Our Rigged Criminal Justice System
Glenn Harlan Reynolds writes at USA Today about the sleazy tactics of law enforcement and prosecutors, fishing like mad for ways to declare people guilty (of something, anything) and then plea bargaining them into saying they were (with the threat of a pricey trial hanging over their heads). This means that:
The real action in the criminal justice system doesn't happen at trial, as it does in most legal TV shows, but way before, at the time when prosecutors decide to bring charges. Because usually, once charges are brought, the defendant will wind up doing time for something.The problem is that, although there's lots of due process at trial -- right to cross-examine, right to counsel, rules of evidence, and, of course, the jury itself, which the Framers of our Constitution thought the most important protection in criminal cases -- there's basically no due process at the stage when prosecutors decide to bring charges. Prosecutors who are out to "get" people have a free hand; prosecutors who want to give favored groups or individuals a pass have a free hand, too.
When juries decide not to convict because doing so would be unjust, it's called "jury nullification," and although everyone admits that it's a power juries have, many disapprove of it. But when prosecutors decide not to bring charges, it's called "prosecutorial discretion," and it's subject to far less criticism, if it's even noticed. As for prosecutorial targeting of disfavored groups or individuals, the general attitude is "if you can't do the time, don't do the crime."
The problem with that attitude is that, with today's broad and vague criminal statutes at both the state and federal level, everyone is guilty of some sort of crime, a point that Harvey Silverglate underscores with the title of his recent book, Three Felonies A Day: How The Feds Target The Innocent, that being the number of felonies that the average American, usually unknowingly, commits.
Such crimes can be manufactured from violations of obscure federal regulations that can turn pocketing a feather or taking home a rusted bit of metal from a wilderness area into a crime. In other cases, issues almost always dealt with in civil court, disagreements over taxes for instance, can be turned into a criminal case.
The combination of vague and pervasive criminal laws -- the federal government literally doesn't know how many federal criminal laws there are -- and prosecutorial discretion, plus easy overcharging and coercive plea-bargaining, means that where criminal law is concerned we don't really have a judicial system as most people imagine it. Instead, we have a criminal justice bureaucracy that assesses guilt and imposes penalties with only modest supervision from the judiciary, and with very little actual accountability.
I have an example of this for you:
When Formula One / Indycar racer Helio Castroneves was indicted on a tax matter, he was forced to appear in court in orange jumpsuit and shackles. It's not like this man was either preparing his own taxes, or even had a very good idea of what the tax laws were across international boundaries. But it was important for someone to show him chained like a serial murderer.
Radwaste at March 20, 2014 6:17 AM
Amy Alkon
https://www.advicegoddess.com/archives/2014/03/our-rigged-crim.html#comment-4407164">comment from RadwasteDisgusting, Rad.
Amy Alkon
at March 20, 2014 6:37 AM
And Castroneves benefitted from public visibility and fan support that ultimately made it too politically risky for prosecutors to railroad him. Think about the small business owner, in a similar position, who doesn't have the benefit of being a sports hero.
Cousin Dave at March 20, 2014 8:43 AM
From Ayn Rand's Atlas Shrugged:
"There is no way to rule innocent men. The only power any government has is to crack down on criminals. When there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking the law. Create a nation of lawbreakers and then you can cash in on the guilt."
Rex Little at March 20, 2014 9:02 AM
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