An article in the Wall Street Journal last week having pointed out that 97 percent of U.S. criminal prosecutions are now guilty-plea bargains, and that 85 percent of the remaining 3 percent are trials that return guilty verdicts, I return to the spavined bête noire of the justice system. These are totalitarian percentages. I have referred here before to an American “prosecutocracy.”
The United States has 5 percent of the world’s population, 25 percent of its incarcerated people, and almost 50 percent of the world’s lawyers. These figures hold, even if it is accepted that some undemocratic countries, probably including China, do not reveal the full numbers of detained people, and provided we exclude the countries where the practice of law is not a learned profession requiring serious academic formation. India professes to have almost as many lawyers as the U.S. — which has over 1 million accredited lawyers, who have graduated from law schools and passed bar exams — but that includes a very large proportion of them who appear in courts of common pleas where anyone can saunter in and argue a case.
The Fifth, Sixth, and Eighth Amendments guarantee a grand jury (implicitly, though this is not expressly stated, to ensure against capricious prosecutions), just compensation for seized property, due process, access to counsel (of choice), prompt justice, an impartial jury, and reasonable bail. All of these guarantees have been sliced and pulverized to varying levels of granularity in the 50 states. Grand juries are rubber stamps that almost never withhold what is asked by prosecutors, and their proceedings are often unknown to suspects and targets as they occur. The seizure of property, especially if that property is being relied on as a source for paying the legal bills of notoriously rapacious American lawyers, frequently occurs just before the prosecutors lay their charges, freezing the civil proceedings and rendering the defendant’s property unavailable as a source of sales or borrowing to pay for counsel, who almost always demand hefty retainers at the outset. The process — from identification of a target to the end of a trial — can often be several years, during which it is practically impossible for an accused person to function normally.
Juries are subjected to an intense propaganda blast from prosecutors in the areas where the case will be heard and the jurors selected, almost invariably echoed by the media, descending even to the likes of Nancy Grace, who routinely demands to know why uncharged possible suspects, whom she names, are “still at large.” Impartial juries in such circumstances, which obtain in all high-profile cases, are hard to come by. Bail is not just a surety against flight but a tool of impoverishment against defendants, and is frequently far from reasonable. (I posted $38 million when I was a criminal defendant several years ago. It was a stretch but I managed it, despite an illegal asset seizure, but few people have the resources to defend themselves and even face the daunting odds against them in the courtroom.)
Those who cannot face the costs but wish to fight, or even wish to plead, are thrust into the hands of the public defenders, who are court employees, paid not for performance but by the number of “clients” they serve. They are effectively subordinate to the prosecutors, who may agree on recommended sentences for those who plead guilty and then depart from their agreements after the plea is in, with no sanction from the judge. Even the criminal-defense bar, for the most part, are chums of prosecutors, with whom they (almost always unsuccessfully) contend every week, who scarcely know their clients, and are well-paid cogs in a well-programmed machine that is essentially a conveyor belt to prison rather than a process of fair adjudication of thoughtfully leveled charges. At the end of our four-month trial, one of my co-defendants’ counsel, when asked by my wife if the proceedings were “justice,” cheerfully responded that “No, it’s theater; fun for everyone but the defendants.” (We won 95 percent of the case, and eventually all of it when the Supreme Court unanimously found the chief prosecuting statute unconstitutional, but two counts were spuriously retrieved when the high court remanded the vacated counts back to the appellate panel it had excoriated for assessment of the gravity of its own errors. I spent three years in federal prisons, falsely convicted of crimes of which no court in any other serious country would have convicted me.)