The Ferocity of U.S. Criminal Justice

Towards the end of a criminal trial in which a law partner of mine was defense counsel, he was approached by a journalist from a German newspaper who had been observing the trial. She asked him why American criminal justice was so ferocious towards defendants. The question is a good one. Our system is, in fact, anti-defendant to a degree perhaps unique in the civilized world. The German journalist’s question highlights a great divide in perception, for if you raised the subject of criminal justice with a random citizen of the United States, the question you might hear would be: “When are the courts going to close the loopholes and stop being revolving doors for criminals?”

The popular view is that the U.S. criminal justice system is extraordinarily lenient towards the accused, a view only recently a bit tempered by the realization that this may not always be quite so for black and other minority car- drivers/joggers/suspects/detainees/defendants/prisoners . (There is a parallel increase in the number of citizens who realize that the system is sometimes particularly lenient towards white police officers accused of killing or otherwise abusing black and other minorities in the course of investigation, arrest, or custody.)

Overall, the folk understanding is that the guilty are routinely freed because of minor mistakes in search and seizure procedure or the taking of confessions. If not so benefited, still, the bad guys plea bargain for meaninglessly light sentences. At trial those who can afford any sort of decent lawyer are often acquitted even though guilty as sin, abetted by the presumption of innocence and proof beyond a reasonable doubt. Our procedural laws and our judges are perceived as bending over backwards to give defendants more than a fair shake.  That a German should call this system “ferocious” is hardly to be borne.

Yet, in this difference of perception I will argue that it is the German who has it more nearly right. If I am correct about this, I may fairly be required to explain how the popular American view of our criminal justice system can be so far off the mark.  Why is there such false consciousness about the criminal justice system? That shortly.

A Jury of One’s Peers

Let me start with one of the constitutional bulwarks of our due process advertised to set American criminal justice on a higher procedural plane than some of the inquisitorial systems on the Continent: the guarantee of a trial by jury, set out in both Article III and the 6th Amendment.

Legal developments have drained this fairly clear constitutional language of much of the meaning it would have had for an early 19th Century American. A jury in the English tradition had a wide power to judge both the facts and the law. Its function was not simply to decide what happened, but to decide if what happened was a wrong of the sort the law did and should take cognizance. Jones might be acquitted even though he punched Smith, if the jurors concluded that Jones had been sufficiently provoked by the loyalist Smith’s covert acts of sabotage against preparations for the Boston Tea Party. It was understood that jurors could not only decide whether a defendant’s conduct was within the letter of the law, but whether it was within the spirit of the law as they understood that spirit.

That is to say that jurors then had an important function that they no longer have, at least officially. Judges at all American criminal trials tell the jurors something along the following lines, “You are judges of the facts, and I am the judge of the law.” In effect they are told that the judge will decide whether such and so conduct violates the law. The jurors’ job is only to decide if the defendant did or did not do such and so with this or that culpability (mental state such as intent, recklessness, negligence). 

Certainly, jurors are not given the following legal information: “Whatever you decide was the defendant’s conduct, you can vote to acquit simply because you do not believe that justice will be served by convicting this defendant of these charges. If you do this, no court will be able to overturn your acquittal, despite the fact that you rendered it in clear defiance of my instructions as to your function and the law. Moreover, you cannot be punished for rendering such a verdict.” 

No jury is told that they have this power of “jury nullification” even though it is perfectly clear that they do have it as a consequence of the Double Jeopardy Clause and the common law tradition against punishing jurors – a tradition going back to William Penn’s 1670 case in England. (Notice that I say “power” of jury nullification, rather than “right,” in the interest of tabling a number of interesting and consequential, but pixel consuming, issues.) 

The door on jury nullification instruction in New York was slammed shut in the Bernard Goetz, subway vigilante, case. A later partner of mine asked for the instruction then given by some but not all judges in New York County:

If you do not find beyond a reasonable doubt that the defendant is guilty of a particular count of the indictment, you must vote to acquit with respect to that count. If you find beyond a reasonable doubt that the defendant is guilty of the count, you may vote to convict him with respect to that count. (My emphasis. I do not recall any judge who gave the pronouncement with that emphasis).

The defense asked for this “may” in the last clause. The trial judge charged “must” and was upheld by the NY Court of Appeals (NY’s highest court). Even before this final development, it had been the basis for a mistrial and sanctions for a defense lawyer in New York to suggest that the jury should or could acquit even though defendant’s conduct fell within the prohibitions of the statute.

The first Justice Harlan wrote a very long opinion in the 1895 Sparf case against the necessity of informing jurors that they may judge the law. The dissent, however, had the better of the historical dispute. Fluent speakers during the ratification period understood the word “jury” in a way inconsistent with current jury instructions. (For the interpretational theory on which I base the conclusion that Sparf was wrongly decided see “A Textualist Approach to Legal Interpretation,” http://lawrencecrocker.blogspot.com/2014/06/here-is-draft-of-paper-on-legal.html.) 

Juries are also not so much the defendant’s peers as they might be. The Batson case (1986) held that prosecutors could not discriminate against jurors on the basis of race in using peremptory challenges. This has been expanded to ethnicity, although the case always cited for that proposition, Hernandez v. New York (1991) is less clear than it might be as to how far its ethnicity-as-proxy-for-race rationale would extend. (Language was central to that case.) A published opinion of a New York trial court took Italian Americans to be covered.

A prohibition on discrimination in jury selection is certainly plausible as applied to prosecutors, who act with the power of and in the name of the state. The application of this limitation to defense counsel in Georgia v. McCollum (1992), however, is not so obviously justified, and not simply because of the dubiousness of regarding defense counsel as a state actors. With this “reverse-Batson” decision, members of minorities, especially small minorities, lost their best tool for getting a community member on the jury.

Our firm had a Philippine client. Could we strike jurors of other nationalities to try to bring the one Philippine American juror in the panel into the jury box?  Apparently not under the reverse-Batson principle.  When these issues came up in the case, I had an associate pull a number of relevant New York and Federal cases. I found I could predict with unerring accuracy the cases on which the court would tilt towards the equality rights of the jurors and away from unfettered peremptory challenges.The questionable juror challenges that ended up being judicially upheld were all by prosecutors (reverse-Batson). Challenges that were held to be improper were made by defense counsel (Batson).

The Constitution guarantees that a federal trial will take place in the district in which the alleged offense took place. But that there will be a measure of peer-geographical fairness in the jury is not guaranteed. A Chicago survey found that 80% of defendants were from the city but nearly 55% of the jurors were from the suburbs.           

The Exclusionary Rules

Almost every American is under the impression that a great many guilty defendants escape their rightful punishment by being ushered through loopholes in the law by crafty defense counsel. The loopholes they principally have in mind are those of the Fourth, Fifth, and Sixth Amendment exclusionary rules.  On “Law and Order” about three fourths of all motions seeking to suppress evidence succeeded, and, if anything, more recent police dramas have shown yet more pro-defendant suppression ratios.

Now, I am no uncritical fan of the exclusionary rules. As devices for policing violations of constitutional rights they are only partially effective. They do create an incentive for certain, though by no means all, victims of illegal police activity to complain about that activity. As an incentive for the police to change their behavior, they do not work particularly well.

Late October is prime time for police officers to seek overtime pay to fund their family Christmas budgets. Waiting towards the end of his shift, the officer stops, a few minutes and a few dozen yards apart, three separate young men on New York sidewalks. The first two are clean, and go on with their lives. They will bring no complaints. The third time the officer gets lucky, finding felony weight cocaine. The officer gets his overtime.

Down the road he will likely be called to testify at a suppression hearing. If the testimony he needs to give under oath is not actually written out in a script, it is pretty well known by heart.  Should he not be quite able to give credibly enough his “reasons” for going into the suspect’s pockets, the defendant walks. Still, the overtime pay from the arrest will have long since been spent, and there may well be overtime for his unsuccessful hearing appearance as well. (Somehow scheduling often seems to work out so that hearing prep, hearing, trial prep and trial all fall outside the officer’s scheduled hours.)  There will be no serious repercussions against the officer. If the public learns of the case, many will regard the dismissal as just another case of an out of control liberal judge.

Let me be clear: excluding evidence in search and seizure cases does result in guilty people going free. There is, after all, contraband. Only the relationship of the defendant to the contraband is in issue, and that is usually fairly clear.

My one acquittal as a prosecutor came not from a suppression but from a near relative. The day after a robbery the victim selected two pictures from different drawers out of the many drawers of mug shots at the precinct. The two persons pictured were of the same age and lived in the same apartment building. One of them was arrested six months later, was picked out of a lineup, and identified at trial. Per New York law, however, I was not permitted to introduce evidence of the photo identification. Defense counsel argued reasonably and persuasively that identifications made six months after the event weren’t worth much, and I, of course, could not respond that the defendant’s picture had been picked out with confidence right after the crime. (If counsel had said, “There is no evidence as to identity that is not hopelessly beyond the period in which memory can be trusted,” that might have been sufficient to “open the door” to admission of the photo identification. He was too good a lawyer to make that mistake.) I certainly believe that a guilty man walked out of court on that day. Photo identifications are subject to abuse, but a case by case examination of reliability might well be better than the blanket prohibition that some states have. New York has since then dropped its broad prohibition.

The suppression of statements does not free the guilty as often as suppression of physical evidence. Confessions are often only the icing on an already well baked cake. Moreover, a surprising number of innocent people say things when arrested or in a grueling interrogation back at the precinct that help convict them.

Overall, exclusionary rules certainly do result in bad guys going free. The chief point for my purposes here, however, is that the phenomenon is far less important in reality than it is in the popular imagination. One study, albeit not very recent, of 7,500 felony cases in three states found that motions to suppress physical evidence were successful in fewer than 1% if those cases.( Nardulli, “The Societal Cost of the Exclusionary Rule: An Empirical Assessment,” 3 Am. B. FOUND. REs. J.585 (1983))

Bad searches and seizures result in the exclusion of evidence in federal cases even less frequently than they once did as the result of the statutory “good faith exception” to this exclusionary rule passed during the Clinton administration.

Almost anybody in the U.S. can recite phrases from the Miranda warnings. The language of these warnings should prevent arrested suspects from talking to police or prosecutors without a lawyer present. There is some public understanding that they do not always have this effect. Yet, the public doesn’t know the half of it.

When I was on homicide call in the Manhattan D.A.’s office, I was alarmed at the time that elapsed between the arrest of the suspect and when I could get to the precinct house with my video technician in tow. Surely, the suspect would have clammed up by then! But he never did in my experience, and rarely did in the experience of my colleagues.  The Miranda warning had usually already been given the suspect at least once. Then I would read it to him again, distinctly and with appropriate emphasis, and with the video camera going and the floodlight on. With all this hoopla surely he would become aware of the not very hidden implicit message of the warning: “Shut up until you have a lawyer.” Yet suspects plow right on through the warning to make their confessions.  As my job was to turn whatever the suspect wanted to say into admissible evidence, I held my breath when I asked the defendant, under the eye of the video, to sign the waiver of lawyer and the consent to speak to me. I could well have continued to breathe normally.

Given the obvious intent of the Miranda warning, why not a simple rule that arrested suspects are not to be interrogated without their lawyers present? The reason is obvious – because that would have been too effective. We could live with a ritualistic incantation of our respect for the advice of counsel, but not the reality of lawyer’s silencing their clients.

(Free advice: If you are ever taken into custody by the police, ask for a lawyer immediately and do it again in front of two or more people. Yes, you are innocent, and, yes, you may well be able to explain things well enough to be released. If police have gone so far as to take you into custody, however, they think they have a case against you. The situation is serious. Anything you would tell the police your lawyer can communicate without any risk that a poorly chosen word will complicate your problems. Once you have asked for a lawyer, the police cannot use anything you say against you unless they jump through small hoops well off the ground to get you to retract your request.)

False confessions are right up there with bad one witness identifications in convicting the innocent. British law provides for electronic recording of interrogations, time limits, electronic (usually now video) recording, and prohibits such deception as that the accomplice has confessed and implicated the interrogation subject. (See Police and Criminal Evidence Act.) In the U.S. deception, in itself, will not invalidate a confession. Frazier v. Cupp, 394 U.S. 731 (1969) It often shows up in false confession cases. The British rules are at best rare in interrogations in the states. 

The Wizardry of Zealous Defense Lawyers

There is another myth afoot, this one very largely owing to a case involving a former football player. It is that expensive defense lawyers can hypnotize jurors into acquitting the most obviously guilty of defendants. Belief in this myth is not much reduced by the fact that Harvey Weinstein, Martha Stewart, Bill Cosby, Mike Tyson, and Bernie Ebbers all had pretty competent and certainly very well paid counsel. It is true that in certain circumstances better lawyers will win cases that would otherwise be lost. It would be difficult to collect meaningful statistics on this. When defense counsel estimate the chances of winning an acquittal for a client, far and away the most important variable is whether the defendant is innocent of the charges.

Defense lawyers are portrayed as rigorously adversarial, but the reality is not so unequivocal. Even at trial the defense lawyer is governed by certain constraints. Although, through cross examination, they are permitted to make a truthful prosecution witness appear to be an abject liar, they cannot, per the ethic codes, put on a non-party witness whom they expect to commit perjury.

Even the defendant, who has a constitutional right to testify, should not get any support from his lawyer in lying to the jury. Although there are slight differences among the states, the most common pattern is the following. After I fail to persuade my client not to take the stand to lie, I ask for a bench conference and tell the judge that my client and I have a disagreement that goes to the core of the representation. I ask to be relieved. If the judge refuses, as she usually will mid-trial, I put my client on the stand. I do not, however, ask him questions to help bring out his testimony – as I have done with every other defense witness. Instead I ask him a single question that calls for a narrative. He then gives his entire testimony without any further questions on my part, beyond perhaps “anything else?” When I sum up at the end of the trial, I make no mention of the defendant’s testimony. How seriously do you think the jury takes the defendant’s testimony after that little song and dance?        

I have to admit that I personally found these rules on client perjury congenial. I was relieved that I had no duty, direct or indirect, to give any sort of support to false testimony. But as Monroe Freedman argued, this makes a fairly substantial inroad in the adversarialness of the process, and I could always be wrong in thinking the defendant wouldn’t be telling the truth. Perhaps he lied to me in our earlier conferences, and will now honor his oath.

A more important defect in the adversary process is the fact that so many criminal defendants are poorly represented. There are not a few criminal defense lawyers who are barely competent. In Manhattan in my time, there were some lawyers, who might have had a hard time making a living any other way, who hung out at the arraignment court picking up unrepresented defendants (the majority of arraignments). Public defenders are conflicted out if they represent a co-defendant, and sometimes there is no public defender there when needed. Some of these arraignment court lawyers were truly dreadful. It is my understanding that Manhattan is not alone in this respect

Yet I acknowledge that most defendants in criminal cases are represented by lawyers, often public defenders, who know their way around the courtroom and put in a perfectly competent, if sometimes routinized, trial performance. A far more serious problem is that these very good or pretty good lawyers do not have the time or the resources to do a proper job of investigating their cases. Great trial lawyers are not great because of their courtroom eloquence, but because of what is in their heads and their stacks of file boxes when they walk into court. Neither the Federal government nor any state gives the counsel for indigent defendants the resources to do the job in anything like the right way.

In fact, even when it comes to retained counsel only the wealthy defendants or defendants willing to mortgage their homes, and often the homes of family and friends, can afford the proper preparation of a trial.

Plea Bargains

It is an alarming fact that innocent people are convicted because they are poorly represented. More alarming is that most people who are convicted are barely represented at all.  Our official ideology celebrates our jury trail system. Put aside the problems of the powers and peer-ness of juries. The fact is that only a very small percentage of our criminal defendants ever see a jury.

We do not have a trial system of justice. We have a plea bargain system. Many felony pleas are urged upon the defendant by a public defender who has spent less than an hour becoming familiar with the case. The typical misdemeanor plea bargain is the result of a conference between lawyer and defendant lasting under five minutes in which the defender has no information beyond that hurried client interview and what appears in the charging document and the defendant’s rap sheet.

In the Federal courts about 95% of cases are plea-bargained. The percentage is a little less across the state systems, but in Manhattan, for example, almost no misdemeanor cases are tried, and, as far as misdemeanor jury trials go, you can strike out the “almost.” (B (lesser) misdemeanors in NY are tried by the judge alone.) 

How, is it that a system that guarantees a trial by jury has so few jury trials?  The answer is obvious. Defendants are given good incentives not to go to trial. They are given offers that are too good to refuse. In all but special circumstances it is irrational for a defendant to go to trial. Indeed, it is often irrational even for an innocent defendant to risk a trial. If it is not possible to convince the prosecutor that you are innocent, the chances are that it will be difficult to convince a jury.

It is true that the court will not accept a guilty plea unless the defendant “allocutes” to the crime under oath, setting out in his own words how his conduct matched all the elements of the offense. In many cases defense counsel must pointedly remind the defendant that unless he says what the judge and prosecution expect to hear, the plea will be rejected, he will go to trial, and face a stiffer punishment. (Sometimes these lawyer-client conversations may be influenced by the impossibly large number of cases to which the public defender is assigned or by the knowledge of the private attorney that the client does not have enough money to pay the bill that would be due after trial.)

I do not intend to suggest that most guilty pleas are from innocent people.The overwhelming majority of defendants are guilty of the charge pled to. I am confident, however, that very many allocutions are extracted from defendants who have objections to them, even as to the basic facts. There are a few criminal defendants who steadfastly refuse to give what they regard as a false allocution, most considering it part of the game. Many defense counsel think they have done their duty by making sure the defendant really understands what he is saying and that he is saying it under oath.

I concede that plea bargains bear on my ferocity thesis in two conflicting ways. Most plea bargains amount to coercive offers. They are coercive because they are so good that a rational innocent defendant will often plead. It is a dangerous criminal justice system that is so structured as to routinely, even if not so every frequently, convict innocent people.

Yet in saying that the offers are “too good” I am admitting, am I not, that the guilty are getting off easy by pleading? Yes, and no. They are getting off easy, but only against the background of the available alternative – going to trial and facing the high probability of an even more severe penalty. There are a few cases in which sentences are really too light, and many others in which they are relatively light in comparison to the punishments meted out to most offenders. (Some of the categories of lighter-side sentences are familiar: acquaintance rape, white on black murder, police on detainee assault, environmental crimes, tax fraud.) 

These exceptions, or semi-exceptions, should not obscure the fact that US criminal jurisdictions have raised  penalties well beyond those of our peer nations. The punishment for the defendant who insists upon exercising the right to trial has been made artificially high by the legislatures.

The problem of severe sentencing schedules is compounded by the tendency of many prosecutors to “over-indict.”  For example, it is typical for prosecutors to charge murder where there was at most manslaughter. In one of my former firm’s cases, the prosecution charged our client with intentional murder for stabbing the victim a single time in the thigh.That would have been overcharging even had the 6'8" 360 lb victim not been holding the defendant’s friend off the floor by his neck at the time. Of course, the jury will often not buy the overcharge. But the risk that they will is a powerful incentive to accept the plea bargain. 

Elected Judges

State court trial judges are almost all elected for limited terms. Facing an election it is never a bad thing to be considered "tough on crime," which translates into a pro-prosecution proclivity. Judicial conduct that the media, even the tabloid media, causally link to an acquittal in a celebrated case can be career ending, as can a "light sentence" as compared to the run of the mill sentence.

The Appellate Tilt

 In the year that I spent clerking for a Federal Court of Appeals judge, we saw several dozens of criminal appeals, both direct and by habeas corpus after the exhaustion of direct appeals. I do not recall a panel on which my judge sat overturning a single case. Decisions in favor of criminal defendants by the Second Circuit, the Circuit in which I mostly practiced, are so rare that we would become a topic of conversation around the office. 

The doctrine of “harmless error” on direct appeal is sufficient to prevent a retrial of all but the most deeply flawed trials. All the reviewing court need find is evidence in the record that convinces it that the defendant could have been convicted even absent the error. A very wide range of errors is excused, often on the basis of a breathtakingly one sided reading of the record.

“Collateral relief” is available after the exhaustion of appeals from a federal conviction, via a habeas corpus, or by a similar motion for a state case, first to the state and if that fails to the Federal District Court or to the latter court if the state direct appeal process has been exhausted. The basis of the motions is unconstitutionality of the proceedings against the defendant or, under certain circumstances, newly discovered evidence establishing the actual innocence of the defendant.

 As defense counsel I once made a newly discovered evidence type motion that I thought overwhelmingly strong on the point that my client could not have fired the fatal shot. This was supported by an affidavit by a forensic pathologist of national repute. (You would recognize the name.) The reviewing state court decided it was not worth so much as a hearing.

Under the terms of the Antiterrorism and Effective Death Penalty Act, it now may transpire that a federal court on review can conclude that the defendant’s constitutional rights were violated and that the defendant is probably completely innocent yet be barred from doing anything about it. One might wonder if the writ of habeas corpus has not been, as a practical matter, suspended despite Article I, Section 9 of the US Constitution.           

The Presumption of Innocence and Guilt Beyond a Reasonable Doubt

But isn’t, at least, the trial process itself conducted to give the defendant every advantage? She is presumed innocent. She must be found guilty of each and every element of the crime beyond a reasonable doubt.

Every experienced trail lawyer knows that these great advantages for the defendant exist largely on paper. It is rare that at the beginning of trial anyone in the courtroom with the possible exception of the defendant and sometimes her lawyer believes that the defendant is innocent, least of all, the judge. (You must remember that the judge sees an unending procession of defendants who are indeed factually guilty.) The police and the prosecutors have arrested and charged this woman. They are professionals doing their jobs. Probably she too is guilty. Human institutions have a hard time maintaining a fiction in the face of a largely contrary reality. The presumption of innocence is in this respect a fiction. It should and could, however, be a working fiction, like the ideal gas laws you remember from chemistry

Courts ought to go the extra mile to give the presumption more practical reality. A good starting point would be for judges not to treat defense lawyers as if they were nuisances in the way of the speedy and effective administration of justice. Then, we might dispense with the prosecutor’s solemn intoning of the indictment, “We the People of the State of New York, charge the Defendant with ...”.  More care could be taken to avoid the jury’s inferring that the defendant is incarcerated or from seeing that the court officers regard him as an immediate threat to everyone in the courtroom. (Some are immediate threats. I was prosecuting a man who overturned the defense table and lunged over it at the judge. Such behavior is rare, and its possibility can be handled with more subtlety. After this incident defense tables were bolted to floor.)

It would also be nice if all securities fraud suspects could be allowed to surrender, rather than being dragged out of their offices in shackles for the benefit of the media. More substantively, we could stop making it a quid pro quo for the defendant’s taking the stand that the jury be informed of his prior convictions.

Probably none of these things is going to happen any time soon, and as a result the presumption of innocence will largely remain a pious mantra rather than a living principle.

Proof beyond a reasonable doubt has only a little more reality than does the presumption of innocence. As every defense lawyer, prosecutor, and judge knows, this burden of proof is, as a practical matter, transformed into a simple preponderance (more likely than not) standard if the defendant takes the stand.  Once the defendant is sworn in there is one and only one question in a juror’s mind: Is the defendant telling the truth, yes or no?

Even if the defendant does not testify, the standard of proof may well erode. In particular, this tends to happen in the many cases in which it seems to the jury that the defendant “ought to tell his story.” If the defense is that the defendant was miles away when the crime happened, the jury will permit that to be established by other witnesses or physical evidence. If the defense must concede the defendant’s involvement, however, the jury will want to hear from him. They want to hear out of his own mouth why he thought he had consent or was only defending himself or that the swamp land was valuable. The prosecution is, of course, not permitted to argue or suggest that the defendant should take the stand to tell his story. However, the prosecution often gets away with suggestively pointing out that little or no evidence supports defense counsel’s theory of the case. The defense has every right to decline to satisfy the jurors’ curiosity, but it should anticipate that the jury may then not follow scrupulously what it may think is an artificially high standard of proof.

The defendant’s prospects in this regard are made worse if he does not have a conditional advocate within the jury room. This often comes down to race or ethnicity and brings us back to the “jury of one’s peers.” I do not think that jurors are usually biased in favor of one of their own, but they often will insist that one of their own get the benefit of proof beyond a reasonable doubt.

Several years ago my former firm represented a reputed Russian mob boss. The FBI believed that he was one of the top figures in Russian organized crime and was in Brooklyn to establish the U.S. division of the enterprise. They badly wanted to convict him, but had scant evidence of any U.S. crime.

As luck would have it, they arrested a couple of Russian con men who were running a securities Ponzi scheme.  The seed money for the operation was borrowed on false pretenses from a Russian bank. The loan had fallen into default, and the swindlers had no intention of repaying. When arrested, these con men were eager to cooperate in any way that might lessen their own prison time.

The bank, it turned out, had asked the defendant to see if he could help get the money back. On one evening mutual friends of defendant and swindlers, picked the latter up in Brooklyn and brought them, with their enthusiastic consent, to a nightspot in New Jersey. There they spent several hours drinking, eating, playing pool, and singing Russian songs. At one point during the evening the swindlers and the defendant were at the same table. The defendant asked them to repay the Russian bank, and the swindlers agreed. No one testified that any threatening language or threatening body language was used.

At our client’s trial for extortion swindlers testified that it was their view that when a man like this defendant makes a request, you have no alternative but to agree. They said that they felt coerced, not because of anything he said or did, but because of who he was. (Despite their supposed fear of the defendant, they never made the slightest effort to repay the loan.)

At the end of the trial, everyone was convicted of extortion, even the minor defendants who merely chauffeured the swindlers and who were playing pool when the fateful bank loan conversation took place.

Puzzled, we talked to a couple of the jurors by telephone after the trial.  "Why had they convicted everyone?  Had they believed the prosecution witnesses?" “No,” they said, our cross examination had destroyed the credibility of the swindlers. Why then the vote to convict? “Because we didn’t think you had disproved what the prosecutors said in their opening statement, about the defendants’ being mobsters.”

Here the jury ignored not only the presumption of innocence and proof beyond a reasonable doubt, but also the judge’s instruction that the statements of lawyers are not evidence. This might have gone differently had there been a Russian American on the jury. There was no one in the jury room to say: “These are my people. If they are guilty, let’s convict them, but we have to follow the judge’s instructions in deciding if they are guilty.”

There are instructions given by the judge to the jury that entirely undermine presumption of innocence and proof beyond a reasonable doubt: "conscious avoidance," "willful ignorance," and "missing witness," but these deserve their own discussion.

Mandatory Sentencing Schemes

The other anti-defendant biases of the system are amplified by the draconian schedule of punishments in both Federal and state courts, increasingly placed beyond any ameliorating discretion by the trial judge. (In United States v. Booker (2005), the Supreme Court, however, did take a step towards diluting the compulsive force of the federal Guidelines on the sentencing judge.)

In the states, legislation like California’s three strike laws mean that, following two priors, the theft of $60 in audio tapes can trigger life terms. In Ewing v. California, the Supreme Court in 2003 upheld a life sentence for a “third strike” theft of three golf clubs, rejecting an 8^th Amendment “cruel and unusual” challenge.

White collar crimes, in my experience, are often the result of businesspersons trying to get as close to the line of illegality as they can without going over it. Sometimes the U.S. Attorney’s Office thought the line to be in a slightly different place than did our clients. In pre-Guidelines days if such a case resulted in a conviction at trial, the judge would take into account that the conduct, though it may have involved a lot of money, was not very far over the line, and that the defendants may truly not have believed that they were doing anything technically illegal. The result would be a lighter sentence. As a result plea bargains in such cases were also typically generous.

With the Guidelines, the amount of money lost by the victims became the driving variable of the sentence, completely changing both the sentences after trial and the plea bargains. 

The Consequences

If I am right that the American criminal justice is systemically anti-defendant, you would expect there to be some statistical confirmation of that fact. Here are recent incarceration numbers per 100,000 of population.                       

 

United States	655
Canada	107
Mexico	163
England & Wales	140
France	105
Germany	77

The only industrialized country with an incarceration rate even approaching ours is Putin’s Russia with 346.  

Why the False Consciousness?

How is it possible that a system that is so thoroughly and demonstrably anti-defendant should be popularly regarded as coddling criminals?  A part of the answer lies in our media-centered political system. It is always good politics to run against crime. “Soft on crime” is a political kiss of death. So politicians find it very easy to vote, for example, to increase sentences, and hard to vote to decrease. The ratchet turns; sentences get longer and longer.

The imperatives of newsworthiness exacerbate the problem. Acquittals, being rarer, and sometimes scarier, make better news than convictions. A dismissal of charges on Fourth Amendment grounds of a dealer in possession of a hundred pounds of cocaine makes for very good story indeed.

Binging cop shows during the pandemic? Then you have seen how the victories of the guilty in suppression skirmishes add a nice mid-plot counterpoint to be overcome in the final victory of justice. I would not discount entirely the possible influence of the fact that the media and entertainment industries are owned and run by people whose families, friends, and acquaintances are not much threatened by an anti-defendant justice system.

Indeed, you and I might not in our heart of hearts feel comfortable with Franklin’s, “[I]t is better 100 guilty Persons should escape than that one innocent Person should suffer,” or even Blackstone’s 10 to 1 ratio.

The bad treatment of poor defendants is in significant part the effect of the underfunding of the whole criminal justice system. Judges are overburdened by their long calendars, but not as seriously as are public defenders who are not only overworked, but underpaid, and  also demoralized by their inability to investigate and prepare properly.

Looking more broadly, we have been so fixated on incapacitation and deterrence, that we rarely ask a question that would have been second nature to Bentham and the classical utilitarians: Is there a use for this $50 million dollars that will give us better crime control than spending it on a new prison?  Such promising new penological ideas as “day fines” go almost entirely untried in the US. Economic and social reforms that would almost certainly lower crime by treating its root causes are political non-starters.

Capital Punishment

Of the ten countries scoring highest in the U.S. News and World Report education ranking, the United States is alone in conducting executions. That there is a widespread perception that the U.S. criminal justice system is ferocious would be not very surprising for this reason alone. An argument can be made that capital punishment is deserved in some cases, and there is a considerably more controversial argument that in some settings it is an effective deterrent, saving more innocent lives than the (hopefully) guilty lives it takes. Still, state inflicted death is seriously out of step with the political morality of our peer nations.

Conclusion

We should not be too surprised that a European journalist saw US criminal justice as ferocious. It is a serious impediment to much needed reforms that at home the opposite view is so widely held.