If you get arrested in America, it helps to have a lot of Twitter followers.
A rash of viral stories over the past few years has revealed something troubling about American justice. Too often it is dependent not on a system that safeguards rights, but on whether a person has the right or right number of supporters.
Take the famous case of Eh Wah, an American citizen and refugee from Burma. After pulling Wah over for a broken taillight in 2016, police seized over $50,000 they found in his car on the suspicion it was drug proceeds. In fact, the money had been raised by a Christian rock band for a religious college in Burma and an orphanage in Thailand; Wah was simply holding onto it as part of his volunteer job managing the band's finances. "I realized that they were seizing all of the money. I was like, 'This can't be happening.' But I didn't know what to do," Wah told The Post. Wah faced no charges initially, but the police didn't need charges to keep the money. As the Institute for Justice, a public interest law firm that represented Wah, points out: "Civil forfeiture allows law enforcement to seize and keep private property, even if the owner has never been charged with a crime." The police only returned the money after his story went viral.
Wah's lawyer, Dan Alban, told The Weekly Standard at the time that, "The Muskogee district attorney's rapid dismissal of [the case] is most welcome, but it indicates how flimsy these cases often are. Based on practically zero evidence to support either the civil forfeiture or the criminal charge, they ruined Eh Wah's life for two months, and likely would have permanently ruined his life if IJ hadn't gotten involved and attracted publicity to this gross injustice."
Wah ultimately received a just outcome because he was surrounded by the right people — in this case, IJ lawyers — and his supporters online. But justice shouldn't have depended on people making a fuss.
One of the bedrock principles of American system is that our government is one "of laws and not of men." In other words, the system itself was designed to ensure justice so that the protection of our rights is not dependent on the whims of people alone. But when only certain people receive justice because they have the support or resources necessary to navigate "the labyrinth of criminal justice," as lawyer and author Mike Chase once put it, then something is wrong.
Supreme Court Justice Neil Gorsuch sees the problem. A review of his new book A Republic, if You Can Keep it illustrates how the justice's early career informed his skepticism of prosecutorial power and his defense of the rights of the accused.
"I couldn't afford my own services when I was in private practice," he writes — nor endure months or years of legal wrangling to reach trial. Too often, he says, defendants are forced to cut a deal with prosecutors or accept a judge's ruling rather than face a jury of their peers. [USA Today]
Indeed, a Pew Research Center study found that just "2 percent of federal criminal defendants go to trial, and most who do are found guilty." Another 90 percent plead guilty, often simply to avoid the ordeal that comes with a full trial.
There is also a huge disparity between the American Bar Association's recommendation of how many hours of work cases should take compared with how much time defense attorneys are actually given. “A system that processes more than 10 million arrestees every year cannot possibly provide individualized justice — or in many cases anything resembling justice at all — to every one of those people," says Clark Neily, vice president for criminal justice at the Cato Institute. “Apart from a small handful of wealthy or just plain lucky defendants, what our system provides instead is a kind of 'McJustice' that pursues efficiency to the exclusion of virtually every other human and constitutional value."
“When there are so many crimes on the books that scholars have given up trying to count how many there are, should we be concerned that the prosecutor can pick their target first and find the crime later?” adds David Feder, a former law clerk to Justice Gorsuch and co-author of his new book. "It's unacceptable that the whim of a prosecutor is the only true dividing line between those who become criminals and those who don't," adds Chase.
The poor simply don't have access to the same kind of rigorous defense the wealthy do — unless, of course, the accused suddenly becomes famous. Then lawyers rush to their aid and prosecutors begin to examine their case with the kind of scrutiny they should have applied in the first place. A viral campaign can do the trick. But so can the patronage of an already famous person.
Kim Kardashian may be an unlikely champion of justice, but the media mogul has been quite active in the criminal justice reform movement. Last year, in fact, she brought attention to Alice Marie Johnson, a first-time, nonviolent drug offender who was sentenced to life in prison. While Johnson admits fault for her actions, they followed her divorce, youngest son's death, and loss of her job. And they certainly didn't warrant a life sentence.
After spending 21 years behind bars, President Donald Trump — at Kardashian's urging — commuted Johnson's sentence. For using her platform not only to free Johnson, but 17 other prisoners, an op-ed in The Hill named Kardashian "the hero that criminal justice reform needs."
Kardashian's work, like the work of IJ and others, is important. Justice needs watchdogs to make sure it is being carried out. But justice shouldn't need heroes to be carried out.
Editor's note: A previous version of this article mischaracterized Wah's legal exposure. It has been corrected. We regret the error.