behavior.
The Power of Culture
What is culture exactly? Many would say culture is the food, language, music, history, and traditions of a group bound by a specific nationality or ethnicity. And while this may be one accepted definition of culture, it’s not the only one.
Sociologists suggest culture consists of values, beliefs, communication, and practices that a group may share and that may be used to define that group as a collective. Therefore, culture can also be viewed as our knowledge, common sense (or lack thereof), assumptions, expectations, and behaviors.
Culture plays a critical role in our social lives. Culture is the rules, norms, laws, and morals that govern our collective groups, shaping our relationships, challenging social order, and determining how we move through the world.
Humans are capable of creating both great cultures and destructive ones. And while we are the ones to create these cultures, over time, they mold and shape us as well.
Nick Saban and the Alabama Crimson Tide
Nick Saban, head coach of the Alabama Crimson Tide, is considered by many to be the greatest college football coach of all time. Saban surpassed legendary Bear Bryant’s record by winning an astounding seventh national championship in 2020. In addition, Saban has produced a multitude of Heisman Trophy finalists and winners, NFL draft picks, and a Who’s Who head coaching tree. The guy is a history maker.
Underneath these successes is a culture that Saban and his team have fine-tuned over the years, built on leadership, discipline, and accountability. Saban holds himself and his players to the highest of standards, and this, more than football acumen or a strategic recruiting approach, is what has led the Crimson Tide to their historic successes.
It is undeniably the culture of the Alabama football program that consistently produces champions and championships alike. Each year Nick Saban plugs in new players to his program and lets the culture work its magic, shaping his players’ mindsets and behavior. Take those same players and plug them into a toxic culture that fosters lazy and selfish players who cut corners and get into trouble off the field, and the result would be radically different—because culture is a powerful force that permeates every corner of an organization.
“There are three things we can’t have: We can’t have complacency. We can’t have selfishness, and we can’t lose our accountability.” -Nick Saban
Contrast the culture of the Alabama football team with the Baylor Bears football team from 2011 to 2014. One Dallas Morning News headline read: “New Baylor lawsuit alleges 52 rapes by football players in 4 years, ‘show ’em a good time’ culture.”
The lawsuit alleges that 31 Baylor football players committed 52 acts of rape in four years — an estimate that far exceeds the number previously provided by school officials.
The Wall Street Journal covered the story and revealed that, since 2011, seventeen women had asserted that nineteen members of the Bears team had committed rape or assault, including four gang rapes.
A septic culture no doubt fueled the behavior during that period.
I highlighted the striking contrast between the Alabama football team and the (2011 - 2014) Baylor football team to underscore how powerful an impact culture has on people. It can change bad people for the better and good people for the worse.
If one plugged some of the problematic Baylor football players into the Alabama football program, they likely would have thrived both on and off the field due to being shaped by the norms and expectations of the team culture. Conversely, if one plugged some Alabama players into the Baylor football program, some of them likely would have sunk to the toxic level of that culture.
The Toxic Culture of the Ferguson Police Department
On August 9, 2014, Michael Brown, an unarmed young black man in Ferguson, Missouri, was shot and killed by a white police officer. Soon after the incident, the U.S. Justice Department began investigating the Ferguson police department and found a disturbing culture that blatantly targeted African Americans and created a “toxic environment.”
The report found that officers routinely used excessive force and issued petty citations to make baseless traffic stops, thereby boosting city coffers through fines. Over the years, these actions created a culture of distrust between the police and area residents.
The shooting of Michael Brown was the spark that ultimately ignited the powder keg that led to violent riots following Brown’s death. While violence is never the answer, it’s easy to see how years of mistrust and resentment, created by the destructive and toxic culture within the Ferguson Police Department, led to the events that captivated a nation.
When new officers found themselves immersed in the poisonous culture permeating the Ferguson Police Department, it no doubt rubbed off on them, and, through assimilation, they adopted the collective mindset that flowed from the culture, producing a disturbing and dangerous pattern of policing practices.
The LAPD
In the early morning hours of March 3, 1991, a video camera caught the beating of Rodney King, an African American man, at the hands of four officers of the Los Angeles Police Department while other officers stood by and watched. The video was broadcast far and wide in the days that followed, provoking a public outcry against police brutality.
The horrific scene caught on tape raised questions about the LAPD’s practices and culture and led to the 1991 Christopher Commission Report. The commission conducted a full examination of the structure and operation of the LAPD, including its recruitment and training practices, internal disciplinary system, and citizen complaint system. The investigation and report were unprecedented and uncovered a history of racism and excessive force.
For instance, three of the four indicted officers had previous complaints of excessive force. Computer and radio transmissions after the beating also suggested that the King beating was part of a larger pattern of police abuse.
Following the beating of Rodney King, an LAPD survey of over 900 police officers found that a good percentage of respondents agreed that “racial bias (prejudice) on the part of officers toward minority citizens currently exists and contributes to a negative interaction between police and the community.” Many respondents also believed an officer’s prejudice might lead to excessive force.
Why was the LAPD’s culture allowed to become so corrupt? Who is responsible? As with any culture, everyone in the group is responsible for the shared beliefs and values. Ultimately, the racism and excessive use of force by the LAPD was a failure of leadership. The commission report determined a small group within the LAPD was the “problem group,” who were the repeated subjects of excessive force complaints. But no one on the force, not colleagues nor superiors, did anything about it.
Culture Allows Us to Adapt
Culture leads to the success or failure of humanity. We have the capacity for excellence and absolute evil. We can lift each other up or tear each other down.
We create our own social environments and invent the rules as we go along. When a culture is not beneficial for every group member, a conversation must be had, and new rules and patterns put in place that reshape our behavior and lead to greatness for all.
To that end, attempts have been made to change the policies and procedures of the criminal justice system. There has been reform in the form of The First Step Act. It’s great that the unjust sentencing disparity between crack cocaine and powdered cocaine has been made retroactive, though many believe this came way too late. The 924(c) stacking law has been changed. Some tweaks have been made to the 851 sentencing enhancement to mitigate against prosecutors weaponizing it. But as was touched on earlier, don’t think that prosecutors cannot accomplish the same objective using a different vehicle just because some changes were made. There are countless ways to inflate one’s U.S. Sentencing Guideline range, and these methods are often used.
Culture Trumps All
Also, do not confuse minor, superficial tweaks to the justice system and changing the most outdated, draconian, and grotesquely unfair aspects of the criminal justice system with revolutionary reform that addresses the root of the problem, the culture that permeates the justice system. Minor tweaks and superficial changes can be made to the justice system—and larger, more expansive, and far-reaching changes still need to be made. Still, nothing will change until the punitive, pervasive culture of the justice system changes. It is the punitive culture that drives these unduly harsh sentences.
Back to the example of a police officer. The department can offer de-escalation training and implement other policies to curb senseless killings of citizens and excessive force.
But if there is a culture throughout that police department that says shoot or beat anyone who smarts off, then—guess what—the culture and mindset supersede the policies and training. On paper, things have changed, but in real life, nothing has.
When a punitive and vindictive culture is at play, it contaminates the everyday practices of people involved in the justice system. A punitive culture in which human life is devalued simply because someone committed a crime is every bit as problematic as the actual crime is.
There is a cost for the crime that was committed. And there is a cost in the punitive way the punishment is doled out. People are not numbers and not statistics, and they are not convictions on a piece of paper. They are people. And those people have loved ones who suffer, including children. It’s an immeasurable, detrimental domino effect.
Am I saying that every sentence is disproportionately harsh and that every prosecutor is out to crush defendants with punitive sentences? Absolutely not. Prisons are needed, and so are prosecutors. I think some prosecutors are heroes. I believe that some judges are heroes. And I think some in law enforcement are heroes. They show up to work every day truly focused on justice and have integrity in what they do. I believe that. There are great men and women who are prosecutors and who are in law enforcement, and who are judges. I was raised by a police officer. They should be admired because of their integrity in administering justice and keeping people safe, because they rise above pettiness and vindictiveness, they do not allow petty emotions to dictate their actions, because they believe in a dispassionate pursuit of justice and an objective application of the law, and because they are fair and reasonable and not allow the power to turn them into petty tyrants.
I do not want to be portrayed as someone who believes that all people in the justice system are bad and that all people who committed crimes should be given a cupcake, a hug, and sent on their way. Some people in the justice system are remarkable people doing God’s work, and some people who commit crimes need to be sent to prison, and some of them need lengthy prison terms. Absolutely.
But others are petty tyrants who are drunk on power and who devalue human life and use their position to wreak as much destruction as possible, oblivious to the human toll—all under the guise of justice.
I committed nonviolent offenses, and I needed to come to prison. But my 30-year sentence is unduly punitive and serves only to warehouse me unfairly.
Until the culture of the courthouse changes, nothing will change, no matter how many changes are made on paper. Culture trumps all because a person immersed in and is a product of a toxic culture can always manipulate and game the system to carry out their agenda—and no amount of minor tweaks here and there will change that.
From what I can glean by watching the news is, there are only two positions on criminal justice matters: soft on crime and tough on crime. That is, people lose their objectivity and become hysterical, saying either they are letting all the dangerous criminals out so they can rob and kill us all, or they are unfairly incarcerating people for the sake of incarcerating them. But this does not jibe with reality.
It’s not always one extreme or another; it’s more nuanced than that. Oversimplification is the hallmark of a fallacy, and injustice exists on a spectrum.
It’s about being smart on crime, and it’s about not ignoring the wealth of empirical evidence that clearly demonstrates that the current paradigm is broken. And it’s about learning from that valuable data to improve the U.S. system of justice, making it fairer and more effective.
Our system of justice is not supposed to be purely punitive. People are worth a second chance. They are complex. Yes, they made bad decisions, but they have opportunities to change and grow. Perhaps their decision-making was skewed because of a dark period in their life or because of an addiction. Maybe they were confused and lost or simply made a mistake.
Reader, you may not have been arrested or convicted of a crime, but have you ever violated a criminal statute; that is, have you ever committed a crime—ever fudged on your taxes. (Did you report all of that income?) Ever done some drugs in college or otherwise, sold a little weed or pills, driven a car after one too many alcoholic drinks, etc.? Are you sure you’ve never committed a crime? Or a felony?
My point is you don’t have to be evil to commit a crime. Most people who commit crimes can learn and grow; that is, they are not irredeemably bad. And warehousing those people for ridiculous periods serves no good purpose.
And until the culture of the justice system changes, nothing will, no matter how many changes are made.
