Even if you haven’t any time for Conrad Black, recently released from a US jail after being convicted of corporate wrongdoings (there is something about the conviction that makes me smell a rat), this review, by Paul Johnson, of Black’s recent book contains a rousing assault on the darker side of the US legal system. Excerpt:
America’s criminal courts now insist on convictions at the expense of any other consideration, above all of justice. They are more like a court martial than a civilian establishment of law. The presumption of innocence has been abandoned. I recall, during my military service, a senior provost martial telling me: ‘If a soldier is court-martialled one must assume he is guilty, otherwise he would not have been charged in the first place.’ That is contrary to all the principles of English justice but it now approximates to the approach of the American prosecuting authorities. The assumption of guilt is sanctified in law by the grotesquely unjust plea-bargaining process, which saves the accused from total financial ruin by forcing him to plead guilty to some of the crimes with which he is charged, however innocent he or she may be. Plea-bargaining in turn leads to a multiplicity of indictments by prosecutors, which adds a judicial to the financial compulsion of the innocent to bargain.
Hence the American prosecution practices are what the law calls ‘a derogation from honest service’. The US prosecution service, in heedless pursuit of convictions, does what it wants and prosecutes whoever it wishes for as long as it likes. Thus, over 90 per cent of prosecutions are successful, a higher proportion than in either Putin’s Russia or Communist China.
In my view, the plea-bargaining system is, as Johnson notes, one of the reasons why even the most Atlanticist Brit is concerned about the way in which the US-UK extradition arrangement tends to work unfairly against Brits who can be sent to the US without a, their case having to be shown to be worthwhile before a UK court and b, face the disgrace of the plea-bargaining system, which ends up with people settling for a criminal record rather than take their chances with a hideously expensive defence. By the way, here is a Canadian take on plea-bargaining. The Volokh Conspiracy had thoughts on this a while ago.
Like and admire much of the US as I do, its legal system, and incarceration rate, is nothing to admire.
By the way, it is good to see Johnson returning to some of his old fire in articles such as this. In his older years I suppose he has slowed down a bit. As a reminder of him at his best, I can recommend his Birth of The Modern.