“…O’er the land of the free, and the home of the brave”
So concludes the American national anthem, sung proudly, earnestly and frequently at stadiums, arenas and sports fields, and on the 4th of July. But with a prison population of over 2.2 million, the US is the world’s biggest jailer by far. The nation comprises less than 5 percent of the world’s population, yet accounts for a quarter of the world’s prisoners. Its incarceration rate is five to six times greater than its European counterparts. These are baffling statistics, which cannot simply be explained by lenient gun laws or trite "tough on crime" observations.
For those of us seeking insight as to why and how this happened, Al Jazeera America will premiere The System with Joe Berlinger, a new eight-part documentary series directed by veteran filmmaker Joe Berlinger (Brother's Keeper, Paradise Lost Trilogy, Whitey: The United States vs. James Bulger). Focusing on two cases in each episode as a departure point, the series examines critical issues in the justice system: flawed forensics, false confessions, faulty eye-witness testimony, mandatory minimum sentences, and prosecutorial misconduct, to name a few.
In a marked departure from his previous films, the series features Berlinger on camera, navigating the murky world of crime and punishment, speaking to prisoners, prosecutors and victims' families, and frequently getting rejections as some subjects adamantly decline to be interviewed.
“That’s the first time I ever put myself on camera and it was a very considered decision because I’m not that kind of filmmaker, usually,” he admits, during a phone conversation from his New York office. “It was important to me and to Al Jazeera, not to just wag a finger and say, ‘The system is broken,’ and to show just one side. In covering these stories over the years, I have learned that there is great complexity and ambiguity. And by seeing the filmmaker’s journey, grappling with the complexity of the issues, we help the viewer understand that.”
Berlinger’s extensive, two-decade experience in the field of criminal justice certainly makes him the right conduit between the wrongfully incarcerated and the victims' families still seeking closure. He explains, “With any other kind of show, I would not necessarily feel qualified to be on camera, but my ‘specialty’ in the documentary business has been legal cases and the legal system, so I feel like I’m a qualified tour guide in that particular world. To explore the criminal justice system and come up with some solutions, you have to show both sides. When botched forensics means that you should give the prisoner a new trial, you still have to have sympathy for the victims’ families, who believe these guys are guilty. Their whole healing process is predicated on believing that the police caught the right guy.
“Originally we were just going to do a series on wrongful convictions, but there’s a much wider lens that we need to look through," the filmmaker confides.
“We have a criminal justice system in dire need of reform.” Berlinger continues. “As a longtime observer of it, I have moved along a continuum, because Paradise Lost was my wake-up call that wrongful convictions can happen. But there are huge systemic problems beyond wrongful convictions that need to be addressed, and that’s really why I am doing the series.”
The first episode in the series, False Confessions, features the renowned case of Jeffrey Deskovic, who was eventually exonerated on the basis of DNA evidence after spending 16 years imprisoned for a brutal rape and murder he did not commit. As a shy 16-year-old, Deskovic was subjected to a ruthless, seven-hour interrogation by detectives, and he finally caved, admitting to a crime he was not guilty of. Deskovic, now an activist for those wrongly convicted, is one of many. In 27 percent of cases overturned by DNA evidence, the defendant gave a false confession.
“One of the great benefits of DNA is that prior to DNA testing, the general public was much less willing to believe that there could be such a prevalence of wrongful conviction cases,” Berlinger explains. “And DNA, which is an unassailable science, has forced people to recognize that false convictions are far too common. The problem—and where we need greater attention—is that most cases don’t involve DNA. So you have to look at prosecutorial misconduct, a botched FBI crime lab, and policies that intend to help but actually hurt, such as policing strategies.
“Ninety-seven percent of cases don’t end up going to trial but are ‘pled out,’" Berlinger notes. "On the surface you might think that’s a good figure, but because there are so many problems with the integrity of convictions, sometimes people are forced to plead something they did not do because they don’t have the resources to fight, and it disproportionally affects the poor and the minorities.”
He adds, “The other impetus for the series is, I can’t tell you how many letters I get from people claiming to be innocent. At face value I don’t just think that everyone who sends me a letter is innocent, but you have to believe that a good percentage of those letters are in earnest. There’s a real problem, and the series just scratches the surface.”
Though the show is not solely focused on prisons, it does dispel some generalizations and misconceptions about convicts propagated by fictional shows on television. The most striking aspect is how articulate, gentle, resilient and remarkably devoid of resentment the wrongfully incarcerated are.
“I have over the years been really struck by the lack of bitterness that people have even after they have been abused by the system," Berlinger maintains. "Sometimes people falsely view the lack of outrage demonstrated by people who claim to be wrongfully convicted as evidence that they must be guilty because, ‘Why aren’t the pounding the table more?’ And I learned long ago that that is a foolish way to look at it. Anger and bitterness will consume you, and a lot of these people, somehow—in order to survive—learn to put that aside. Those who make it under the pressure of the unbelievably unfair circumstance of being wrongfully convicted, have to let the anger go. Not the resolve to exonerate yourself, but the anger.”
As each episode examines individual cases, what transpires is the fact that sometimes justice is not blind, but random. So much depends on the accuracy of police work or the willingness of a judge to reopen a case and re-examine evidence. As a consequence, many prisoners are often warehoused and forgotten.
Berlinger points out, “Most prosecutors don’t ever want to have a wrongful conviction, and I’ve met many outstanding prosecutors who care about justice, and many law enforcement people who take their responsibilities seriously. But people in positions of power don’t want to admit they made a mistake, and are afraid of the consequences of doing the right thing; they would rather let someone rot in prison. That propensity of not wanting to come to terms and correct mistakes is exactly why this series is so important, and why media attention to the legal system is necessary.”
When asked about how the justice system has evolved since he started with Brother’s Keeper, Berlinger identifies the growing privatization of prisons, for deincentivizing rehabilitation and incentivizing incarceration. “We have exponentially moved away from rehabilitation as a concept," he explains. "The privatization of prisons has made rehabilitation a dirty word.” In addition to an systemic racial bias and a failed war on drugs, this has resulted in “draconian drug laws that have been disproportionately impactful on minority communities.”
That said, Berlinger goes to great lengths to cover different viewpoints, giving voice to victims' families, and he regularly reframes the narrative from the law enforcement perspective.
“In all of my work, I believe you have to show both sides and let the truth rise to the top," he maintains. "By treating the audience member like a jury, instead of dictating specific points of view, if you let them weigh the pros and cons instead of being passively lectured to, it creates a much more emotional connection. That was the idea that I wanted to bring into the series.”
Berlinger concludes, “The most fundamental thing that separates America, in theory, from any other country is the idea of personal liberty as the most important, basic, core American value. When we have by far the highest incarceration rate in the world, set against a backdrop of a country that believes in the sanctity of personal liberty, there’s a problem there and it needs to be addressed. That’s really what drives the series.”