@Lustig Andrei,
http://www.constitution.org/lrev/roberts_wrongful.htm
In 1998, the Pittsburgh Post-Gazette summed up its investigative reports of prosecutorial misconduct as follows:
hundreds of times during the past 10 years, federal agents and prosecutorshave pursued justice by breaking the law. They lied, hid evidence, distorted facts, engaged in cover-ups, paid for perjury and set-up innocent people in a relentless effort to win indictments, guilty pleas and convictions. Rarely were these federal officials punished for their misconduct. . . . Perjury has become the coin of the realm in federal law enforcement. People’s homes are invaded because of lies. People are arrested because of lies. People go to prison because of lies. People stay in prison because of lies, and bad guys go free because of lies. (Moushey 1998, 40)
A new practice known as “jumping on the bus” has taken the prosecutorial ethic to the rock-bottom depth. Informants sell information on unsolved cases to an inmate, or prosecutors and federal agents feed this material to an inmate. The inmate memorizes the case, thereby seeming to have inside knowledge when he comes forward with information to trade in exchange for a reduced sentence. In the absence of evidence, this practice is used sometimes against a person only believed to be guilty. Sometimes it is used to close unsolved cases, and sometimes it occurs at an inmate’s initiative. Formerly, self-serving accusations by criminals were treated only as leads to be investigated. If the leads proved helpful, evidence still had to be marshaled. Today the accusation is the evidence. Thus, the criminal element itself has a big say in who goes to prison.
Weak and fabricated evidence suffices because seldom is it tested in court. According to the Justice Department, only approximately one case in twenty goes to trial; the rest are settled with pleas (Maguire and Pastore 1995, 461–63, 483–86). Conservatives believe that the problem with plea bargaining is that it permits criminals to get off too lightly, thus undermining the deterrent effect of punishment. However, the problem with plea bargains is far more serious.
Plea bargains have corrupted the justice system by creating fictional crimes in place of real ones. The practice of having people admit to what did not happen in order to avoid charges for what did happen creates a legal culture that elevates fiction over truth. By making the facts of the case malleable, plea bargains enable prosecutors to supplement weak evidence with psychological pressure. Legal scholar John Langbein compares “the modern American plea bargaining system” with “the ancient system of judicial torture” (1978, 8). Many innocent people cop a plea just to end their ordeal. Confession and self-incrimination have replaced the jury trial. Just as Bentham wanted, torture has been resurrected as a principal method of conviction. As this legal culture now operates, it permits prosecutors to bring charges in the absence of crimes.
Plea bargaining is a major cause of wrongful conviction. First, plea bargains undermine police investigative work. Because few cases go to trial, police have learned that their evidence is seldom tested in the courtroom. Carelessness creeps in. Sloppy investigations are less likely to lead to apprehension of the guilty party. Second, plea bargaining greatly increases the number of cases that can be prosecuted. Prosecutors have found that they can coerce a plea and elevate their conviction rate by raising the number and seriousness of the charges that they throw at a defendant. Counsel advises defendants that conviction at trial on even one charge can carry more severe punishment than a plea to a lesser charge. The sentencing differential alone is enough to make plea bargaining coercive.
A circularity of reasoning justifies plea bargaining. Without plea bargaining, the argument goes, the courts would not be able to handle the caseload. This argument is unconvincing. The obvious solution is to create enough courts to handle the case-load or to reduce the caseload by eliminating victimless crimes, such as drug possession and trumped-up charges based on regulatory interpretation. Without the war on drugs, asset forfeiture, and months-long court disputes over the meaning of a lengthy arcane regulation, there would be enough courts and judges to handle the serious crimes.
Every law, regulation, or reform has unintended consequences. A case can be made that the exclusionary rule changed the culture of the criminal justice system and led to the coerced plea bargain. By releasing criminals known to be guilty, the exclusionary rule turned the criminal justice system into a lottery for police, prosecutors, {573} and criminals alike. The result was demoralized prosecutors who began to see in the plea bargain a way to game the system back toward conviction. The unintended consequence of the exclusionary rule was cultural change. The criminal justice system deemphasized pursuit of the truth and focused on convicting the defendant.
Once we understand that the law has been lost, it is easy to understand why there are innocents on death row. As important as it is to get these innocents off death row, new victims of the system can be put there faster than innocence projects can rescue them. Moreover, the preoccupation with capital offenses and with cases in which DNA evidence can resolve the doubt about innocence leaves the vast majority of wrongfully convicted persons without a prayer.
To make a dent in wrongful conviction, we must rethink the approach. Innocence projects and law professors who find injustice a burden on the conscience can work to reestablish the inculcation of the ethic in law school, an ethic so well expressed by George Sutherland (Berger v. U.S. 1935) and Robert Jackson (1940): that the prosecutor’s duty is to see that justice is done, not to win convictions. If the law schools can be carried, so can the bar association and the journalism schools. Stories about wrongful prosecution should become a media priority.
Law schools must deal as well with the Benthamite influences that have eroded the “Rights of Englishmen” and have made law a weapon in the hands of government. If Benthamite collectivism, aided by deconstructionism and cultural Marxism, has undermined the legal principles that protect individuals from government power, nothing can be done about wrongful conviction until the Blackstonian principles are restored.
Progress against wrongful conviction also requires a return to constitutionalism. To many lawyers, “constitutional protection” means the granting of protected minority status by a federal judge. If antipathy to guns is more important that the Second Amendment, offense to preferred minorities more important than the First Amendment, and race and gender quotas more important than equality before the law, it is little wonder that a prosecutor’s conviction rate is more important than a fair trial and that justice plays second fiddle to clearing the court docket.
It is often said that Americans live under the rule of law. It is closer to the truth to say that Americans live under the rule of regulators. Theodore Lowi (1979) has argued that accountable law in the United States ceased seventy years ago with the delegation of law-making power to the executive branch in violation of the principle that a delegated power cannot itself be delegated. The people delegated law-making power to Congress, where under our system of government it must reside forever. First, however, law must be put back in the hands of Congress, an unlikely event when government is so large that it involves itself in every aspect of life. It is just as unlikely that trials will take the place of plea bargains as long as so many laws create so many crimes, and so few resources are devoted to courts and trials.
The problem of wrongful conviction is much larger than many of its antagonists appreciate. We will spin our wheels expending vast energies in freeing a few innocent people, and we must do what we can. But we also must gird for battle and restore the lost law. Once the “Rights of Englishmen” are no longer even a memory, justice will be gone as well.
