I observed Washington’s birthday by participating in a Federalist Society telephone forum on the American justice system with two other panelists. The chairman, Dean Reuter, and the other panelists, Professor Ellen Podgor of Stetson University Law School in Florida, and Professor William Otis of Georgetown University Law School, could not have been more polite, and all the callers at the end of our introductory remarks were intelligent and courteous, and posed stimulating questions. It was my first direct contact with the Federalist Society, though I had often read material associated with its members and had always found it high-quality work. (The Federalist Society will be making available a podcast of the forum in the next couple of weeks.) I did not realize until just before we began that we were to make introductory remarks of five to eight minutes, but since I have uttered my views on the subject of U.S. justice, especially criminal justice, so often, including in this space, it was not a great challenge to muster a tolerably fluent recitation of the highlights.
These are, in the briefest synopsis, that American prosecutors win 99.5 percent of their cases, a much higher percentage than those in other civilized countries; that 97 percent of them are won without trial, because of the plea-bargain system in which inculpatory evidence is extorted from witnesses in exchange for immunity from prosecution, including for perjury; that the U.S. has six to twelve times as many incarcerated people per capita as do Australia, Canada, France, Germany, Japan, or the United Kingdom, comparably prosperous democracies; that the U.S. has 5 percent of the world’s population, 25 percent of its incarcerated people, and half of its academically qualified lawyers, who take about 10 percent of U.S. GDP; that prosecutors enjoy very uneven advantages in procedure and an absolute immunity for misconduct; that they routinely seize targets’ money on false affidavits alleging ill-gotten gains so they cannot defend themselves by paying rapacious American lawyers, most of whom in criminal-defense matters are just a fig leaf to provide a pretense of a genuine day in court before blind justice; that the Fifth, Sixth, and Eighth Amendment rights that are the basis of the American claim to being a society of laws don’t really exist in practice; and that far too many judges are ex-prosecutors who have not entirely shed the almost universal prosecutorial will to crucify.
Professor Podgor followed me and agreed in general with my comments and added some very learned points, such as that there are now 4,500 criminal statutes, and that prosecutors have become specialists in applying catchall laws such as RICO and obstruction of justice, or against untruthfulness in the case of the slightest variance in what has been said about even slightly related matters, so they often never have to prove the charge that gave rise to the proceedings. Mr. Otis followed with a mellifluous and integral whitewash of the justice system as seamless, leak-proof, and almost perfect. American prosecutors are so successful because they are better than those in other countries and never charge mistakenly (despite the endless popping up every week or so of the most shocking cases of deliberate suppression of evidence). The U.S., in its prosecutors, has an almost flawless functioning of the rule of law that is responsible for a heavy decline in the crime rate. It is efficient, unlike the welfare system — as if Ms. Podgor or I had been defending the welfare system or had even mentioned it.
Otis retreated only in microscopic increments and sideways, when we responded. Yes, he allowed, the aging of the population, improved police techniques, and the profusion of security cameras might have had a marginal effect on the reduction of crime. Despite the undisputed comparative percentages of incarcerated people, he claimed that there were only three-quarters of 1 percent of the population in prison at one time; but he had no reply to my question of whether, in light of the fact that there are 48 million Americans with a criminal record, albeit many of them for DUI or university-age disorderly behavior many years ago, he thought that one-sixth of Americans, and one-quarter of American adults, really deserve to be considered criminals. To my comment that 15 percent of convicted people were innocent, he replied with a red herring about an Innocence Project estimate that 3 percent are innocent, although it was clear that I was speaking of all people convicted of crimes and the source he cited was referring only to those successfully accused of violent crimes.