Would Obama Recognize Criminal Justice Reform If It Stuck Him In The Eye?
The Marshall Project’s Bill Keller (former editor of the New York Times)
had a golden opportunity—and he blew it. Today’s panel on criminal
justice reform, filmed at the White House and live-streamed on The
Marshall Project’s website, had the potential to inform the public of
the real and hidden problems that plague our state and federal justice
systems. But the wrong people were invited to join Keller and the
President, and the conversation suffered for it.
It
is sometimes said by us criminal defense lawyers – with a dose of
cynicism – that in the halls of justice, justice is often done in the
halls. What we mean by this tongue-in-cheek phrase is that the informal
processes among prosecutors, lawyers, defendants and witnesses has more
to do with whether true justice is rendered than any of the phenomena
discussed by Keller and the panel. By inviting only higher-ups to engage
the President, Keller limited the panel to discussions of macro policy
and left out how those policies play out on the ground – particularly
the ways that prosecutors routinely misuse their power.
Indeed,
it is true that our state and federal justice systems over-incarcerate
by a huge margin, and it is one of America’s greatest shames that we
have the largest prison population in the world. But all of the reforms
discussed by President Obama, Colorado United States Attorney John
Walsh, and Los Angeles Police Chief Charlie Beck belie a central
scandal: a vast number of defendants are prosecuted for either (1)
engaging in conduct that should not be criminalized at all, or for (2)
acts that they did not commit but which a rewarded witness fingered them
for. Nor did the discussion take into account (3) the thousands of
people serving sentences for violations of criminal statutes so vague
that no person of ordinary or even elevated intelligence – including
many lawyers and judges – would instinctively consider crimes.
These
structural defects of the criminal justice system will continue to
result in over-incarceration of our innocent fellow citizens, even if
all of the reforms discussed at Keller’s White House extravaganza come
to pass. The reforms mentioned at the panel – the reduction of long
sentences, the targeting of only the “worst-of-the-worst,” an increase
in federal community policing grants – will only put a dent in the
problem.
The panel only briefly
touched upon the toxic plea bargaining culture that has developed
throughout the country. U. S. Attorney Walsh proposed that
mandatory-minimum sentences be reserved only for the most violent
offenders. But he failed to mention a practice that goes hand-in-hand
with these sentences: government cooperation in exchange for lower
sentences. Endowed with the immense power of imposing long prison
sentences, a prosecutor can single-handedly get a defendant to say
almost anything about almost anybody. Such witnesses, as the saying
goes, will “not only sing, but compose.” Many an innocent defendant has
gone to prison for decades based on such bought testimony of dubious
accuracy.
The White House
discussion also failed to address the kinds of crimes such as
“conspiracy,” violation of “national security,” or “fraud” – that are
not defined with sufficient clarity so that a typical citizen can
discern what conduct is allowed and what is prohibited. There is an
ancient precept of the English common law that a person not be
designated a criminal unless he intentionally and knowingly violates a
clear legal requirement. Too many people are prosecuted today, mostly in
the federal courts, who have no idea that they violated some obscure or
vague statute buried in the federal criminal code. (I wrote a whole
book on the subject, my 2007 volume entitled Three Felonies a Day: How
the Feds Target the Innocent. My thesis was that the typical American
arguably commits three federal felonies a day without even knowing it. I
guess the President never got around to reading my book.)
Once
during the discussion U.S. Attorney Walsh complimented the President on
his vast command of the issues in this sprawling area of law and life.
Chief Beck reiterated the compliment. But in reality, none of the
panelists, nor the host of the panel for that matter, really appeared to
understand the deeper ills of our state and federal criminal justice
systems. Perhaps this was due to the panel’s utter and obvious lack of a
member of Washington D.C.’s Public Defenders office, or an ACLU
attorney, or Washington Post columnist Radley Balko,
who covers these issues in detail week after week. Without these sorts
of panelists, this “conversation” on criminal justice was rendered
completely asymmetrical and incomplete from the outset.
We
not only incarcerate too many defendants for too-long periods, but we
convict and incarcerate a vast and largely unknown number of individuals
who are in fact innocent of crime properly understood. The system is
broken, yes, but in many more ways than we heard about today.
Harvey Silverglate, an occasional WGBH/News contributor, thanks his research assistants, Samantha Miller and Timothy Moore, for their assistance in the preparation of this piece.
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