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The Federal Conviction System
Over the years, Ricochet’s members who practice law have occasionally mollified our common predilection for lawyer jokes by providing examples of honest-to-goodness Justice in action. At the local levels, at least, American judicial systems seem to work now and then; even if other first-hand experiences among Ricochetti have been downright depressing.
Would anyone care to defend the federal criminal justice system? Mark Steyn has written many times that US courts at the national level boast a conviction rate that would impress brutal third-world dictators.
You have the “right to a fair trial,” but U.S. prosecutors win 99 per cent of the cases that go to court — a success rate that would embarrass Kim Jong Un and Saddam Hussein. Indeed, the feds win 97 per cent without ever going near court.
Are these statistics roughly accurate? Or does Steyn mistake a subset of cases or federal cases generally?
Steyn claims this is accomplished in some measure by piling on charges for procedural crimes and other crimes unrelated to the reason for the arrest. Some charges have more merit than others.
You’re facing 47 felonies adding up to 397 years in jail. So you agree to a plea “bargain.” Because otherwise you risk a jury that wants to show how Solomonic it is by acquitting you on 44 counts but convicting on three — enough to destroy your life. The U.S. Attorney operates on the same principle as the IRA, who, after the Brighton bombing, taunted Mrs. Thatcher that they only had to be lucky once; she had to be lucky every time.
Expenses are another reason nearly all defendants at the federal level agree to plea bargains. Is this an avoidable situation?
Was the conviction of Conrad Black emblematic of common procedural practices? Or can other perspectives from inside the federal system offer more confidence that real justice is normally served?
Published in Law
Sorry, I posted my comment before finishing reading your comments.
Regardless, what conviction rate do you expect? Or think is optimal?
That is the catch….enough evidence of guilty plea to what exactly? A procedure crime? Or an underlying crime of substance? As I have said before, never underestimate the State’s (big “S”) appetite for a fall guy. I give a Hallelujah shout every time a defendant takes a case to trial and doesn’t plead. Even if they are guilty as sin. You may think it is a waste of state (taxpayer) resources, but being forced to trial every now and then is the only thing that keeps many prosecutors actually doing their jobs and not descending into doing business as a “mafia-esque” deal you just can’t refuse. County DAs usually start out well enough, but often turn arrogant after a few years on the job. Federal prosecutors seem to start off arrogant. Prosecutorial discretion is a very, very powerful card to be holding. (Even worse, many DAs and prosecutors go on to be judges so the arrogance goes unchecked) Henry Silvergate opines that many of us commit 3 Felonies a Day and defends this proposition in his book about federal prosecutorial abuses:
https://www.amazon.com/Three-Felonies-Day-Target-Innocent/dp/1594035229?SubscriptionId=AKIAILSHYYTFIVPWUY6Q&tag=duckduckgo-d-20&linkCode=xm2&camp=2025&creative=165953&creativeASIN=1594035229
Like any sane person, I like a high conviction rate, granted ethical prosecutions and fair trials. There is no objectively fair rate.
Israel’s 93% might be pretty fair. Maybe it should be as low as the UK’s 80%. Our 99% seems too close to perfection.
The political show trials we read about are probably rare for now. But they nevertheless demonstrate another constant of human nature: political pressure and non-legal interests interfering with the usual methods of case selection.
Not all political corruption is national either. Even corporations have office politics.
Janet Reno had a pretty good records of excessive prosecution before Bill Clinton gave her the DOJ to play with. http://www.iwf.org/news/2432422/Janet-Reno-and-Her-Record-as-a-So-Called-Champion-of-Children
Before her appointment by Clinton, Reno was district attorney in Dade County. There she catapulted to national attention on the basis of her prosecutions of child sex abusers: the only trouble was that the cases on which she achieved her fame were phony from top to bottom.
Grant Snowden was a police officer, named North Miami Officer of the year in 1983, whose wife had provided day care in their home for 15 years. Under relentless pressure from Reno’s office (he was prosecuted a second time, after the first case was thrown out) Snowden was railroaded on spurious charges of sexually abusing a four year old and her 6 month old brother. Key to the conviction was the testimony of self-styled child-abuse experts Laurie and Joseph Braga (she had a PhD in speech, he in education)whom Reno installed in the D.A.’s office, complete with a special interrogation room for small children, from whom they elicited preposterous charges. Snowden was given five life sentences and served twelve years. Thanks to the well known efforts of the Wall Street Journal’s Dorothy Rabinowitz and the unsung dedication of attorney Robert Rosenthal, a federal court of appeals finally overturned Snowden’s conviction in 1998.
Waco and Ruby Ridge followed. And The Murrah Federal building was collateral damage.
https://en.wikipedia.org/wiki/Oklahoma_City_bombing
Don’t you see the inherent problem with pulling numbers out of the air that you are comfortable with when your argument is founded on the numbers? None of us has any basis for preferring any of those numbers. If it were 100% I’d agree there is a problem. But none of us has any idea what error rate should be observed in a properly functioning system.
I agree that we don’t know and expectations are mostly subjective. But I’m confident that 99% is too near perfection for a system that relies on so many variables from so many people with different motivations, interests, and limitations.
This isn’t a scientific challenge with definite solutions. The involvement of juries by itself makes a 1% error rate incredible.
And once again the McMartin Preschool case in L.A. County, in the 1980’s raises its ugly head. It wasn’t (isn’t – at last report one man remains in prison) a federal case, but it remains the epitome of injustice.
I’ve no love for the Federal Courts, and will take this moment to again remind everyone that the Federal Government should have no police force and should rely entirely on the states to enforce federal laws -of which there should be many fewer.
Though I think the actual problem is not the prosecutors, but the juries. For whatever reason, juries in the US tend to think that being indicted means you’re guilty, and that whatever a prosecutor says must be the truth. I think your 99% conviction rate can be explained by that phenomenon.
But a lot of convictions don’t even go before a jury, do they? They are the result of plea bargains.
Like any other endeavor that involves human beings there will be problems. Some human beings lie. Judges, prosecutors, defense attorney’s, police officers, defendants, witnesses, and even jurors are human beings, therefore some of them lie. Throw in personal beliefs, and agendas on top of the human flaw of lying creates more problems. One can only look at individual cases, rather than generalizing about abuses in the system. There are certainly abuses, but we should be careful about going down the road of; because one bank robber, or any other criminal that hasn’t been caught, and prosecuted, we shouldn’t prosecute one that has been caught.
The biggest problem with the way the justice system has evolved is that rather than gathering evidence and seeing where the evidence take the police and prosecutors, we gather just enough evidence to lead us in the direction of a certain person, and from that point on, the investigators pursue that suspect. Or even worse, we pursue people because we don’t like them. With the number of laws on the books today, it’s easy to get anyone you don’t like. Not even the president of the United States is immune to this phenomenon.
There’s a psychological trap that people fall into of wanting to prove their hypothesis, and we need to guard against it. Professionals don’t operate on or represent family members. That’s because we know there is an inherent bias trap in that situation that is not good for the person in need of help or the person giving help. We need to now recognize that there are other biases and pressures in professional life–such as a bias to make a name for yourself as a prosecutor–that impede justice. Otherwise, we are dealing with a new kind of tyranny–that of the professionals.
Years ago I had a babysitter, Althea, for my kids who was a really sharp kid. She was a straight A student all the way. She had a classmate whom she suspected the teachers were giving a hard time to just because they didn’t like her much. So Althea gave her friend a paper she was writing for another class. In other words, they turned in the paper at the same to two teachers. When they got their grades, Althea showed me the two papers: one had a sweet A+ on it, the other C-.
We have to be aware of our biases of liking people or not liking people and not allow those biases dictate our actions. This is true throughout all of the professions. Every single one, from law to medicine to education.
Excellent comment. This, by the way, is the (mostly) unaddressed problem of Progressivism, although it would be a problem even if there were no Progressivism. .
I would argue that the reason they get such a high conviction rate is because the vast majority of crimes that reach a level above clear and convincing proof are just abandoned. Exhibit A would be Mr Orange Man Bad who has a 50 year history of bragging about ignoring inconvenient laws and social norms.
Again, your discomfort with 1% is purely subjective. We could simply encourage more prosecutors to take weak cases to court and increase failed prosecutions to 10%. This would obviously be a much less fair justice system because it drags innocent people through the mud and overturns their lives, but you’d presumably consider that an improvement just looking at the numbers.
On the other hand, if we had a 90% prosecution rate today, and we then subjected prosecutors to additional scrutiny that prevented prosecuting innocent people 90% of the time, we’d be back at a 99% conviction rate. This is clearly an improvement on multiple grounds, but you would judge it as a regression.
(This is oversimplified since some portion of those are also false convictions, but I’m just illustrating the point.)
Of course the other side of the coin is false convictions, which is what you seem to be exclusively focused on. In statistics, these two possibilities are called Type I and Type II errors. Our goal is to minimize both, but they are at odds with each other. Without studying the actual cases you can’t really make a judgement about the overall fairness of the system merely based on the conviction rate.