Friday, March 21, 2014

Quickies: The Criminalization Of Justice

My day has already been overfilled with obligations, so I must content myself with a brief piece that proceeds from Glenn Reynolds's excellent USA Today column of yesterday.

Professor Reynolds, whose fame among laymen proceeds from his InstaPundit blog and his role in the "blogging explosion" of the Nineties, is also an astute legal mind and a pithy commentator on the flaws he sees in American law and justice. His column, which I entreat you to read in its entirety, addresses the fatal lack of due process requirements and feedback mechanisms that has permitted American criminal justice to descend from Olympus to Hades, in effect becoming an instrument of oppression. His focus is not on what happens in the courtroom, but what goes on before a criminal case ever gets there.

The combination of grand jury biddability and prosecutorial discretion has given rise to an assembly-line character in the criminal justice system. Prosecutors tend to be as ambitious for advancement as anyone else in "public service," and in their case the road to higher positions is paved with copious convictions, whether or not those convicted deserve their fates. Inasmuch as the luxuriance of criminal law has created a state of affairs in which every one of us, whether wittingly or not, is "guilty" of something, an aggressive prosecutor can "rack 'em up" by pursuing a simple strategy:

  1. Look around for "suspicious" behavior -- i.e., behavior on the part of a private citizen that can be made to appear suspicious;
  2. Ruthlessly probe every element of the "suspect's" life, using the effectively infinite resources of the State, until enough "suspicious" behavior has been amassed;
  3. Assemble a huge list of charges to place before a grand jury;
  4. Present the case in such a fashion as to promote the more plausible accusations and obscure the less plausible ones, thus securing a grab-bag indictment;
  5. Offer the indicted person a plea bargain that will spare him centuries in prison and complete pauperization at the bargain price of a few years and/or a few thousand dollars.

There is no brake to this strategy. Excessive law plus complete prosecutorial discretion plus a competent prosecutor's ability to lead a grand jury by the nose combine to put even a simon-pure citizen at the mercy of the criminal justice system. And what a system it is! Had it been consciously designed to put the maximum number of persons in prison regardless of guilt or innocence, it could not have been done better.

But there's a flip side, as well: a prosecutor's discretion about whether to file for an indictment allows him to curry favor with criminals and corrupt officials, while his ability to lead a grand jury in his preferred direction allows him to detoxify allegations made by others, which public pressure has compelled him to "investigate." So the very attributes of the system that put innocent persons at its mercy combine to make it a bottomless well of protective resources for the evil and corrupt. And prosecutors, as Professor Reynolds has observed, are immune from redress on the grounds of their discretion and their grand-jury proceedings.

Vigilance committees, anyone?


Rob said...

My solution is for a panel of 3 prosecutors that must vote unanimously for a charge to be brought before a grand jury. One appointed by the chief executive of the jurisdiction. One elected by the law community in the jurisdiction. And one popularly elected.

YIH said...

Prosecutors can and do 'overcharge', and sometimes it can 'blow up in their faces'.
When Casey Anthony was the big story I was saying IRL and online ''you watch, she's gonna walk''. The reaction I got was ''no way, she did it, she's going down''. The State Attorney was in a heated battle with Rick Scott for the GOP bid of Governor, so he pushed for 1st Degree Murder with death penalty (BTW, this was before the body was found). My opinion was they could have made a case for negligent homicide, but premeditated murder? No chance.
The reason it backfired was due to overcharging, the resources for both the prosecution and the defense were greatly increased. Instead of just another case on an overloaded Public Defender, she got a legal team.
When the body was finally found it didn't help matters much due to six months of decomposition making the cause of death speculation at best.
There was enough claims and counterclaims that 'reasonable doubt' was not only possible, it was almost certain. That the 'drowned in the pool' story was likely bogus didn't matter, it worked anyway.