Law & the Courts

The Wrongs of American Justice

(Nejron/Dreamstime)

Two relatively recent articles in respected publications have piercingly reminded me of what a rotting carcass much of the American legal system has become. The articles were a piece in The Weekly Standard of October 26 by retired attorney Paul Mirengoff and Georgetown law professor and former prosecutor William Otis, and a fawning profile of Judge Richard Posner by Lincoln Caplan (the Truman Capote visiting lecturer at Yale Law School, if such a position can be imagined) in the current issue of Harvard Magazine.

The basic point of the Mirengoff-Otis article was that mandatory minimum sentences for convicted offenders were “the biggest public-policy success of the last two generations.” The authors hold that legislated, preordained sentencing and “proactive policing” produced a dramatic reduction in crime. It happens that I engaged in a Federalist Society telephone forum on the American justice system with William Otis and Professor Ellen Podgor of Stetson University in Florida in February 2013, and reported on it in this magazine on February 28 of that year. The issue was much broader than mandatory minimums, and the three of us roamed very cordially over a wide range of U.S. criminal-law matters. Familiar though they are to many readers, the concerns I expressed were that American prosecutors win 99.5 percent of their cases, 97 percent without a trial, because the plea-bargain system extorts inculpatory evidence from witnesses in exchange for reduced sentences or immunity from prosecution, including for perjury, and threatens them with prosecution if they decline to cooperate. In practice, this means being catechized by prosecutors in a largely false sequence of allegations against the target. Every informed person in America knows that is how the system operates and nothing is ever done about it.

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Professor Podgor pointed out that there are now over 4,000 criminal statutes and that new laws and regulations with heavy sanctions are being feverishly adopted every year. The Otis view was that the system was seamlessly perfect and American prosecutors are more successful than prosecutors in other countries because they are more competent. He accepted that the aging of the population, improved police techniques (elevated in his Weekly Standard piece to co-responsibility for the greatest public-policy success of 40 years), and the profusion of security cameras might have helped. But he underestimated the number of incarcerated people in the country by 33 percent and was afflicted by glottal stops, incapable of answering when I asked him whether, since there are 48 million convicted felons in the U.S., he really believes that nearly one-sixth of all Americans and about a third of adult males really deserved to be considered officially as criminals. His silence was more eloquent than the mellifluous whitewash that preceded it.

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In the New York Review of Books in 2014, Judge Jed S. Rakoff of the U.S. District Court in Manhattan described the system of American criminal justice as effectively a fraud that no longer exists in practice. Former senator Jim Webb of Virginia has called for a Senate committee to look into the fact that the United States has six to eight times as many incarcerated people per capita as the comparable large, prosperous democracies: Australia, Canada, France, Germany, Japan, and the United Kingdom. Webb told the Senate that either those other countries don’t care about crime, which is rubbish (and they all have a lower crime rate than the U.S.), or Americans are uniquely addicted to committing crimes, which is also bunk, or the American system doesn’t function well. Bingo, but the committee was never established (not that that matters, committees are struck all the time all over the country on these matters but they never accomplish anything), and Webb retired from the Senate. Almost no one cares.

RELATED: America Desperately Need to Fix Its Overcriminalization Problem

The idea that judges are softies who don’t penalize wrongdoers is fatuous, especially in the state courts, where most sentences are handed down and the judges are elected, usually by pandering to the baying for blood orchestrated by Nancy Grace–style lynch mobs that lead most public opinion. In 1960, the United States, like other advanced democracies, had some sort of social balance between the punishment of people who did bad things and the desire to blend deterrence, punishment, and positive encouragement of a reformed offender. The black-radical movement frightened the white majority of Americans, and the feminists sold society and the media on the idea that all men were potential rapists and that even suggestive glances, or indefinable harassment, must be severely punished. Then everyone, from right to left, piled onto the bandwagon: Bobby Kennedy and Nelson Rockefeller were just as extreme as Richard Nixon and Ronald Reagan. As Otis acknowledged in the piece he co-authored, drug crimes are the greatest problem, but many drug offenses aren’t reported or don’t lead to an arrest. So his claims of progress are hollow by his own admission. The War on Drugs has been a complete failure. Drugs are in more plentiful supply and use than ever in the U.S. and the states are already moving toward legalization of marijuana, which morally undermines half the massive increase in convictions. The desire of mismanaged state governments for marijuana revenue can be relied upon to complete the destruction of the Otis-Mirengoff argument.

#share#William Otis told Professor Podgor and me that that if American prosecutors convicted only as large a percentage of the accused as prosecutors in the comparable countries mentioned, “the prosecutors would be reviled for dragging the innocent through ineffectual proceedings.” This is the point: They are committing the greater offense of dragging huge numbers of the innocent through kangaroo courts, where, as he did not (and could not) dispute, there is a huge procedural advantage for the prosecutors, and the judges don’t sentence — they inflict decreed, draconian sentences from the legislators who have rolled over like poodles for the floggers and executioners of the prosecutocracy and the public that has been whipped up to support them. Otis claims that the prospect of relaxation of mandatory minimums, giving judges back a little latitude, has caused the crime rate to start to rise. But the real reason is that a number of police forces, resenting recent media attention to the coast-to-coast shooting gallery they are running in some areas, are conducting what amounts to a work-to-rule, to remind society of the utility of police forces.

The fact that people armed with such absolute power as American prosecutors possess will abuse it is among those “truths” we may consider “to be self-evident.”

William Otis must know as well as anyone that there are revelations every week of heinous wrongdoing by prosecutors: Alaska senator Ted Stevens was found guilty and denied reelection to an eighth term, and the case then collapsed because of the prosecution’s withholding of exculpatory evidence. There was no sanction on the prosecutors (though one of them committed suicide). Judith Miller has shown that Patrick Fitzgerald misconstrued her evidence to convict former vice president Dick Cheney’s then–chief of staff Scooter Libby. In the other countries I have mentioned, Fitzgerald would be disbarred. In the infamous Thompson case of 2011, a man who had spent 14 years on death row, although prosecutors knew him to be innocent from DNA evidence they had withheld, had his award of $14 million damages overturned at the Supreme Court, as prosecutors must effectively have an absolute immunity, even for illegal conduct, apart from whatever penalties the local bar might impose.

The fact that people armed with such absolute power as American prosecutors possess will abuse it is among those “truths” we may consider “to be self-evident.” Despite the good-faith efforts of very many people, the criminal-justice system of the United States is an abomination and a disgrace and a menace to every citizen of the country.

This brings me to the Harvard profile and interview with Judge Richard Posner, who is celebrated as a great “pragmatist” of vast intellectual depth, and a judge so brilliant that there are suggestions of the need for a Nobel Prize for Judicial Thinking, which, if created, should be awarded to Posner. I had an appeal of four convictions (out of 17 original counts) referred to a panel of the Seventh Circuit in Chicago chaired by Posner, in 2007. He obviously had not read the arguments, interrupted three-quarters of the sentences initiated by my counsel — the very respected former deputy solicitor general of the U.S., Andrew Frey — and was simply an extension of the prosecution. We successfully appealed to the U.S. Supreme Court, where Posner was, though not by name, excoriated for his incomprehension of the law. In the perverse American manner, the Supremes vacated the remaining counts but sent them back to Posner and the cigar-store Indians on the panel with him, for the “assessment of the gravity of their errors.” With infinite regret, Posner had to let the two major counts go, but spuriously retrieved two and recommended to the trial judge that she not alter the original sentence. This was too much even for a federal court that had had some pretty un-Solomonic moments, and the sentence was effectively cut in half; the barest fig-leaf remained to protect the credibility of the prosecutors (Fitzgerald and his spear-carriers) and the local federal and appellate bench for this failed and unfounded prosecution.

Given the correlation of forces between the unbeatable and severe American justice system and me, I thought I had done well, and I did some research on the famous Posner, so unimpressive, querulous, and devoid of any insight or wit were his two performances in matters where I was involved. I had read his life of Oliver Wendell Holmes; as a biographer of prominent American public figures, I found it stale, wordy, and banal. I read Posner’s book analyzing the causes of the 2008 economic crisis and promising recommendations, and his chief recommendation was for a “properly funded inquiry” into the causes, hardly an answer to the reader’s curiosity. He also wrote: “I’m a Keynesian,” like President Kennedy at the Berlin Wall. By this, I assume he meant he favors stimulative spending in weak economic times; not even Posner can agree with Keynes’s harebrained theories that there is a natural balance in the economy, or that the imposition of reparations on Germany in 1919 caused World War II. (He doesn’t like history, Caplan writes, presumably because it can impinge on his pragmatism, the license to produce any decision or opinion, however absurd.) But none of it has anything to do with the causes of the 2008 financial crisis. Contrary to Mr. Caplan’s account, Posner is not a good writer — he is inelegant, pedantic, simplistic, self-indulgent, and laborious. He is like an ancient, squawking goose, an intellectual bigot, becoming more acoustically irritating as he exploits his generous sinecure to the last day.

For all his 35 years of inflicting on the legal world a torrent of opinionated excrescences from his throbbing ego, such as his suggestion that adoption of children should be by auction (and, much more sensibly, for the legalization of marijuana), this “pragmatic” Nobel-level philosopher of the law has sat fiddling like Nero, as the Bill of Rights has been shredded. Posner has been as mute as a suet pudding as the Fifth, Sixth, and Eighth Amendment guarantees of due process — the grand jury as an assurance against capricious prosecution, the prohibition against seizure of property without just compensation, access to counsel (of choice), an impartial jury, prompt justice, and reasonable bail — have been destroyed by the prosecutocracy. Apart from some of his thoughts about Yeats, he is essentially a loudmouth, an infelicitous combination of Bacon’s “much-talking judge” and Newman’s seeker of “mere controversy.” He told Caplan he disliked “theology without God” and that he “dislike[s] theology with God.” He’s an atheist who still wants to give his opinion on theology. Someone who knows Posner, and is qualified, should try to ascertain whether his unfocused and often bilious logorrhea is more the consequence of not being proposed for the Supreme Court after decades of striving, or of the fact that, as he said to a New Yorker interviewer 15 years ago, his wife’s cat doesn’t like him. A statue of the cat should be put in front of the Chicago federal courthouse, a palace of corruption and hypocrisy, right beside the plaques in remembrance of judges assassinated, allegedly in acts of vengeance for unjust decisions.

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