Why the Criminal Justice System Barely Works

The other day a friend and I were partaking of the mortal remains of quite a number of defenseless grapes, and the subject of law enforce arose. Having spent a number of years as a police reporter, I began thinking of curious and often erroneous ideas that people have of what we regard as a system of justice. Without meaning to bore the reader, I offer the following thoughts and observations.

First, any system will make mistakes. The only way to convict all of the guilty is to convict everybody. The only way to avoid convicting the innocent is not to convict anyone. The more the system leans in one direction, the more it will err in the other.

Second, it is absurd to accept the Enlightenment idea that a criminal, having “paid his debt to society” by a stint in prison, will come out and make a new start as a normal human. The fact is that most crime is committed by career criminals. An armed robber aged twenty-nine invariably will have a rap sheet dating from puberty of thirteen arrests and a couple of convictions for assault, drug offenses, gun offenses, drugs, and so on. He is not going to make a fresh start.

Third, the complacent adage that “it is better to let ten guilty men go free than to convict one innocent man” may apply in cases of shoplifting. It may not be better to let ten Ted Bundys go free than to convict an innocent. Your choice may depend on whether you have a daughter in college.

Fourth, people charged with crimes by urban police departments are almost always guilty. There are two reasons for this. One is that they are usually caught in the act, driving the stolen car, carrying the illegal gun, or having drugs in their possession. The other is that DA’s won’t paper a case unless they are pretty sure of winning either in court or by plea bargain.

Fifth, the US does not have trial by jury but, in over ninety percent of cases, trial by plea bargain. Crime is so rampant in American cities that many times more courts and prosecutors would be needed for jury trials.

Plea bargaining is convenient for prosecutors but a very bad system. It makes it easy for overzealous or crooked prosecutors to take advantage of suspects with little or no legal representation. It can, and sometime does, work against what we regard as normal people.

Suppose you are a suburban white man walking through a shaky part of the city without knowing it to be a red-light district, and you get unfairly arrested for solicitation of a prostitute. Your choice is to plead down to public lewdness or some such with a fine of five hundred dollars, or go to trial, lose your marriage, and maybe get three years. Which?

Yes, this can happen. Ages ago in my police-reporter days I walked one evening on Fourteenth Street, then a hooker venue. One of the girls said, “You sportin,’ honey?” Another lady of the evening stepped closer, as if to listen to my answer. I strongly suspected the first to be Cookie Marino, a police plant in the anti-sex trade force.

Solicitation was then defined as offering a specific price for a specific act. A guy with no interest could easily kid around (“I want five girls. I’ll give you a thousand dollars each.”) and get arrested. Then what?

Sixth, almost all of the celebrated shootings and brutality by police result from disobeying a cop’s orders. If a minion of the law tells you to stop and put your hands up, do it. You can sue later.

Seventh, drug rehab is a scam. The judge doesn’t want to send the addict to prison, since prisons are overflowing, but doesn’t want to let him go, and look soft on crime, so he sentences him to rehab, which he knows doesn’t work, but it becomes somebody else’s problem.

Eighth, jury trials are largely fraudulent. You are supposed to be tried by a jury of your peers. This was a good idea since it made it difficult for the government to railroad people it didn’t like. In today’s climate of racial hatred, “one’s peers” has to mean of one’s own race. A white jury is not unlikely to acquit a white charged with beating a black (Rodney King) and a black jury is very likely to acquit a black charged with killing a white (OJ Simpson).

Further, in theory the jury is supposed to consider the facts dispassionately and come to a reasoned verdict. Good luck with that. A jury of theoretical physicists might approach this ideal. In jury selection both prosecutors and defense attorney will try to impanel jurors emotionally biased in their favor.

For example, in a rape case the prosecutor will want a jury consisting of man-hating feminists and he will coach the victim to look sweet and defenseless. The defense will want a jury of primitive rural Christians who will think that if she was in that bar, in that neighborhood, with THAT Dress up to her armpits, she damned well deserved what she got. Yes, this is exaggerated, but it is how they think.

Ninth, it is not always clear what the country believes to be the purpose of prison.

Is the purpose to punish? Then prison should be harsh. If it isn’t disagreeable, it isn’t punishment.

It the purpose to deter? Then it should ed godawful as otherwise it will not deter.

Should vengeance be an acceptable purpose? In the case of someone selling marijuana, no—but the psychopath who tortured three girls to death? Your answer to this may depend on whether it was your daughter.

Is the purpose to rehabilitate? Then prison should be pleasant, with libraries, online courses, and training in auto mechanics, carpentry, and bricklaying.

Is the purpose to protect the public? Then the answer is long sentences’ whether in pleasant circumstance or not. Since the only thing that more or less reliably decreases criminality is age, sentences might read “until middle age.”

Tenth, the current system virtually guarantees recidivism. A black guy with a fourth-grade education goes to jail for fifteen years at age twenty-five. He comes out at age forty with no money, no acquaintances on the outside, and zero employability. What precisely do we expect him to do? Realistically there is no practical answer to this question. He understands armed robbery and dope sales. These are all he understands.

My only answer to all of this is what a friend, a public defender, told me: “Don’t ever—ever—get into the hands of the criminal justice system.”

Finally, it is worth remembering that few actually care about guilt or innocence. Trial attorneys are combative and want to win. An assistant DA does not rise in rank by losing cases. The defense guy, or gal, gains fame and clients by acquitting clients and do so even if they know the perp is guilty.