There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.

--Justice Hugo Black, in Griffin v. Illinois (1956).

There can be no intelligent discussion of the American criminal justice system without an acknowledgment of the fractured, dual nature of the enterprise. Who can dare look at the system and not notice that there are, in fact, two systems: one for the well-to-do and another for the poor? One for whites and another for Blacks?

When a wealthy man comes into contact with this system, it offers him all of the breaks and amenities imaginable. But, for the poor, prisons are an eternal assembly line of utter ennui and degradation; a sojourn into hell.

There are two classes in American prisons: state and federal. The federal system hosts those of means, and affords the imprisoned a degree of space and limited dignity that those held in state prisons can't even dream of. The degrees of difference between how wealthy and white folks are treated in the system, as opposed to how Black folks without capital interact with that exact same system, are vast and virtually incredible. Legal scholar David Cole writes, in his excellent recent work, "No Equal Justice: Race and Class in the American Criminal Justice System" (The News Press, New York, 1999):

For example, the Supreme Court has ruled that the Fourth Amendment bars police from searching luggage, purses, or wallets without a warrant that is based on probable cause to believe evidence of crime will be found. But at the same time, the Court permits police officers to approach any citizen--without any basis for suspicion--and request "consent" to search. The officer need not inform the suspect that he has a right to say no. This tactic, not surprisingly, is popular among the police, and is disproportionately targeted at young black men, who are less likely to assert their right to say no. In this way, the privacy of the privileged is guaranteed, but the police still get their evidence, and society does not have to pay the cost in increased crime of extending to everyone the right to privacy that the privileged enjoy. This pattern is repeated throughout the criminal justice system: the Court affirms a constitutional right, but in a manner that effectively protects the right only for the privileged few, while as a practical matter denying the right to those who are less privileged. By exploiting society's "background" inequality, the Court sidesteps the difficult question on how much constitutional protection we could afford if we were willing to ensure that it was enjoyed equally by all people. (Page 7.)

In other words, the courts speak loftily about "rights," but they understand that millions of people actually don't have, and can't exercise the very rights that they so loftily proclaim. They understand, better than anyone else really can, that "rights" are illusions--projections for domestic and international consumption, but not for actual application in the real world.

For it is in the real world that life is lived, a world that is all but invisible in the burgeoning thickets of "legal fictions" that crop up daily, like: "justice for all," or "effective assistance of counsel," or a "jury of one's peers," and the like.

Let us take "effective assistance of counsel," for example, a "right" that most school kids can rattle off as if by reflex, if not recite the Constitution's 6th Amendment by heart. How many people know that this alleged "right" means, in real life, little more than having a warm body that has a law degree in the defense chair? Courts have approved "effective representation" by lawyers who have been asleep, high, drunk, racist, untrained and/or cocaine-addicted. How many people know that no right to a lawyer exists in post-conviction hearings? Legal scholar Cole cites the real hearing transcript of one Mr. Exzavious Gibson, a Georgia Death Row prisoner who was at a "hearing" to challenge his trial attorney's [Mr. D. Mullis] representation:

The Court: Mr. Gibson, would you like to ask Mr. Mullis any questions?

The Court: Okay, sir. Okay, thank you, Mr. Mullis, you can go down. [From: "No Equal Justice" by D. Cole, The New Press, New York, page 75.]

This was a state habeas corpus "hearing" in 1996, where a man on Death Row, with a sub-80 I.Q., with no right to a lawyer, had his "day in court." It happened in Georgia, but it could have been in Texas, Virginia, or in a score of other states. What does the fabled "right to counsel" mean to this man, who faces death itself?

The Supreme Court, as long ago as 1986, ruled that it was unconstitutional to remove people from jury pools because of their race. Less than a year later, a leading Philadelphia district attorney was teaching trainees in his office how to violate that "rule" with impunity, warning his charges that "...young black women are very bad." What was wrong with them? "They are women and they're black," he explained.

Black citizens were being prejudicially removed from juries before the Supreme Court's 1986 ruling, during it, and now they are still being systematically removed. No matter what the courts say, two systems remain in place, where rules mean different things for different folks. Justice Hugo Black was right--and there still ain't no "equal justice."

Mumia is a prisoner on Death Row in Pennsylvania, convicted on dubious testimony for the murder of a police officer. For more information about his case, contact the local Seattle Mumia Defense Committee at 206-376-5867 or dante@halcyon.com or http://www.mumia.org