Skeptic » eSkeptic » September 2, 2009

The Skeptics Society & Skeptic magazine




In this week’s eSkeptic, we bring you a very controversial article on the criminal justice system by investigative journalist Steve Salerno, who previously debunked the self-esteem and self-help movements for Skeptic. It’s controversial because the subject is so often politically divided between left and right on whether or not we are too hard or too soft on criminals.

Here Salerno explores some of the more controversial areas in the criminal justice system, bringing to the forefront talking points for discussion for our readers, some of whom turn out to be prisoners themselves, many of whom apparently read Skeptic magazine. One prisoner, incarcerated for life for a triple murder, responds to Salerno.

In my Skepticblog post this week, I provide my comments on his letter (quoting extensively from the letter, which we chose not to print out of respect for the families of his victims). Feel free to forward this week’s eSkeptic and Skepticblog, and/or the links to them.

Michael Shermer, Editor-in-Chief


Criminal Injustice
The Flaws & Fallacies
of the American Justice System

by Steve Salerno

Despite our faltering national output in other areas, “the United States,” the New York Times notes mordantly, “leads the world in producing prisoners.” At year-end 2007, about 2.3 million Americans were incarcerated in federal and state prisons and local lock-ups; the figure represented another annual increase in an ongoing series. With just 5% of the total global population, the U.S. warehouses an estimated 25% of the world’s prison population. By comparison, China — notwithstanding its totalitarian rule and a demonstrated willingness to ignore the basic human rights of its 1.3 billion citizens — keeps just 1.6 million people (1.2% 0.12%) under lock and key (versus America’s 7.6% 0.76%). “We not only have more people in prison per capita than anyone else in the world,” says celebrated defense attorney Gerry Spence, “but we have more black people in the penitentiary than in college.”

That America incarcerates a sizable contingent of its citizenry is one of two points in this overall subject area on which all can agree. The other is that the criminal justice system doesn’t work as well as it should. But that’s where the consensus breaks down, as inveterate hardliners square off against self-styled reformers, the former decrying “bleeding-heart justice,” the latter yearning for “punitive restraint” — almost all of them missing the bigger picture.

We frame debate over American jurisprudence in terms of a handful of well-worn clichés: institutional racism, cruel-and-unusual punishment, overzealous prosecution of so-called victimless crimes, the nation’s expanding war on “thought crime.” While these topics are worthy of discussion, to focus on them is to appraise a macro problem in micro terms. There are far deeper and more fundamental questions about our criminal-justice system and the assumptions on which it rests: questions about whether we’re punishing the right people for the right reasons, and even what constitutes a crime in the first place.

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Consider that still in 2009, America dispenses justice according to a Judeo-Christian hierarchy of crime and punishment that has remained largely unchanged for several millennia. Punishment bespeaks simplistic notions of good and evil, such as an eye for an eye, that may be unsuited to a world where abuses of power — including white-collar crime and official malfeasance — can have an apocalyptic reach and impact.

Item: Enron was once the nation’s seventh-largest company (2000 revenues: $100 billion) and, at least on paper, one of the most profitable. With the cooperation of the firm’s auditors, the now-defunct Arthur Andersen LLC, top corporate brass ran the company with a disregard for integrity and fair play that’s rare even among major corporate crooks. Enron’s spectacular unraveling cost 20,000 employees their pensions, college funds and/or life savings, and devastated thousands more John Q. Publics who were heavily invested. The ripple effect spread throughout the energy sector and the economy as a whole, initiating a “crisis of confidence” that, to some degree, remains with us today.

Item: At the height of the crisis on Wall Street in September 2008, New York Attorney General Andrew Cuomo bristled at rumors that “short sellers” — whose contrarian stock positions anticipate a sinking market — were adding fuel to the fire by diabolically (and illegally) spreading misinformation that made the crisis sound even more dire than mainstream reporting would have suggested.

Cannot white-collar/financial crime of such disruptive magnitude be construed as a far greater offense against the social contract than any single crime against the person, up to and including homicide?

“I would agree that corporate crime has a much wider impact,” says Spence, who bars corporate attorneys from his famed Trial Lawyers College because, he explains, “I don’t want to help them be better at preventing the average citizen from getting justice.”

One might expect that stance from Spence, who came to prominence in 1979 by winning a seven-figure civil judgment on behalf of Karen Silkwood’s heirs (Silkwood was a union activist who died under mysterious circumstances while working at a nuclear plant in Oklahoma).But there’s at least qualified agreement from some surprising sources. “You raise a good point,” says Jeffrey Modisett, former attorney general of Indiana and now a Los Angeles attorney specializing in pretrial mediation. “Should we do more to consider the quantity of the crime as much as the quality — the breadth as well as the depth?”

As an “interesting example,” Modisett cites Bernard Madoff, the Wall Street financier who’s accused of bilking several thousand clients out of an aggregate $50 billion, wiping out some investors entirely. “That has already led to two or three suicides and absolutely ruined the lives of a large number of people,” observes Modisett. “I recall that when the late Paul Tsongas ran for president [Tsongas unsuccessfully sought the Democratic nomination in 1992], he wrote a little blueprint where he was against the death penalty in general — he didn’t believe in it for murder — but he could see a death penalty for crimes against society. If he were still alive, you might ask him, ‘Would you include a Bernie Madoff in that?’”

Similarly, in removing Governor Rod Blagojevich from office, the Illinois legislature imposed what it called its “political death penalty,” barring Blagojevich from holding state office forevermore. The ominous phrase clearly recognizes the extremity of the deposed governor’s offenses, leading one to wonder if a more literal fate might not be inappropriate for a man found guilty of so egregiously violating the public trust. At a time like this, what could have a more corrosive effect on the social fabric than a loss of faith in public officials?

All of which begs further questions about whether behavior that society labels “criminal” is necessarily more abhorrent than certain other behaviors for which no formal penalties exist. In a purely humanistic sense, which is worse: stealing a six-pack of beer from a 7-Eleven one time, or verbally abusing your wife, children and friends daily? For that matter, it could be argued that corporate raiders and stock speculators — even when they break no actual laws — cause widespread job loss and severe economic dislocations in their pursuit of personal wealth and/or “maximum shareholder value.” One thinks of the dollar-driven ruthlessness of 1980s M&A (Mergers and Acquisitions) specialists Carl Icahn and Ivan Boesky, prototypes for the Gordon (“greed is good”) Gecko composite character in Oliver Stone’s cynical cinematic period piece, Wall Street.

Not unrelated is the selective enforcement that supports social engineering. To look at just one example: Certainly it’s improper for a male boss to grope a female assistant. However, wouldn’t it seem at least as bad for a boss of either gender to make life hell for all employees by being boorish, demeaning, imperious, and generally insufferable? It’s reasonable to wonder why one category is unlawful and the other not. Tellingly, career advice aimed at workers stuck with a garden-variety insufferable boss assumes that such a predicament is just part of everyday life, and that subordinates must learn to “manage” the situation.

“Is your boss a tyrant of Machiavellian proportions?” writes Bob Weinstein, author of I Hate My Boss: How to Survive and Get Ahead When Your Boss is a Tyrant, Control Freak or Just Plain Nuts. Weinstein quotes a study by the Employment Law Alliance (ELA) suggesting that half of all workers have been targeted by a “bully boss.” Only 7% of these bosses are “censured, transferred or fired,” he notes. In some hard-driving corporate cultures, a tyrannical boss advances quickly through the ranks because he or she is perceived as someone who “keeps workers on their toes.” New York Times writer Benedict Carey put it this way in opening a column inspired by the film The Devil Wears Prada: “The cold stare, the caustic insult and the bugeyed explosion are among the most easily accessible techniques for male bigwigs to humiliate and frighten underlings. Each method is in keeping with alpha behavior, and fits of rage in particular are expected of bosses in many organizations.” Carey goes on to make his main point: that these withering, authoritarian mannerisms are just as likely to be found in today’s female bosses (echoing the findings in the ELA study quoted by Weinstein).

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No matter. All of that, apparently, is “OK” as long as bosses don’t include among their harangues a careless sexual remark that makes one particular employee uncomfortable. “I think we have to pay the price here to bring things up to where they should be,” says Modisett. He says his background in prosecuting rape and domestic violence cases leaves him “more sensitive to the fact that we need a bright shining line when it comes to the treatment of women.”

Trial attorney Roy Black, best known for his defense work on behalf of Rush Limbaugh and William Kennedy Smith, sees it differently. Widening the lens, he argues that the micromanagement of political correctness is evidence of a generalized phenomenon that too often yields confused, inconsistent public policy. “Whenever there’s a case that catches the public imagination, everybody jumps on it instead of thinking about how this skews the balance of crime and punishment,” offers Black. “Hinckley shoots Reagan and is found not-guilty-by-reason-of-insanity. People are outraged. Now how many people are found not-guilty-by-reason-of-insanity? Nobody. It’s one of the hardest defenses to mount! Still, people are outraged, so we have all these new codes and procedures that make it even harder to prove insanity.” (Geoffrey McKee, Ph.D., forensic psychologist and author of Why Mothers Kill: A Forensic Psychologist’s Casebook, has examined over 500 murder defendants, among them Susan Smith, who drowned her two boys by driving the family car into a lake. McKee notes, “The pressure on the [psychological] evaluators working her up was enormous. The mentality was, ‘You have to find her competent. She has to be responsible for this.’”)

Because these common overcorrections deal in gray areas of behavior and law, says Black, their absurdity and arbitrariness are easy to miss. That said, every now and then a case comes along where the folly of today’s shotgun-style “fixes” seems crystal-clear. Texas murderer Andre Thomas cut out his victims’ hearts and put them in his pocket, then, for good measure, plucked out his own eye and ate it. Nonetheless, Thomas was found competent to stand trial under protocols now governing sanity rulings. Thomas later ate his remaining eye.

“We have a phrase in law, res ipsa loquitur, the thing speaks for itself,” says Black. “[Thomas] certainly qualifies, or so you’d think. But with some of these judges, it’s not that self-evident.” Legislators, too, says Black, “react to one-time things as if they indicate a universal problem. When they run for reelection, they want to be the person who passed Megan’s Law or Bobby’s Law or whatever. It’s mostly for show.”

Babies and Bathwater

It is curious that in a nation where so many laws are passed “for the children,” the legal system itself is so quick to give up on America’s youth.

“Fear of out-of-control juvenile crime and a coming generation of ‘super-predators,’ compellingly if erroneously described publicly and to Congress in 1996, has undermined the traditional practice of treating young offenders as different from adult criminals,” poses the overview of a 2000 study, Prosecuting Juveniles in Adult Court: An Assessment of Trends and Consequences.

Amnesty International estimates that each year in the U.S., 200,000 people under age 18 see their cases adjudicated in adult courts. In total, at least 2,225 inmates are presently serving LWOP (Life in Prison Without Parole) for offenses committed before age 18 — nearly 60% of whom received that sentence for their first criminal conviction. Of the 42 states that currently permit the imposition of LWOP on minors, 12 set the minimum age for such unforgiving punishment at somewhere between ages 10 and 13. Ten states set no minimum age at all.

In some local samplings, the data are startling. Between 2002 and 2005 in Ventura County, CA, a total of five juvenile cases were referred to adult court. That jumped to 10 in 2006 alone. In 2007 the number soared to 27 — more than quintupling the three-year baseline period. Florida, always in the vanguard of aggressive prosecution, was one of the first states to permit prosecutors to direct-file juvenile cases, and in one year studied, 1998, processed 6,525 such cases.

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McKee expresses deep concern over the “increasing criminalization” of the juvenile system. “I’ve been in this for over 30 years,” he says, “and I’ve seen the pendulum swing from a very compassionate, humanistic juvenile court to a very vindictive court.”

Modisett explains that evolution as follows: “We went through a period where we felt crime was getting out of control, so we passed these laws — many of which I supported. What has happened is, the laws cast such a wide net that yeah, we’ve done a good job of catching the worst offenders — but we’ve also caught a lot of people who didn’t deserve it. Those of us who were pushing for this were thinking, ‘I want the tools so if I really think a kid is incorrigible we can keep him off the street.’ But the law doesn’t have any practical way of distinguishing between that kid and some other kid. There has to be some thought that’s put into the prosecution of juveniles.”

The argument that “if a child can do an adult crime, he’s shown that he’s grown up enough for adult penalties” teeters precariously on a pyramid of flawed suppositions:

  • It assumes that a severe outcome automatically warrants a severe punishment. A few years ago in Indianapolis a 7-year-old boy brought a gun to school, pointed it at a classmate he disliked and pulled the trigger. Thankfully the weapon jammed. But the misfire was a quirk of fate. Suppose the weapon had gone off. Should we charge the boy with capital murder? It’s not quite as bizarre as it sounds. “We saw kids 14 and 15 charged with death penalty cases,” says Spence, “until the Supreme Court finally got around to dealing with that.” The point is that horrific outcomes can occur in situations where the responsible party lacked any true comprehension of the possible consequences of his behavior (as is also the case when youngsters get behind the wheel of their parents’ car and take it for a spin). Society’s need for catharsis or “closure” should not dictate the justice system’s handling of these episodes.
  • It conceives criminality as a function of maturity, a paradigm that runs counter to all known facts about emotional development. Columnist and family counselor John Rosemond, author of Parenting by the Book, reminds us that no one is more lacking in conscience than a small child. “Every infant,” Rosemond has written, “enters the world carrying a Pandora’s box containing unbridled narcissism: the ‘I want, I deserve’ impulse that drives every antisocial event.” Although the science in this area continues to evolve, the landmark work of Piaget, Kohlberg and others strongly suggests that only after age 8 or 10 do children internalize morality and begin to display authentically selfless, empathic behavior. Prior to that their actions are guided chiefly by self-interest: “I better not do this or else Mommy will punish me.”

Therefore, the real problem, one could argue, isn’t that too many kids are turning prematurely into adult lawbreakers; it’s that too many adult lawbreakers never left childhood.

The classic legal dichotomy between juveniles and adults assumed that young people are not yet “fully formed emotional wholes,” as one state code put it before its legislators fell in step with today’s more austere approach to juvenile justice. Adolescence is a time of rebellion, experimentation, and hopefully learning from one’s mistakes. Critics of U.S. policy towards juvenile transgressors wonder how a child is supposed to learn from his mistakes if the very first mistake deprives that child of his freedom.

Compounding the unfairness is evidence that young offenders are ill-equipped to avail themselves of their constitutional rights as defendants. Looking at 1,400 offenders between ages 11 and 24, the John D. and Catherine T. MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice concluded that younger defendants have as much trouble understanding their legal dilemmas as the (rare) adult ruled mentally incompetent to stand trial. This not only makes the juvenile offender more susceptible to manipulation and self-incrimination during questioning, but undermines his ability to participate meaningfully in his defense.

Moreover, for offenders in this category, there’s no going back: According to the loose edicts of “once an adult, always an adult” prosecution, a child waived into adult court invariably is processed as an adult from then on. It’s not beyond the realm of possibility for a youth to achieve “habitual” status under various three-strikes laws [see below] without ever achieving true adulthood. Accordingly, in his 2006 book Saving Children from a Life of Crime Cambridge University professor of criminology David P. Farrington emphasizes the importance of early intervention in preventing at-risk juveniles from tumbling into a cycle that has only one possible outcome.

Though the 2005 Supreme Court ruling to which Spence alludes is one of several recent events that indicate that the tide may be turning, the endemic realities of politics continue to obstruct reform. “I can only say this because I’m not running for office,” confesses Modisett, who left public life in 2000, “but if you’re a public official and you have these tools, you’re going to want to use them just in self-protection, otherwise you’re ‘soft on crime’ and you’ll never get elected again.”

Trials as Morality Plays

Devotees of 48 Hours, Dateline, and 20/20 know that these so-called newsmagazines feature crime stories as staple content. But as such shows resolve to the obligatory guilty verdict, the careful observer may wonder whether large chunks of the prosecution’s case were accidentally edited out. It’s an impression that’s often heightened when the correspondent then convenes a representative cross-section of jurors to question them on their deliberations — and it becomes clear that they gave decisive weight to “evidence” that was, at best, peripheral to the facts.

Though examples are legion, one major umbrella category comprises inferences drawn from the defendant’s demeanor and/or behavior, either in the aftermath of the crime or at trial. It’s one thing if the defendant was observed in the backyard at midnight tossing machetes and bloody towels into an oil drum, but of what legitimate probative value is testimony from cops or witnesses that a woman “didn’t act the way you’d expect someone to act when she learns that her spouse was murdered”? Case in point: Cynthia Sommer, a young San Diego housewife, was accused of poisoning her husband, Todd, who died suddenly in their home in 2002. The prosecution placed damning emphasis on Sommer’s partying lifestyle and the fact that she allocated $5400 of Todd’s $250,000 in life insurance for breast implants. The jury convicted in 2007. But Sommer was released after more than two years in prison when exacting forensics showed no signs of poison in her husband’s system.

“One way of looking at trials is they’re a morality play,” says psychologist Geoffrey McKee. “The juries have a terrible task, which becomes more terrible as the stakes rise.” Like it or not, he says, “Demeanor and attitude is one way that helps them make decisions. It comes down to what’s probative vs. what’s prejudice, and that prejudice has a lot of fuzziness to it.”

Moreover, it would seem that if a defendant chooses to testify, that testimony must be given due weight as part of the overall evidence, regardless of a juror’s personal feelings about the defendant. After all, in the absence of refuting evidence — say, catching the defendant in a lie or noting areas in which said testimony is incongruous with other known facts — is it fair that a juror should enjoy the prerogative of simply disregarding sworn testimony?

Fair or not, says Spence, legally speaking, “It is the sole province of the jury to determine whether the witness is credible, and the judge so instructs them. They are instructed further that if a witness has falsified his testimony in any way, they are free to discount all of his testimony.”

Roger Oatley sums things up in his sagacious text for trial lawyers, Addressing the Jury: “We are more inclined to believe what we are told by those we like… We are more likely to trust people with whom we identify.” This “juror identification,” Oatley concludes, “may be the most powerful [courtroom] heuristic of all” — regardless of the facts in the case.

And today’s background check mania only makes things worse for young offenders. With four-fifths of American corporations now performing preemployment screening, even the random misstep can haunt a person for life. Says Modisett, “I am absolutely struck almost every day by how many young people find themselves in a situation that could have a major impact on their life, and you say, ‘That could’ve been me. I could’ve been there and I just didn’t get caught.’” He tells the story of a friend who “would be the best person in government you could possibly think of — just an outstanding person.” Modisett asked him once why he’d never run for public office. The friend replied that he “would love to,” but one night while in college he was walking home from a party where he’d had a fair amount to drink. Feeling the sudden need to urinate, he simply stopped along the street and did so. “Some overzealous cop saw it and wrote him up for it,” concludes Modisett, “and now that’s on his record: ‘public indecency.’”

The Uncorrectional System

It may be the worst misnomer in common usage: “Correctional institutions do not correct anything,” says Spence sharply. “The only real purpose is to punish people or keep them away from other people. We lock ‘em up, we let ‘em out, we lock ‘em up again. It’s actually a big business.”

After several decades during which a more enlightened, rehabilitative element was building momentum, the system now has swung back into punitive mode. “It started with the Reagan administration,” says Black, who with his wife, Lea, raises money for Baypoint Schools, a program that transitions incarcerated teens from jails to halfway houses and provides them with life skills and drug rehab. “We took away programs where kids could get their diplomas, college degrees, vocational training. We took away drug treatment, alcohol treatment. We should be trying to save people, not condemn them. Violent people, you want in a secure facility. If people are not violent, there are ways of ensuring that justice is done without being inherently punitive, while still making sure they can rejoin society and be productive.”

Advocates for tough-minded punishment argue that recidivism is high, so we might as well get the bad guys off the street as early as possible. This, however, leaves us with a chicken-or-the-egg dilemma: Perhaps recidivism is high at least in part because we seek to punish prisoners rather than equip them with the vocational and emotional skills to reenter society. Surely there is no lack of evidence for the link between addiction and crime. According to the United States Bureau of Justice Statistics, half of all those arrested test positive for illegal substances — up to 78% in major cities — and about one-third of those incarcerated are there for an addiction-based reason. It is reasonable to assume that weaning people off the so-called “drug lifestyle” would pay major dividends in crime reduction.

Noting that law enforcement appears more interested in stigmatizing addiction than trying to solve it, Modisett says, “It’s clear that the severity of the sentences is based on the biases of the people in power instead of the inherent nature of the crime. Why do we put people away for years and years when perhaps the crimes didn’t have the relevant social impact?”

Little symbolizes the unforgiving nature of today’s correctional mindset and its determination to “put people away” better than today’s proliferation of “three-strikes” laws. Although judges have always reserved the harshest punishment for repeat offenders, mandatory “habitual” sentencing gained traction in the early 1990s, with California and Washington state leading the way. Today, 26 states and the federal judicial system employ some form of three-strikes sentencing.

The statutes often deprive the bench of its usual judicial discretion, sometimes leaving the jurists themselves disheartened and grim. In Florida in 2003, Circuit Court Judge Bob Wattles apologetically sentenced Maurice Leonard Reed to life in prison for a $20 burglary, explaining that under state law in place since 1997, “I don’t have the authority or the power to not sentence you to life.” Wattles estimated the cost of Reed’s incarceration at $560,000, assuming the convict lived to age 75.

Arguably the most controversial three-strikes case involved Jerry DeWayne Williams — or “the pizza thief who got life,” as he became known after swiping a slice from a group of children in a California amusement area. Though the Williams case later was accepted for judicial review and his sentence cut to six years, similar cases have survived review at the highest levels. In November 1995 Leandro Andrade stole a total of nine videotapes from two different California K-marts. Because Andrade had previously committed a number of petty crimes, the additional felony counts put him in three-strikes territory. He was sentenced to two consecutive terms of 25-years-to-life. After several appeals the case found its way to the U.S. Supreme Court, which let the sentence stand.

But there’s a final irony here. As sometimes happens when society overreacts to a limited problem with an all-encompassing Band-Aid, three-strike laws may have run afoul of a more eternal edict: the law of unintended consequences. A February 2008 study by the National Bureau of Economic Research indicates that while three-strike laws are correlated with a modest drop in the frequency of crime, they may also cause career criminals to commit far more serious crimes. A thief with a few priors in a state with a three-strike statute but no death penalty faces the same punishment regardless of whether he robs a hot-dog stand without a weapon or bursts into a bank with an Uzi. For that matter, it makes no difference whether he merely robs the bank or kills several guards in the process; he has nothing to lose. This is borne out in the NBER study by a 9% increase in serious violent crime among criminals potentially facing their third strike.

Presumed Guilty?

A further reason for today’s exploding prison population is that notwithstanding the lip service given to the presumption of innocence, the deck is stacked against criminal defendants to a tragicomic degree.

In a 1992 National Law Journal poll of jurors in criminal cases, 28% confessed to believing that if a criminal case reached the trial stage, the defendant was “probably guilty” on that basis alone. “When a trial starts,” agrees Black, “jurors see all the exhibits, the evidence, and they figure nobody would have gone through all that trouble if the guy was innocent.”

Spence attributes such predispositions to human nature combined with the scariness of today’s world: “If we were to have a composite of society as a juror, here’s what that juror would say: ‘I am afraid. There’s crime all around me. I’m afraid to go out at night. I’m afraid for my children. I want all of those bad people, whoever they are, put away. And if they are very bad, I want them killed.’ These are the feelings the entire system is trained to emote automatically out of people the minute they walk into court.”

Nor does it help that by the time a case comes to trial, local jury pools have been inundated with publicity due to today’s 24/7 media cycle. Few can claim better insight here than Bernard Kerik. The former NYC police commissioner and unconfirmed George W. Bush nominee for Homeland Security chief was forced to pay a $221,000 fine in 2006 in connection with allegations of influence-peddling stemming from the renovation of his house; the next year he was indicted on an array of federal tax-fraud and related charges. Kerik, thus, has had a rare opportunity to see the justice system up close and personal from all sides. “The presumption of innocence is just gone,” he says. “When my case started in the Bronx there was a grand jury, and almost every single day I read about what was said there. That was supposedly a sealed proceeding.” No sooner were charges made public than Kerik began seeing himself described in newspapers as “the disgraced former New York police commissioner.”

How, he now wonders, does a system maintain the presumption of innocence when every new shred of evidence is leaked (sometimes erroneously) to news networks, and a given suspect’s guilt is openly proclaimed by cops and prosecutors at press conferences long before a case goes to trial?

Bad Schools, Bad Lawyers, Bad Deals

It may be the most remarkable winning streak on record: Attorney Gerry Spence has not lost at trial since 1969. Not surprisingly, he has some strong feelings on why so many criminal trials result in convictions; he even goes so far as to assert that almost all defendants “could claim inadequate representation.”

“Lawyers walk out of law school and they’ve not been taught anything about communication,” contends Spence. “They don’t know how to talk to ordinary people. They don’t know how to talk to juries. They’ve been ruined as communicating human beings, particularly if they’ve gone to Harvard or Yale. They have spent their entire lives in their left brain, and they don’t know how to feel.”

Describing law schools as the “money machines of universities,” he continues, “You can put 200 kids in a room with one professor who’s making $100K a year, and you do this for three years and charge huge tuitions, and when you finish you dump out someone who’s no more competent to try a case with a jury than a nurse would be.” If lawyers were doctors, he says, “We’d be stacking the dead in front of our offices.”

Spence insists that, contrary to popular belief, one should not infer guilt from the knowledge that a defendant accepted a plea bargain. Prisons, he says, are full of people whose only “crime” was second-rate representation. “Let’s say a charge is brought against somebody who can’t afford anyone but a public defender, who has 60 or 100 other cases. He doesn’t have the time and he doesn’t have the resources. He wants this boy to plead guilty. He tells him that the U.S. attorneys are convicting 95% of all cases they have. He’s persuasive.”

Does this mean there’s a vaguely extortive aspect to plea arrangements? Spence retorts, “Why do you say vaguely? One of the biggest misconceptions is that everybody’s basically guilty. There are thousands of people in the penitentiary system who are not guilty of the crimes they are charged with. The reason they are there is they were presented with an option of taking a plea and going to the penitentiary for a period of years — or facing a jury and going to jail for 20 years-to-life. So in absolute desperation, innocent people will admit. The power of the state is nearly absolute.”

The personification of today’s rush to judgment would have to be Headline News’ Nancy Grace. The former prosecutor’s blistering accusations, delivered nightly on her hour-long show, draw condemnation even from members of the legal profession, who normally are circumspect about criticizing peers. Lawyer, author and blogger John Day writes of Grace: “She is not a talking head — she is a screaming skull,” an “embarrassment to the profession.”

Grace’s own prosecutorial career was hardly unblemished. In 2005 the 11th U.S. Circuit Court of Appeals concluded that she had “played fast and loose” with her ethical duties as a Fulton County, GA, prosecutor by suppressing evidence in a 1990 homicide trial. This was the third such official censure, and the facts of the three instances suggest a disturbing notion: that Grace was then, and remains now, less concerned with justice than with lashing out at the criminal element she holds responsible for her fiancé’s much-publicized 1979 murder. “What’s alarming,” writes Los Angeles Times columnist Tim Rutten, “isn’t so much what happens on her nightly broadcast but what’s absent — things like balance, sobriety, fairness and independent judgment.”

The same criticisms could be lodged to a lesser degree against MSNBC’s Dan Abrams, Fox’s Geraldo Rivera, and CNN’s Larry King. “They may focus on celebrity cases,” says one lawyer, “but their cynicism poisons the well for everyone accused of a crime.”

Bias is endemic to the system in other ways. Prosecutorial misconduct is not limited to Nancy Grace. “There’s always going to be a prosecutor who couldn’t give a damn about truth,” says Kerik. “Like [former prosecutor Mike] Nifong and the Duke lacrosse team. They lose their objectivity or they want to make a name for themselves, and they forget what they were sworn to do. There’s no mandate that you have to indict. Your job is to conduct a fair investigation.”

Defendants who assume that if nothing else they can expect fair treatment from the bench may be dismayed to learn that the judge in any given proceeding is apt to be a former prosecutor who: (1) became a judge thanks to his high conviction rate, (2) maintains close ties with his erstwhile colleagues, and (3) carries the prosecutorial bias into his new role. In Covering Crime and Justice: A Guide for Journalists, veteran courtroom journalist Steve Weinberg observes, “[E]lected prosecutors and the lawyers they employ can, and sometimes do, bend and break the rules. Defense lawyers are generally powerless to remedy the situation. Judges possess the power, but rarely exercise it, in some instances because the judges are former prosecutors.” The New York Times reported in December 2004 that seven of nine judges on the Texas Court of Appeals, which hears the most serious cases (including death penalty appeals), were former prosecutors. One of the pertinent facts to come out of a 2003 investigation into allegations that Chicago police tortured minority suspects in order to obtain confessions was that 41 of 61 judges assigned to Cook County felony courts were former prosecutors. Other judges had once served as attorneys for police officers accused of torture.

Confessions are among several categories of evidence, once considered ironclad, that more recently have been called into question by advancing technology. Since its founding in 1992 by Barry Scheck and Peter Neufeld, the Innocence Project has used DNA evidence to clear 16 convicts awaiting execution and 233 prisoners overall; a quarter of them had made self-incriminating statements or outright confessions, or had accepted plea arrangements. (See sidebar below.) Victim or witness identifications — historically viewed as the gold standard of guilt by juries in sex crimes in particular — also have been revealed as the unreliable investigative tools that law-enforcement insiders always (privately) knew them to be. In fully 75% of the Project’s DNA exonerations, there had been a positive identification at trial.

There may be no better indicator of the inherent skew and fallibility of the justice system than this: Some of the most vocal opponents of capital punishment are people intimately acquainted with the system’s inner workings, and thus well aware of the risks. As Northern California police chief Ray Samuels, a one-time death penalty supporter, said with simple eloquence in an opinion piece he wrote upon his retirement: “Despite the best intentions of law enforcement, prosecutors, defense attorneys, judges and jurors, innocent people have been convicted and sentenced to death…. Once imposed, [the death penalty] is a bell that cannot be unrung.”

Indeed.



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24 Comments »

24 Comments

  1. David says:

    Small point but isn’t 2.3 million only 0.76% of the total population (and less than China’s percentage)?

  2. Tom Willson says:

    Actually, both percentages are wrong by an order of magnitude. US rate was .76% and China .12%

  3. Dale A. Wood says:

    Yes – that 7.6% number is obviously erroneous by a factor of 10. That is a completely non-trivial error, and not a “small point” at all. Mr. Steve Salerno clearly said
    “under lock and key”, also.
    In any case, the actual percentage of Americans in prison or jail of 0.76% is ourageously high from the standpoint of our overall society. That is a serious problem, but there is no need to exaggerate the numbers.

    Also, the only way to get a percentage approaching 7.6% (for example) is to include all of the people who are either out of confinement on parole, or else have completed their terms of parole, (ex-convicts), or else are serving a term of probation. In any case, a percentage like 5.0% or 7.6% is also outrageously high from the standpoint of our society. The problem is a serious one.

    D.A.W.

  4. Dan says:

    I too noticed the error as the 7.6% number jumped out at me as ludicrously high. IMHO that type of error seriously undermines the article’s legitimate message.

    It should be corrected ASAP!

    Dan

  5. Sheldon says:

    Wikipedia puts the 2005 prison or jail rate in the US as 738 per 100,000.

    And compares that with England and Wales at 148 per 100,000.

    Statistics Canada put the 2005-2006 rates as 110 per 110,000 an increase from the previous year’s 107 per 100,000.

    So the United States is still an extreme outlier.

    What’s scary is that Canada has a prime minister who thinks Canada should be more like the US in sentencing with longer terms of imprisonment and mandatory sentencing.

  6. Henry James says:

    The War On Drugs bully act has been precipitating this corruption of justice for decades: Big money, turf wars, increased addictions, kids involved, harsh sentences, assumption of guilt, police corruption – sound familiar? Alcohol prohibition had the same results, but it only took 13 years before the depression made the Alcohol Prohibition bullying too expensive.

    The War On Drugs bullies have had 45 years to embed themselves in our culture. Since the WOD punishes mostly political minorities – blacks, Hispanics, counter-culture activists, rural poor – the middle class happily joined in, like Dark Ages sadists, burning cats for fun. Very popular.

    I think this country is failing because we are too juvenile and too mean. We are a nation of feral kids raising more feral kids and our high school drop out rate is a good measure of the phenomenon and our high prison incarceration rate is a good measure of it’s results. Drop outs need access to easy money because they can’t earn it and they have few social skills so they rely on aggression.

    Do we think the glamorization of violence and crime in TV shows like “Miami Vice” has no impact? The War On Drugs looks less like an accident and more like a 1984 setup and anyone who says otherwise could end up like “Winston.”

    Please withhold my name!

    Hermit

  7. J. Gravelle says:

    “Cannot white-collar/financial crime of such disruptive magnitude be construed as a far greater offense against the social contract than any single crime against the person, up to and including homicide?”

    Equating the mismanagement of Grandma’s annuity with the maiming/raping/killing of Grandma herself speaks volumes toward the absurdity of the pacifist mindset.

    I’ve lived on the streets, and likely would have died there too if I’d subscribed to the fallacy of a protective “social contract” rather than accept (and work within) the parameters of this harsh reality:

    There really ARE “bad” people out there who, if not taken down, will take YOU down. Period.

    Do we need to work together to minimize the factors (read: “excuses”) leading up to a life of crime? Absolutely.

    Does that process begin with molly-coddling the criminals themselves? Absolutely not…

    – J. Gravelle

    • John Beck says:

      I think that the point of the comparison of a white collar criminal destroying the livelihoods of thousands with an individual crime (up to and including homicide) was comparing the damage done to society.

      Sure as individuals, we’d all prefer to lose our 401K’s than lose our lives, but the comparison wasn’t on the scale of individuals. It was on the societal level. Like it or not, laws and punishment have to work on the societal level

      Another example is crimes committed by police – don’t they cause much more damage than equivalent crimes committed by citizens by betraying trust in the system (and in police)?

  8. joel blow says:

    Equating a provocative article to a pacifist mindset speaks volumes to the absurdity of the mind of the commenter.

  9. Natalie says:

    On the issue of juveniles receiving the sentence of life without the possibility of parole, the U.S. Supreme Court has accepted a couple cases for this next term where the issues involve life sentences for offenses committed when the inmates were juveniles. Considering the U.S. is reportedly the only country to sentence juveniles to such sentences, maybe the Supreme Court will find these sentences unconstitutional. For more on this, see http://askthejudge.info/is-a-life-sentence-for-a-13-year-old-cruel-unusual-punishment/562/

  10. Doug says:

    Spence’s charge that the U.S. has more Blacks in prison than in college is a misleading chestnut that has been debunked over and over. It comes from adding up all the Blacks in prison (from age 18 to 80)and comparing it to the handful of the population (age 18 to 22 or so) in college at any one time. I don’t care if the people spreading this half-truth are well-intentioned or not, it’s a racist lie and I’m sick of it. (Yes, liberals use racist arguments and stereotypes when it suits them.)

  11. Mike R says:

    I would like some clarification on the 2.3million “incarcerated.” This statement leads me to believe that is the current prison population, generally those people sentenced to over one year, as opposed to jails, in which people generally spend weeks to months, or local jails in which pre arraignment arrestees are held until they go to court (usually within 48 hours) or are released outright on Bond/Bail or citation or even have their case reduced (for simple drunk in public for instance).

    The terms are kind of important. So if you are talking “prison” I would say you are talking about convicted felons who are going away for a year or more. “Jail” on the other hand is less than a year, usually MUCH less, and may mean city type jails which are used for holding an arrestee for a very short time until they see the judge at which time often they are released on the own recognizance.

    Now, when we compare other nations do we take into account the way their judicial system works? If the 2.3mil includes everyone who has been booked (the initial entry for many into the justice system, prints/photos) then that is going to be, imho, a very misleading number. Especially if you are comparing that number to the number of people actually in prison in some other country.

    • Dale A. Wood says:

      If you look at all of the numbers, especially the number of days or weeks spent locked up, the number of days spent by people who are awaiting bail, awaiting trial, or just sobering up is statistically insignificant when compared with the people who are spending many months or years in jails or in prisons. So, compared with the 2.3 million people who were mentioned in the article, those others only affect about the fifth significant digit. Don’t worry about those short-times – they are beside the point. Those who have been locked up for a long time are the significant problem here.

      Also, nobody has pointed out, yet, that one reason why Communist China has such a comparatively-low percentage of prisoners is because they quickly shoot so many convicts. And these are largely ones who have been involved in property crimes, such as official corruption, rather then crimes of violence against their fellow Chinese. Property crimes that would never be considered for a death sentence here.
      D.A.W.

  12. John L says:

    Doug is right, and it only took me 10 minutes and Google to find that out. Mr. Salerno needs to spend some time fact checking.

    • Mel says:

      Now let me get this sraight… are you and Doug saying that there are NOT more blacks in prison than in college or are you saying there are, but it is misleading out of demographic context? In the latter case it’s not his facts that are suspect… it’s his argument.

  13. Karolina says:

    Great article! I have a question: what is a “thought crime” ?

    • Mel says:

      The 10th commandment? ;-)

    • Francine says:

      Perhaps something like ‘thinking’ that America is insane and has lost it’s way may become a criminal offence. Many Republicans accuse Democrats of being ‘anti-American’ meaning that criticism of a country’s foreign policy is tantamount to a crime.

  14. Tom says:

    An in depth and thorough article, in spite of the snaffoo with the stats. Its tragic how in many cases in America, a low socio economic status is almost sinful.

    Incidentally, I read of a study somewhere that asked the question whether or not high incidents of lead, cadmium and other heavy element pollution common in urban and rural poor neighborhoods lead to higher incidents of violent crimes in those neighborhoods when compared to suburban and affluent neighborhoods that did not have those contaminants in the environment.

    Has anyone else heard of such a study? If so, what were the results?

    Tom

  15. Peter says:

    The article outlines some of the many many shortcomings of our justice system but I wish to speak to only one, the manner in which sentences are applied. The sentence serves 3 main purposes. 1. It immediately removes the convict from society and thereby protects society from his errant ways until he can be rehabilitated. 2. It satisfies societies legitimate need for retribution and a sense that justice has been served onto the social transgressor. 3.It acts as a deterrent to similar illegal acts to the convict and to society at large. The sentence must be carefully selected and applied in order to accomplish these three objectives. I believe that the sentence should be broken down into two clearly distinct phases; punishment and rehabilitation. These phases should be made absolutely clear to the convict. In the punishment stage prisoner treatment should be humane but punitive. It should not be pleasant.
    The punishment phase should, wherever possible, be public. If the public cannot see with their own eyes the consequences of antisocial behavior, the deterrent effect will be very minimal; chain gangs are not necessarily a bad thing.
    Finally, after the punishment phase is completed the convict must know that his punitive debt to society has been paid but he must be rehabilitated before he can be returned to that society. At this point he should be removed from the traditional prison and sent to a dedicated rehabilitation center (not a halfway house) to serve the rest of his sentence in rehab, which he must meet a certain standard of rehabilitation prior to being released to a halfway house at the completion of his sentence. This may seem Neanderthal or barbaric to some but it addresses basic tenants of human behavior/nature that our current justice system hopelessly under serves, and instead delivers us a completely unacceptable level of recidivism.

  16. greg says:

    the comunicable disease rate for HIV, HEP C & TB in American jails and prisons is in most places 20X the community norm and the average sentence is 24 months. Then out and looking for work after burning all the past bridges due to addiction to alcohol (most violent) and other drugs and or a co-occurring mental illness, they satisfy the courts mandate for release and parole/probation regs by working in the food service industry. And all about H1N1, or H5N1, oink or cluck, these releases, all over America are happening as I type this, justice indeed. 60+% in these most racist, unhealthy petri-dishes, where the Federal government has a nationwide move to try and reduce prison rape, are parents, and the likelyhood of a child with a parent in the system to follow in their footsteps is 6X higher then those without, justice indeed. Welcome to the business of America, incarceration, here and elsewhere, where small town America has been turned into prison/jail job development profit for corporations traded and held by former and the current incarceration, “Lock Up” addicted religiously indoctrinated sepratists, Christian-Zionists waiting for Armageddon, justice indeed.

  17. kenn pappas says:

    I found myself agreeing with the bent of this article, that there are too many Americans who are all too readily incarcerated, until I came to this point and spent some time thinking:

    “…the real problem, one could arge, isn’t that too many kids are turning prematurely into adult lawbreakers; it’s that too many adult lawbreakers never left childhood.”

    I just don’t accept this. On the contrary, too many kids really are turning prematurely into adult lawbreakers. Those tried as adults are usually repeat offenders, not merely car thefts, but those who have also committed battery, rape, constant antagonism of defenseless classmates and neighbors. Their crimes aren’t merely smoking an occasional joint. It may be tragic that there’s too many young lawbreakers in prison, but there are also tragic consequences for those who have been severely violated by lawbreakers. “Forgive and forget” is a nice maxim, but it just doesn’t work for a person who has to suffer traumatic physical and psychological consequences. Criminal injustice isn’t the problem. More emphasis on what violates another human beings safety and security, and greater consequences for these violations would be the better solution. We non-violators who don’t take up guns and knives, and are not compelled to rape and kill, do indeed feel more secure when youth that is compelled to commit violent crimes are incarcerated. It’s just not true that youth are typically placed in prison for “small crimes.”

    Of course it’s important to cut crime at the root, especially with continuous education about what constitutes a criminal act. If current punitive measures do not prevent crime, it’s also possible that more punitive measures than ever before will better curb crime. If the price of selling heroin to 12 year olds, for instance, is punishable by death, I suspect that after word spreads that a few heroin pushers no longer exist on the face of the planet, the problem with heroin use by 12 years would diminish.

  18. W. Corvi says:

    I’m finding it hard to believe this is published where it is – in Skeptic Magazine. Any good skeptic could punch holes in this that one could drive a SEMI through. Let me take a stab.

    The article asserts that those on third strike are just the unlucky ones – that those with one strike are one standard deviation from the mean. An additional strike means just two standard deviations, and three – well, are three standard deviations. This, of course, is complete bunk.

    The above scenario assumes that we ALL have committed three felonies, but only SOME have been caught once, by random chance. And some have been caught twice, by random chance. And a few unlucky ones have been caught three times, by random chance, and are put away for good.

    The fact is that most of us have NEVER committed a felony. We aren’t perfect, but a FELONY??!?

    The fact is that about 1% of people are what psychologists call psychopaths. A psychopath is someone who is Narcissistic, and has absolutely no conscience. If they see something they want, then it is theirs. I’ve dealt with two such people recently – some jerks who stole my car, and a neighbor.

    Here’s the worst of it – there IS NO CURE for this – they jump through all the hoops, to get what they want, but they don’t change, because they ARE RIGHT! The first amendment to the constitution says that they get what they want, and the rest of us can divide up what’s left.

    Let them back out on the streets, and guess what? They do it all over again. Because they are RIGHT. They were turned loose so they can steal another car, or whatever.

    Come on, folks! Be skeptical!

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