Politics & Policy

Broken Justice

A sore spot on America’s body politic.

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.


#ad#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.



Ms. Podgor and I challenged Otis’s serene platitude that “juries convict and judges sentence” by pointing out that the juries are snowed by the procedural inequalities, and that the judges’ hands are tied by usurpatory legislative grandstanding such as mandatory minimums and “three strikes and you’re out.” He met us with a glazed pall of impenetrable prevarication. And the comments of both of us on the human wreckage needlessly created in the justice system by the conduct of prosecutors who would be disbarred in any other serious country caused me to be gently disparaged as — a real and rather agreeable novelty — an almost hemophiliac bleeding heart. When Mr. Otis said that if the conviction rate were as low as those in Britain and Canada (50 and 60 percent), the prosecutors would be reviled for dragging the innocent through ineffectual proceedings, I resisted with difficulty the temptation to reply that if that was his view of how the system should work, we might as well talk about goldfish. Ms. Podgor came in admirably with well-formulated concerns about the commoditization of convicted people.


Former senator Jim Webb (D., Va.) spoke out a few years ago about the imbalance of American criminalization and the record of other advanced countries and concluded that either the other countries (named above) were not interested in crime, which is nonsense, or Americans were uniquely prone to commit crimes, which is nonsense, or the system isn’t working well. Bingo, but Mr. Otis gave us a new explanation, which I called the providential and almost uniform moral and professional superiority of American prosecutors. Senator Webb’s proposed commission on these issues was never set up and would not have achieved anything anyway: There have been countless such commissions and they never achieve anything. But self-coronations for global superiority are disturbing, and unbecoming to Americans. Mr. Otis’s presentation was like that of an unscrupulous televangelist: All was fine, there was a ready explanation for everything, and when a question could not be answered, just answer a different one and pretend it is an answer.


It put me in mind of a friend who had happened to see that ineffably tedious television personality, Dr. Phil, recently assuring a caller on his program that the United States “has the best justice system in the world,” as if this subject had much to do with his field of specialty. The U.S. has done well with a systematic and saturating policy of self-praise, from workers’ putting flag decals on their hard hats to Senator Marco Rubio’s responding to every encouragement to say anything with an encomium to “the greatest country in human history” to intellectuals’ celebrating American exceptionalism in recondite ways. All countries need some boosterism and all people should be proud of their collective identities, national, ethnic, and sectarian, and usually even vocational. There are dangers in cynicism, as the Italians and the French — who generally regard politics as an absurd and inherently corrupt and contemptible activity and their countries as likeable but raddled old harlots — demonstrate. But there is something potentially delusional in this endless American incantation of self-laudations. Even President Obama, a dissenter before his elevation, is grating with his completely false claims to have reestablished America’s prestige in the world, as he runs, not walks, from every problem. This can only be intuition, but I suspect the increasing anti-Americanism on U.S. campuses may in part be a response to this relentless impulse to mindless vanity.


Part of the difficulty is that almost all America’s traditional peers, the old Great Powers, are crumbling too, except Germany and Canada, the only major countries that still impress the unconscionable scoundrels in the thoroughly disgraced rating agencies. When Britain, France, and Japan, not to mention Italy and Spain, are floundering, Russia is a gangster state, and no one can believe a word or number emanating from Beijing, it is easier to continue like Victorian elocution-school students to repeat a mantra — in this case, that America is the greatest. This practice has its rewards and its hazards, but indulging the conveyor belt to the corrupt and bloated U.S. prison industry that is its criminal-justice system in such a full-body immersion of misplaced praise is not just unrigorous and unwise. There is something totalitarian, and thus profoundly un-American, about it.

Conrad Black is the author of Franklin Delano Roosevelt: Champion of Freedom, Richard M. Nixon: A Life in Full, and the recently published A Matter of Principle. He can be reached at cbletters@gmail.com.

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