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The Barter System of Justice
In 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
Agreed, but the amount of leverage prosecutors have to prevent a trial is staggering. When the calculus is trial on multitudes of charges with consecutive sentences for a single supposed act or bargain at half the charge that one act should incur, even the most innocent begins to doubt the righteousness of his own case. There’s a wide gap between a decade in prison and a couple of years on probation, but that is the sort of barter that is offered. And when one considers the lopsided difficulties a defendant faces as detailed by Kazinski, there is a point at which the chance of vindication appears vanishingly small.
Very true. Also consider that much of the problem we have with lengthy trial lists actually stems from previous efforts to solve these very sorts of problems. Everyone is entitled to an attorney, and the attorney’s job is full defense in every case. I’ve argued that this is absurd, as it encourages delay/expense tactics from obviously guilty defendants with nothing to lose. At least in part, the innocent suffer because of how much entitlement we afford the guilty.
This is the conclusion I come to over and over again. If we could find solutions on the social problems then the legal ones would sort themselves out.
Prawn, I don’t question the theory of what you’re saying, but the reality.
Does Kazinski provide any actual examples of this phenomenon, or is he simply pandering to a crowd that believes what it wants to hear? I cannot think of many situations where there are multiple crimes to be charged, for which a prosecutor has enough evidence on even a fraction of them to get a conviction at trial, which are then used as leverage to obtain pleas on charges where the evidence is lacking. My own experience has been quite the opposite, actually. I’ve bargained many a plea deal that results in dismissals of charges that I might be able to win on trial in exchange for pleas on charges where my client is obviously guilty.
Consider that even the defense attorney must find his life is much less stressful if he assumes that his client is guilty on some level. Otherwise he would have a hard time living with himself if he didn’t get an acquittal. But if the client is guilty, bargaining down the sentence can be seen as a victory. So no one but the defendant is 100% invested in the defendant’s innocence.
But what does it cost a prosecutor to try? What about the Koch brothers? They were indicted on 97 felonies, all dismissed except for 1.
But the same is done even where the accused is not obviously guilty. My experience is very limited, but why do prosecutors offer sweetheart deals other than they know they can’t win any other way? The whole damned thing felt like a game of chicken, and that is not justice for the accused.
ok, but again, I think you are oversimplifying.
It would cost prosecutors a great deal if they actually went around charging out bogus crimes in order to convict innocent people who they don’t like for some random reason.
And sweetheart deals very often have good reasons. I know there are some prosecutors around Ricochet who might be able to elaborate on their own thought processes, but as I said, it is still pretty complex. Imagine yourself as a prosecutor – let’s say you are thoroughly convinced, due to any number of things like witness interviews, contact with the defendant or victims or whatever else, but you know that the evidence is weak enough that you might not prevail at trial. You might offer a very good deal that calls for some probation or monitoring of some sort (these days, deals often come with various forms of drug/anger/DV treatment). In that sense, you’re still doing your best to see justice done, while respecting the fact that trial is often something of a coin toss.
These days, I end up representing victims more than anything else. Right now, the biggest injustice I see on a regular basis is when charges are dropped and people go walking off scott free. I think that is just as common as what you’re describing in your OP. Inevitably, any attempt to cure one of those problems will lead to an increase in the other one. That’s just the nature of criminal justice in a world with limited knowledge.
Why would I be thoroughly convinced if the evidence wasn’t there? I think that may be part of the problem.
The more I read and discuss this the more I wonder if we need two systems: the criminal administration system we have now (and you know that is exactly what it is) and a real criminal justice system where the rest of society goes and things work like crime is more an aberration and less a lifestyle choice.
Actually, this is very often the exact opposite of what happens. I think I’ve written at greater length about what sort of mindsets are required to be a defense attorney, but generally, they have significantly more information than you’d think. If they know a client is guilty, it is likely that they really know that. I know a lot of defense attorneys who will go to great lengths to convince themselves of their clients’ innocence. Keep in mind that you’re not merely dealing with how a person feels after trial – a big part of being a defense attorney is the actual presentation of a case, whether that be through negotiations or during motions or at trial. It is infinitely more difficult to represent a client who you know to be guilty. That is why I said (in another comment) that I know people who will refuse to ask their clients about guilt/innocence in order to preserve (falsely, in my opinion) their candor to the court.
See, but that is where you and I disagree. If we had more of that “criminal administration system,” I think we could end up with a better system of justice when it comes to closer cases.
I did not say that a prosecutor would be thoroughly convinced of something without evidence. I said that a prosecutor might be thoroughly convinced of something, yet lack the ability to prove it at trial.
Take, for instance, the extremely common “bitch ain’t testifying” defense. There are numerous situations where this sort of thing plays out. As I said, it really is extremely complex. And while crime still is an aberration in society, it is not an aberration in the criminal courts. After a while, both sides begin to recognize patterns – that is why experience is important.
When the prosecutor has so little leverage and faith in the case as charged (and the defendant is not such a bad actor) that the prosecutor will offer that kind of “discount” then yeah the pressure is on the defendant to waive his/her right to a trial. Even (maybe especially) the defense lawyers who hung around the court and practiced out of their pockets would call B.S. on an APA that didn’t have a real shot on a gross overcharge. If the defendant were on bail, that kind of case could be delayed until the APA retired.
I personally only saw one case that was absolutely on point. The judge’s plea taking litany (do you understand that you don’t have to testify, that you can have a jury, that a lawyer will be provided etc etc) ended with “Are you pleading guilty because you are guilty?” The defendant maintained his innocence, had a minimal criminal history and had been unable to make bail. The prosecutor offered a reduced plea with credit for time served. The choice was to wait for trial with some risk of conviction or go home that day. The defendant agreed to the deal if the judge would “forget” that last question and not make him say he was guilty.
Perhaps I’m still just real sore for losing 8 months of my life and thousands of dollars over something that even the judges looked at and did a head tilt.
Thank you. Exactly.
When we prosecutors file charges — a grave responsibility that we take very seriously — we don’t just pick a name out of the phone book.
We must have articulable reasons to believe that (1) a crime was committed and (2) this particular person committed it.
In my 27 years in my office, competence has never been measured by how many trials one has won, or what percentage of trials have been won.
Instead, competence/excellence has been measured by:
You obviously have experience in this and I do not. When the defendant is guilty, presumably the majority of the time, I see how what you describe plays out. But when the defendant is innocent I still suspect it works as I imagine. It might not even be conscious. I realized this in civil, not criminal context but I think it would be a similar dynamic.
On the other hand I had a lawyer friend say he much preferred criminal defense law versus civil because it was- he said- less emotional and more clear cut. Based on the evidence, ” Either they have you or they don’t.”
I would have believed this entirely before I experienced the system.
This is, in fact, what happens in some of my cases.
Most of my cases are what you might call “slam dunks” . . . and those usually plead guilty quickly, and the only issue is the amount of punishment.
But, some of my cases are exactly as Ryan describes here: On the one hand, based on everything we know about the case , it is clear that the defendant is clearly guilty. However, due to many possible evidentiary issues or a combination thereof (a material witness is unavailable, evidence was lost, the victim is unsavory, defense counsel is the best that money can buy, etc., etc.), there is a decent chance the jury might acquit.
In these cases, would you have me just dismiss the case, and let the defendant walk away?
I’m talking about the other end when there is just a chance the defendant is guilty (because anything is possible) and everything about the accused points to this being absolutely out of character. What would you expect to normally occur in that instance?
The courthouse crowd, criminal and civil trial lawyers both, are motivated by ego and reputation more than most professions. The nature of the work is such that everybody knows who is competent and ethical, down to the smallest details. The APA’s careers depended on that reputation whether they made a career there or left for the private bar. The run-of-the-mine criminal defense lawyers had to at least exhibit good-faith, reasonable competence to the extent of knowing the system, and to cultivate a reputation on the “street” for getting at least the going rate on the plea bargains. It gets to a pretty high level on the defense side before the clients actually expect a dismissal or acquittal for fees paid.
Prawn, I understand and sympathize with your case. But I can’t help but detect a degree of bitterness that seems to be unnecessarily expanded into the broader argument. In your case, the prosecutor ultimately dismissed, is that not correct?
But more broadly speaking, crimes are very often out of character. On the one hand, we demand due diligence from prosecutors (and when they end up getting rightful convictions, we’re happy), but on the other hand, I think we have somewhat unrealistic expectations. There are so many defendants who come with some form of “but I would never do something like that,” but nobody has perfect knowledge. An accusation is virtually always cause for some level of follow-up. Remember the numbers of times when accusations are made and we complain that the police/prosecution did nothing; we are working with the very difficult task of having to weigh competing interests and a public that demands perfection.
If I all have is that there is “just a chance” that the defendant is guilty, I’m not going to file the case in the first place.
If that kind of case has already been filed by someone else, and lands on my desk, I’m going to scrutinize it and analyze it from every angle, trying to figure out why it was filed. If I then still think that there’s only a chance that he’s guilty, I’m going to “dump” (dismiss) it.
If “everything about the accused points to this being absolutely out of character,” I’m going to dig into that . . . because I don’t prosecute innocent people. In other words, I’m going to try to (1) make sure he actually did it, and (2) determine why this guy would do something that appears to be out of character.
On this last point: as a Christian, I believe that anyone is capable of anything. (Who thought murder consistent with O.J. Simpson’s character? That happy guy, the big smile, running through airports? Or, rape and Bill Cosby?)
As Solzhenitsyn wrote, “The line between good and evil goes right through the middle of every human heart.”
I can’t understand how any case could result except where either an arraignment judge or a grand jury found probable cause, which is much more than a “chance the defendant is guilty”
Apparent facts discovered through logical inquiry that would lead a reasonably intelligent and prudent person to believe that anaccused person has committed a crime, thereby warranting his or her prosecution, or that a Cause of Action has accrued,justifying a civil lawsuit.
The issue of abuse runs deeper.
How many people are nailed for secondary or tertiary offenses – like telling what they thought was right to a federal employee, only to be strung up for “making false statements.”
How can citizens trust the system when the system is rigged to nail innocent people for something, even when insider trading (for example) cannot be proven.
I’ve got more work than I can handle. I’ve got too many sincerely guilty people to prosecute, to waste my time trying to prosecute innocent ones. I don’t have the time or creativity to “make up stuff” simply to get a stat.
Only after dragging me to the very edge of ruin. How many people can’t claw their way to a stop before sliding over the precipice? I understand that the very vast majority of people in prison should be there, but this post is not about them. It is about that tiniest minority who shouldn’t be there but are because the system as it exists (and is necessary for the vast majority) is inadequate for them. How do we create a system that can both convict the guilty and acquit (or leave the hell alone) the innocent without getting it wrong as often as it does now?
I understand the “no harm, no foul” attitude, but there was significant and lasting harm. You and the other attorneys here are in jails and courts all the time. It’s just normal for you. For those who don’t even get pulled over for speeding or incomplete stops, every second in contact with the system is an eternity through the looking glass.
If only you had been my prosecutor. When I asked my attorney why they were wasting time on a case that was marginal at best his reply was that the court was looking to fill the dockets. I’m so glad to know my entire existence is but filler to some.
Well, if we want to open a whole new can of worms, we could talk about Tom DeLay, Scooter Libby, maybe Martha Stuart where political considerations and/or the desire to make an example of a high-profile individual did motivate prosecutors to abuse their power.
That’s a fair question.
Let me ask you this: without getting into the details, please look back, and (if you can) put yourself in the shoes of the prosecutor who filed the charge(s) against you. Please be as objective as possible. If you were a neutral, impartial prosecutor, in possession of all the facts that he/she had at the time, but only those facts, no more and no less . . . would it be unreasonable to file those charges? Why/why not?
Or Ted Stevens. Are we to believe that such abuses of power only occur when high profile people are the accused, or is it safe to assume that the line between good and evil runs right through prosecutors’ hearts as well?
Well, that goes back to my earlier post, about what appears to me(IMHO) to be overreaching and unfair pressure by federal prosecutors. Makes me wonder if there’s more of a political agenda at that level.