The Barter System of Justice

 

shutterstock_167988596In a perfect world criminals would be punished appropriately and expediently, and the innocent would find vindication in our courts of law. We do not live in a perfect world. We have the highest rate of imprisonment in the world, our crime rates are low and lowering, but our system can hardly be described as just.

Justice Alex Kozinski of the US Court of Appeals Ninth Circuit wrote an article in the Georgetown Law Journal last summer that is bringing the injustice of our system to light. As George Will put it:

[Justice Kozinski] provides facts and judgments that should disturb everyone, but especially African Americans, whose encounters with the criminal justice system are dismayingly frequent and frequently dismaying.

The article [pdf] is eye opening. Yes, Kozinski sits on the most overturned court of appeals in the land, but that does not make him wrong here. His focus is not so much on the justice received by the guilty, but rather on the injustice received by the innocent in the gears of a system which can no longer tell the difference. Kozinski asks:

We can be reasonably confident that the system reaches the correct result in most cases, but that is not the test. Rather, we must start by asking how confident we are that every one of the 2.2 million people in prisons and jails across the country are in fact guilty. And if we can’t be sure, then what is an acceptable error rate? How many innocent lives and families are we willing to sacrifice in order to have a workable criminal justice system?

The question should weigh heavy on our hearts and minds because :

What we have is faith that our system works very well and the errors, when they are revealed, are rare exceptions. Much hinges on retaining this belief: our self image as Americans; the pride of countless judges and lawyers; the idea that we live in a just society; confidence in the power of reason and logic; the certainty that none of us or our loved ones will face the unimaginable nightmare of unjust imprisonment or execution; belief in the incomparable integrity and accuracy of our system of justice; faith that we have transcended medieval methods of conviction and punishment so that only those who are guilty are punished, and their punishment is humane and proportionate. There are, we are convinced, no Edmond Dantèses and no Château d’Ifs in America today.

The entire article worth reading and should be studied by all who are concerned that our justice system is broken and no longer represents our national character. In it he lays out the many ways in which the system fails, and his overall conclusion is that our belief in the prosecution’s uphill climb to prove a person guilty of a crime is a myth, the accused is realistically guilty until proven innocent, and the man accused of a crime must prove himself innocent — pretty much the opposite of what we believe about our criminal justice system.

If one accepts his conclusion then some very disturbing questions must be asked about the system as it exists today. The question I cannot get out of my head is this: how many people would be incarcerated if either a conviction at trial or a guilty plea to the actual crime believed to have been committed were required to imprison a person?

According to the Bureau of Justice Statistics the overall felony conviction rate is 68 percent. I presume this number is of cases that go to trial. If one excludes cases resolved by plea bargain then the prosecution does face real work in obtaining convictions, but this is only for 3 to 5 percent of cases. According to Conrad Black (who has a little experience with our justice system) “97 percent of federal cases and about 95 percent of state cases are resolved by plea bargains…” which would not be much of a problem except that “in practice, these [plea bargains] are almost invariably dictated by the prosecutor.”

Kozinski finds much of the same problem and adds to it corruption, people’s inclinations to believe the first position presented (always the prosecution’s case), enforced ignorance of juries, and naive beliefs in the infallibility of forensic and witness evidence presented at trials. As the problems inherent in the system stack up I’m forced to wonder if the system gets it right by accident rather than the other way around. In my own experience I attribute a just outcome to providence rather than to our criminal justice system as designed and operated.

I realize we cannot boil this down to an absolute binary where the system is either just because only the guilty are punished or unjust because some innocent people are incarcerated. I hope we can all agree, however, that the correct number of innocents we’re willing to sacrifice to have a system is much lower than the number we are sacrificing today.

My other primary concerned raised by this article and my own interaction with the criminal justice system is that the real problem is cultural rather than legal. If incarceration required a guilty plea to the actual crime (which almost never happens) or a trial conviction the system would be overwhelmed. We simply have too many people committing crimes which require adjudication by the system. Because our society and culture stands as it is now, we are forced by sheer numbers into a barter system of criminal justice where an unfettered, and often unaccountable, prosecutor offers the accused the best lemon on the lot.

Published in Law, Policing
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  1. Matt White Member
    Matt White
    @

    Dad dog,
    You missed the point entirely.
    Due process is a right meant to protect the people from those who would abuse positions of authority.
    Laws have now changed so that the process is a punishment. This gives authority abuseres power the constitution meant to prevent. It’s not about percentages.
    When the process meant to protect the rights of the accused is used to punish without trial then the system itself is corrupt. The law failed.
    It’s not about the percentage of corrupt people, but corruption of the system itself.

    • #31
  2. Dad Dog Member
    Dad Dog
    @DadDog

    The King Prawn:an unfettered, and often unaccountable, prosecutor

    P.S.  KP: Could you please help me out, by laying out your factual basis for this statement . . . in particular, the adjectives “unfettered” and “often unaccountable”?

    • #32
  3. Dad Dog Member
    Dad Dog
    @DadDog

    Matt White:Laws have now changed so that the process is a punishment. This gives authority abuseres power the constitution meant to prevent. It’s not about percentages. When the process meant to protect the rights of the accused is used to punish without trial then the system itself is corrupt.

    I don’t entirely disagree with you as to the existence of this corruption; only, as to its extent.  

    Moreover, I would argue that, even more than there is corruption, there is a justice system overwhelmed by sheer numbers.

    Both the corruption you decry, and the overwhelmed aspect I describe, are the result of the tremendous size of our population, and (therefore) the growth of every part of our government.  If I recall correctly, Toqueville, in praising our (then) young country, also expressed the fear that, as we grew in population, this type of corruption would also grow.  The bigger the system, the less accountability, the more opportunities for corruption to survive, and the more pressure for overwhelmed folks inside the system to keep the boat afloat.

    In other words, I believe that the problem is not with the system.  The problem is in its size, which allows (and creates pressure for) these problems to exist.  It was inevitable.

    But, throwing out our criminal justice system — imperfect, but also the fairest and most just in the world — would be throwing out the baby with the bathwater.

    (Off to court.)

    • #33
  4. iWe Coolidge
    iWe
    @iWe

    Justice delayed is justice denied.

    The system is ridiculously slow. It takes many years for cases to go from start to finish. As a result, the accusation is bankrupting to all but the richest people. An accusation will most likely result in a plea deal just because poor people cannot afford (in money, time, and emotional resources) to put up a real defense.

    • #34
  5. Dad Dog Member
    Dad Dog
    @DadDog

    iWe:The system is ridiculously slow. It takes many years for cases to go from start to finish. As a result, the accusation is bankrupting to all but the richest people. An accusation will most likely result in a plea deal just because poor people cannot afford (in money, time, and emotional resources) to put up a real defense.

    I agree; this troubles me, too.

    However, based on my experience, the primary reasons for this delay are (1) the sheer size of the system (as I describe above), and (2) the many procedural safeguards — on behalf of the defendants — which have been instituted over the past century or so.

    • #35
  6. Jojo Inactive
    Jojo
    @TheDowagerJojo

    iWe:Justice delayed is justice denied.

    The system is ridiculously slow. It takes many years for cases to go from start to finish. As a result, the accusation is bankrupting to all but the richest people. An accusation will most likely result in a plea deal just because poor people cannot afford (in money, time, and emotional resources) to put up a real defense.

    True, but shifting the criminal justice system over to more like a civil justice system, as I understood you to suggest, is not an improvement.  The civil justice system is even more expensive, slower, and probably less accurate.  Seems poor victims then would never get justice.

    As Dad Dog said, some of this is a problem of scale.  If we lived in villages where everyone knew each other for life, a council of village elders just hearing out the two sides would probably be able to achieve more justice than we can with our complex rules and procedures.

    • #36
  7. The King Prawn Inactive
    The King Prawn
    @TheKingPrawn

    Dad Dog: I don’t entirely disagree with you as to the existence of this corruption; only, as to its extent.  However, I would argue that, even more than there is corruption, there is a justice system overwhelmed by sheer numbers…In other words, I believe that the problem is not with the system.  The problem is in its size, which allows (even creates pressure for?) this corruption to exist.  It was inevitable.

    This is what I was trying to say in the last two paragraphs. Also this:

    Instead of blaming the criminal justice system, I suggest that you — as with other society-wide, system-wide problems — look “upstream” . . . at the culture.

    We have this system because we must. I know we cannot have a perfect system in which each guilty person is charged and convicted with only the crime actually committed.

    My bigger problem is that an innocent person in this system (I know because I was one) is overcharged and bartered with rather than honestly tried. The safeguards we have to keep the innocent out of prison are abused by the guilty to remain free, so we’ve developed a way around them. This is great for society as far as criminals are concerned, but it is the very definition of injustice for anyone else caught in its gears.

    • #37
  8. iWe Coolidge
    iWe
    @iWe

    It is really NOT a problem of scale. Lots of big enterprises work quite quickly. McDonalds, anyone?

    The problem is state enterprises are inherently bureaucratic, and time makes them more so.

    If the state offered a “charter court” option similar to charter schools arrangements, that could make a big difference. Define the task, and out it out to bid.

    • #38
  9. Jojo Inactive
    Jojo
    @TheDowagerJojo

    iWe:It is really NOT a problem of scale. Lots of big enterprises work quite quickly. McDonalds, anyone?

    The problem is state enterprises are inherently bureaucratic, and time makes them more so.

    If the state offered a “charter court” option similar to charter schools arrangements, that could make a big difference. Define the task, and out it out to bid.

    Maybe “scale ” wasn’t quite the right concept, but the problem is information.  McDonald’s needs very little to serve you.  Getting and organizing and comprehending and interpreting the information for even a simple trial is enormous- in my tribal elder fantasy, they would already know a great deal about all the parties and be able to efficiently evaluate information.

    There are now some private forms of alternative dispute resolution or arbitration for civil cases; my understanding is they are only marginally better than the court system.

    • #39
  10. The King Prawn Inactive
    The King Prawn
    @TheKingPrawn

    Dad Dog:

    The King Prawn:an unfettered, and often unaccountable, prosecutor

    P.S. KP: Could you please help me out, by laying out your factual basis for this statement . . . in particular, the adjectives “unfettered” and “often unaccountable”?

    This is more about things like OC or the prosecutor who spent a total of 5 days in jail after wrongfully sending a person to death row by withholding exculpatory evidence.

    You bring up the higher ethical standards for prosecutors. Why don’t we see action taken based on those except rarely? Are prosecutors as a whole somehow more ethical than the rest of society? I know the vast majority do behave ethically, but surely those who don’t should be hauled out in the street and made an example of, but that rarely, if ever, happens.

    • #40
  11. The King Prawn Inactive
    The King Prawn
    @TheKingPrawn

    Pilgrim:As a young lawyer, I worked as an administrator for a year in Recorders Court, the criminal trial court for the City of Detroit. Recorders Court handled all felony prosecutions in the City. Because of sheer volume and speedy trial rules both the judges and the prosecutors were under severe pressure to “clear the docket.”

    What results isn’t pretty but it is an amazing example of a type of market. The defense bar and the Asst Prosecutors spent years dealing with each other with a high degree of good faith. Lawyers on both sides had information regarding the defendant that a jury would never get to hear. Both sides were able to accurately assess the cost and risk of trial, the need for some, but maybe less than draconian, punishment and the need of the public and defendant to feel that the outcome was fair. Given the variables of the defendant’s age and record, the predilections of the assigned judge, the severity of the alleged offense, the availability of witnesses, physical and forensic evidence etc. a very large degree of agreement as to the going rate for a plea-bargain would be achieved.

    Not much different from a wholesale car auction where any of the professionals can tell you within a narrow range the fair price of a car based on make/model, age, milage, and condition

    All fine and dandy until you’re the car…

    This is what I was hoping to convey with the title.

    • #41
  12. Dad Dog Member
    Dad Dog
    @DadDog

    Jojo makes my point well.

    Another example:

    Let’s journey back to the American frontier, circa 1890. In a frontier town, a man is accused of murder. He is arrested and charged. His family scrapes together funds for a defense (because there were no public defenders). The matter comes to trial. A circuit judge rides in, and presides. Six jurors are selected from among the town’s most respected men. The defendant is convicted. He is sentenced to hang. Sentence is carried out the next morning.

    Start to finish (arrest to hanging), the whole thing probably takes three or four days . . . less, if the judge lives in town.

    Now, 125 years on, the increase in size of our population (and, therefore, government) and in the number of procedural safeguards has stretched this process out to . . . 20 years? (Probably less in Texas.)

    You can have fast criminal justice. You can have fair criminal justice. You can have cheap criminal justice.

    Choose two.

    • #42
  13. iWe Coolidge
    iWe
    @iWe

    Jojo: There are now some private forms of alternative dispute resolution or arbitration for civil cases; my understanding is they are only marginally better than the court system.

    Often true.

    Arbitration in some circles works as follows: Each party chooses one representative from a pool of qualified jurists. The two jurists agree on a third.

    Then the panel hears each party, and renders a decision between them.

    The result can be much quicker and much less painful. But the result is invariably some kind of compromise, which means that when viewed from 30,000 feet, the unreasonable party usually has won.

    • #43
  14. Jojo Inactive
    Jojo
    @TheDowagerJojo

    Dad Dog:You can have fast criminal justice.You can have fair criminal justice.You can have cheap criminal justice.

    Choose two.

    The problem is sometimes it seems you can choose zero.  It is a difficult problem.  But it’s exacerbated by a lack of market forces since the ones who suffer generally did not choose to participate, and slow/unjust/expensive doesn’t tend to hurt those in it for a career.

    iWc is on to something by trying to introduce market forces but it’s hard to see how it could work.

    • #44
  15. The King Prawn Inactive
    The King Prawn
    @TheKingPrawn

    Thanks Pugshot and Dad Dog for bringing in the other perspective. My view of the matter is limited to reading (which is biased by what I read) and my own singular experience with the system. I discovered in that ordeal a system wholly unrecognizable from what I believed our system to be and a subset of our society (not a class, but maybe) for whom that system is required. Injustice swings both ways: the innocent are punished or the guilty go free, and there will always be some amount of that because we cannot perfect the system, but what I seek is an honest and ongoing evaluation of the system we have to determine if the level of injustice extant is the best we can do. Kozinski obviously sees too much, but he also offered ideas on how to reduce the injustice.

    • #45
  16. The King Prawn Inactive
    The King Prawn
    @TheKingPrawn

    Dad Dog: You can have fast criminal justice. You can have fair criminal justice. You can have cheap criminal justice. Choose two.

    Less criminals would be nice (that’s the cultural failure we both agree exists), but barring that, where do we strike the balance between fast, fair, and free?

    • #46
  17. MarciN Member
    MarciN
    @MarciN

    Dad Dog: During jury selection, it has become necessary to make clear that the real world is not like television: that very few cases actually have any “CSI,” and that there has never been — and never will be — an ironclad case.

    I want evidence, material evidence. If you haven’t got it, then you don’t have a case. Period.

    It has nothing to do with television and everything to do with justice. Plain simple justice.

    • #47
  18. Pilgrim Coolidge
    Pilgrim
    @Pilgrim

    The King Prawn: All fine and dandy until you’re the car… This is what I was hoping to convey with the title.

    I see what you did there.

    • #48
  19. MarciN Member
    MarciN
    @MarciN

    Dad Dog: But, you are explicitly arguing that anything short of perfection in the criminal justice system is unacceptable.

    When it comes to punishing someone, you’re darn right it had better be perfect. Anything less is unacceptable. It is harm to someone else. No one has the right to harm someone else without just cause.

    • #49
  20. The King Prawn Inactive
    The King Prawn
    @TheKingPrawn

    MarciN:

    Dad Dog: But, you are explicitly arguing that anything short of perfection in the criminal justice system is unacceptable.

    When it comes to punishing someone, you’re darn right it had better be perfect. Anything less is unacceptable. It is harm to someone else. No one has the right to harm someone else without just cause.

    I feel that instinct in my bones, and yet I’ve parked on the shadier side of town. I spent 32 hours in county with people who discussed the food and linens as if they were comparing hotels. There’s an instinct to lock up as many would be and will be criminals as possible as well. The system we have is perhaps inefficient when dealing with that subset of our society that knows nothing but the cycle of crime and incarceration. But an innocent who falls into that system is ruined.

    • #50
  21. iWe Coolidge
    iWe
    @iWe

    Jojo: iWc is on to something by trying to introduce market forces but it’s hard to see how it could work.

    Use the market! Offer private legal options who are encouraged to showcase themselves as providing swifter, more just results.

    Imagine if criminals were given a choice: prosecution and possible incarceration versus a private judge, reparations and a chance at private rehabilitation. You would be able to start chipping away at the underlying problems.

    • #51
  22. MarciN Member
    MarciN
    @MarciN

    Two wrongs will never make a right.

    There are other answers. And we can start with schools. (Just a little fact I stumbled upon years ago, and I don’t know how valid it is today. But 80 percent of the inmates in the Barnstable House of Correction were functionally illiterate. If your language skills are poor, how able are you to work with your attorney?)

    If there is no material evidence, I’m sorry but you don’t have a case. We just have to live with the person being out of prison until we do have evidence. Police have so much latitude in collecting and presenting material evidence that I would always conclude that if they didn’t find it, it simply wasn’t there.

    Even material evidence is not enough–it is so easy to frame someone.

    The Innocence Project has been an eye-opener for us all.

    Believing someone might commit a crime is not sufficient reason to put that person behind bars.

    • #52
  23. The King Prawn Inactive
    The King Prawn
    @TheKingPrawn

    iWe: You would be able to start chipping away at the underlying problems.

    Define that problem, and how so?

    • #53
  24. iWe Coolidge
    iWe
    @iWe

    The King Prawn:

    iWe: You would be able to start chipping away at the underlying problems.

    Define that problem, and how so?

    See countless other threads. Breakdown of family, society. A sense of responsibility, consequences for actions.

    If the justice system were geared toward perps making victims whole, then perps are more able to connect the dots.

    Such a justice system would not reward prosecutors for plea bargains. To fix a broken system, follow the incentives.

    • #54
  25. Ryan M Member
    Ryan M
    @RyanM

    anonymous:

    The King Prawn: Because our society and culture stands as it is now, we are forced by sheer numbers into a barter system of criminal justice where an unfettered, and often unaccountable, prosecutor offers the accused the best lemon on the lot.

    And prosecutorial immunity means there is no downside or potential consequences of bringing prosecutions and manipulating people into plea bargains in order to nail scalps on the wall and angle for promotion or prepare for a political career. While there are genuine bad guys, the system as it stands is so fundamentally corrupt it does not merit the term “justice system”.

    Along with plea bargains, another scam is deferred prosecution. Chris Christie built his prosecutorial career in part upon this. If done in the private sector, it would be called extortion.

    I don’t think I agree with either of these statements, but then it becomes necessary to separate different types of criminal law.  Not all is the same.  Federal vs. State vs. Felony vs. Misdemeanor.  I’ve seen all of them, and only worked extensively in one rather small subset of the field.

    But, as I see it, there is a pretty big elephant in the room during all of these discussions, which is the question of how these “innocently convicted” numbers are reached.  I encourage my clients to take plea bargains all the time.  A vast majority of the time, in fact.  There is a reason for that.  When you sit down in a room with someone and look at the evidence, listen to that person’s perspective, and consider trial – well … I know more than a few attorneys who refuse to let their clients admit guilt even behind closed doors in a private meeting, because “I just don’t want to know,” as if that puts up some sort of ethical barrier.

    Deferred prosecution, in many respects, is a very good way to avoid convictions and trials, and to give defendants a 2nd opportunity if they really are sincere.  I see nothing wrong with that, although I do acknowledge that they could be abused (and there are examples of everything).

    But getting back to the innocently-convicted stats.  Take a 3-year chunk of time during which I may have represented thousands of misdemeanors.  I don’t know that I can think of even a single case of someone being falsely accused.  I can think of times where prosecutors seemed to be unnecessarily harsh; I can think of times where rights were violated, and those cases went to trial or were dismissed.  I simply did not have people taking plea bargains on crimes they truly didn’t commit.

    That’s the interesting thing about evidence.

    • #55
  26. The King Prawn Inactive
    The King Prawn
    @TheKingPrawn

    iWe: Such a justice system would not reward prosecutors for plea bargains. To fix a broken system, follow the incentives.

    Perhaps the prosecutors here can help define those incentives. From the other side of the room their incentives appear to be a win/loss counter. Even my own attorney seemed to be counting his record based on how much less punishment his clients received rather than on justice actually being done.

    One thing I cannot ever shake off is the presumption (and treatment) by ALL that no one reaches that point of the process without being guilty. The whole thing came down not to proving guilt or innocence but rather debunking or sustaining a presumption of guilt.

    • #56
  27. Ryan M Member
    Ryan M
    @RyanM

    Matt White:Dad dog, You missed the point entirely. Due process is a right meant to protect the people from those who would abuse positions of authority. Laws have now changed so that the process is a punishment. This gives authority abuseres power the constitution meant to prevent. It’s not about percentages. When the process meant to protect the rights of the accused is used to punish without trial then the system itself is corrupt. The law failed. It’s not about the percentage of corrupt people, but corruption of the system itself.

    ok –

    But I don’t really accept a lot of the presumptions being made in this statement.

    Yes, it is certainly possible to abuse authority.  We have those cases of political prosecutions up in Wisconsin (I think); there are examples of malicious prosecutors, etc…  Of course that sort of thing happens.  There are also dirty cops.  But then, there are con-men and crony capitalists, too.  There are dirty politicians, there are bad guys everywhere.  That’s not an indictment against our criminal justice system, but against human nature.

    I don’t believe that the process is set up to be the punishment.  Trust me, defense attorneys take advantage of the process just as much.  The problems with process stem more from feasibility.  Unless you have unlimited resources, you’re going to have lines… That’s just the way it works.

    The fact remains that it is still an extreme minority of cases that result from abuse or even from error.  The remedy would be exceedingly expensive and draining on society.  Even then, there is serious doubt about whether anything meaningful could be done to prevent those minority of cases.

    Compare this to climate change.  We can spend vast resources attacking a problem we don’t understand, but I don’t think that would be wise.

    • #57
  28. The King Prawn Inactive
    The King Prawn
    @TheKingPrawn

    Ryan M: The fact remains that it is still an extreme minority of cases that result from abuse or even from error.  The remedy would be exceedingly expensive and draining on society.  Even then, there is serious doubt about whether anything meaningful could be done to prevent those minority of cases.

    And if it’s your turn to take one for the team just be stoic and realize you pay for the peace and safety of all with your own life.

    • #58
  29. Pilgrim Coolidge
    Pilgrim
    @Pilgrim

    The King Prawn:

    Ryan M: The fact remains that it is still an extreme minority of cases that result from abuse or even from error. The remedy would be exceedingly expensive and draining on society. Even then, there is serious doubt about whether anything meaningful could be done to prevent those minority of cases.

    And if it’s your turn to take one for the team just be stoic and realize you pay for the peace and safety of all with your own life.

    No one who demands trial goes to jail without a trial.   Trial time is available only because of the plea bargains offered to those with little or no prospect of an acquittal (as they well know.)  The prosecution’s limitations are converted to real value in favor of the defendant who is guilty which clears the way for the innocent to have their day in court.   While an available trial might not be an optimal trial from the defendant’s point of view what in life is?  Every defendant isn’t O.J. and everybody doesn’t get to go to Yale.

    • #59
  30. Ryan M Member
    Ryan M
    @RyanM

    The King Prawn:

    And if it’s your turn to take one for the team just be stoic and realize you pay for the peace and safety of all with your own life.

    Not at all. I have strongly advocated intense pressure be put on those sort of cases that we’ve seen in Wisconson, and I’ve also long advocated harsh measures to be taken in proven cases of prosecutorial overreach.  But I’ve also been on both sides of the aisle.

    Take, for example, that case of the guy who died in custody (supposedly in on a traffic ticket, which I doubt) due to complications arising from drug withdrawals.  It was posted by one of our members as one of those “how are we OK with this?!” type posts.  I suggested there is much more to the story.

    I got a phone call from a client last week.  He had pled to a DUI and been given a report-date.  He was asking me to call the judge (which I cannot do, anyway) to move the date or get an exception or have him turn in at another location… because he couldn’t get a ride.  I simply told him it’s his responsibility to get down there, and there was ample time and ample opportunity.  We went back and forth for nearly 20 minutes, and extremely frustrated, I finally just said if he left right now he has plenty of time to walk and then wait.  Nothing is impossible.

    His response was to tell me he’s disabled, he’s not supposed to be walking, if he walks he will die – “if I had known that plea would be a death sentence, I would never have pled guilty to something I didn’t do.  I never wanted to take the plea in the first place.”  Nevermind, of course, the fact that he had pled down from a greater charge of which the prosecutor had ample evidence (video, testimony, BAC, etc…).

    The other day I saw him walking down the street.

    Point being, criminals (for lack of a better word) aren’t all stupid.  Talk to any jail guard about how many inmates scream and rant and rave to fake illnesses; throwing themselves against walls, going into fits.  Use your imagination; they certainly do.  Much of this is made possible by the fact that our society will not tolerate any sense of cruel treatment, people are entitled to medical care, the best of services, and so forth.

    I am not saying that people should be treated poorly, or that prosecutors should have unlimited power and discretion.  What I am saying, however, is that the occurrence of none of those things suffices as a broader indictment on the system as a whole.  There are problems, of course, but not fatal ones – and most of our problems with crime are not on the legal end of things, but on the social end, before the law is ever involved.

    • #60
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