What Jefferson Had in Mind
Almost all accused criminals are guilty. The reasons are two. First, almost all are caught in the act. The driver wobbles across three lanes of traffic, has a half-empty bottle of Beam on the seat, and blows pickled as a gherkin on the Alkasensor. Not a whole lot of doubt here. Or he is found coming out of somebody else’s window with somebody else’s television under his arm. He is probably stealing it. Or he scores 75 on the radar gun in a thirty zone in front of a school. Or he proposes sex to an undercover cop for twenty bucks. Not a lot of mystery here. Unless you have seen female cops.
The second reason is that the DA won’t paper a case he can’t win. He is overworked as it is, and needs to look good by keeping his convictions up. He won’t take iffy cases.
Yet the criminal justice system is crooked from the gitgo. Start with the idea of trial by a jury of your peers. It doesn’t exist, unless you are rich or a celebrity case. Some ninety-five percent of cases are settled by plea bargaining. If everybody asked for a jury trial, the entire system would stop. If you do insist, the judge in all likelihood will be so angry that he will do his best to get you convicted and then give you the max. You pay heavily for exercising imaginary constitutional rights.
It gets worse. Consider plea bargaining. You are walking through a red-light-and-dance-club region and an undercover police woman in a three-inch plastic mini-skirt and fishnet stockings says, “Hi, honey. You sportin’?” You are not. Kidding, you say, “I want to do it in a swimming pool full of raspberry jello. I’ll give you a million dollars.” That’s an offer of a specific amount for a specific act. Bingo. You are arrested for soliciting prostitution. Which you were not. And cops know exactly how to phrase things to avoid an entrapment defense.
You are now screwed though not, alas, literally. Your choice is to fight the charge, with the ensuing publicity, loss of job and marriage plus huge legal bills, or plead to something like public lewdness with a small fine, no publicity, and a criminal record for a sex offense. Try getting a security clearance with that.
The United States is a heavily criminal society, as comparison with Japan or Finland will show. The courts are thus under pressure to do anything, everything, to reduce the burden of law enforcement. As mentioned, plea bargaining is one. Another is rehab. You get caught with a few rocks of crack, not enough to trigger intent-to-sell. The judge can’t just let you go, since that would amount to de facto legalization. The prisons are full and cost money. He sentences you to rehab. It doesn’t work, and he knows it doesn’t work. It does however have a feel of benevolence to it, of not being cold and heartless. It also fuels a lucrative rehab business. I have watched inmates come out, score on the street, and go back in. Such a deal.
The notion of a jury “of one’s peers” is similarly nonexistent in many cases. The usual reason is race. If you are white, and shoot a black intruder in your black neighborhood, you are road kill.
Remember when the LA cops beat Rodney King on video tape and they got off? White jury. Remember when OJ Simpson killed a white woman and got off? Black jury. Trayvon-Zimmerman? Same thing. White friends who have served on mixed juries complain that the blacks can’t understand words like “stipulate,” which makes things worse.
Perhaps worst is that the whole system rests on a wing-nut idea: the “debt to society.” You commit a burglary, get caught, and are said now to owe society five years in slam. This is ridiculous since society is paying your upkeep, but never mind. You are eventually let loose on the grounds that you have paid your debt to society and are now rehabilitated and will start afresh as a good citizen.
This is like letting a cobra loose in a crowded movie theater, where it promptly bites someone. You put it it a cage for six years to pay its debt to society. You then let it loose in the theater again, because it is now a Reformed Cobra and will doubtless teach civics to underprivileged children. Much to your surprise, it bites….
Most criminals are careerists. Crime is what they do. It is all they will ever do. Look at their rap sheets. In and out, in and out. Seven grand theft auto, four rapes, four possession with intent to sell, six assault and battery. I don’t know how many times I’ve covered a woman stabbed thirty-seven times (an actual case) at an ATM by a guy out of parole for something only slightly less gaudy.
But he got out because he told some dumb parole board that he done found Jesus, yes, Jesus mah man now, all I wants is to do de Lawd’s work. Which apparently includes stabbing a woman thirty-seven times. The Jesus business is a staple of prison propaganda.
A major defect of what would be our system of justice if it were a system of justice is that it is not investigatory but gladiatorial. The idea is not to determine guilt or innocence, but to win. By no means always, but often, the cops will lie, the witnesses will lie, and prosecutor and defender will lie carefully within safe limits so as not to get disbarred. Public safety matters no more than truth.
Example: The client of a friend of mine, I’ll call the friend Tom, did something spectacular. Spun across three lanes of Route 66, took out thirty yards of fence, and broke off a tree. I made that up, but it’s close. The cops arrived. He blew a BAC so high he could have been arrested as a container of moonshine. It turned out, as it usually does, that he had a record of this sort of thing.
Ah! But the law in Virginia (so Tom told me) says that if you aren’t actually seen driving the car, you can’t be convicted of drunk driving, and by the time the cops arrived, the guy was out of the car and stumbling about the grass. Tom got him off.
Typical. PDs in particular—public defenders—almost invariably know they are putting criminals back of the street. Hey, it’s their job. Everybody has to eat. Law? What’s that?