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On the iniquities of the US legal system

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.

30 comments to On the iniquities of the US legal system

  • guy herbert

    There’s that, and the extraordinary savagery of sentences and the penal system, which makes plea bargains stick even in the case of people like Michael Milken where money for defence is not an object.

    The nominal constitutional protection of grand jury indictment also serves as the precise opposite. It can amount to a softening-up process, a secret preliminary trial.

  • George Orwell

    The three major problems with the American justice system are (from an outsiders viewpoint):
    1) Prosecution seems very political. If you are high profile and have political opinions that differ from those of bureaucrats (i.e. overwhelmingly progressive), for example, Scooter Libby, or your prosecution can be twisted to score political points (i.e. Zimmerman case) you will pursued to hell and back, with press leaks, lies, distortions of fact and other prosecutorial malpractice. Black may fall into this group.
    2) Some drugs, especially marihuana, must be decriminalized to reduce the amount of justice system time and money wasted on a prohibition-like failed attempt to stop people using drugs (Disclaimer: I have never used marihuana despite being around it a lot and I think its use is not good for our society but criminalizing it makes no more sense than criminalizing alcohol use.)
    3) Violent crime trials, especially high profile ones like OJ, have been turned into circuses. Expensive defense attorneys have all the advantages in the system and juries (composed of the same geniuses that re-elected Obama) are easily swayed because they are ignorant and irrational. A little less adversarial system that focuses more on getting to the truth and less on excluding pertinent evidence for specious reasons might help us do a better job of convicting the guilty while protecting the innocent. How to deal with idiots on juries is more difficult.

  • Stephen Willmer

    The same is happening in Britain, plea bargaining is coming and defendants’ representatives are required to co-operate in the efficient prosecution of their clients.

  • Conrad Black was on Have I Got News For You recently. Ian Hislop repeatedly called him a criminal but his defence rang true. I enjoyed his wit. And they showed the clip of him and Jeremy Paxman. Anyone who can look Paxman in the eye on TV and say:

    Let me tell you something. I am proud of having gone through the terribly difficult process of being falsely charged, falsely convicted and ultimately almost completely vindicated without losing my mind, becoming irrational, ceasing to be a penitent and reasonable person and actually being able to endure a discussion like this without getting up and smashing your face in.

    …can’t be all bad. When Paxman said “go ahead” Black replied that he doesn’t believe in violence.

  • Johnathan Pearce

    I am sure there must have been something legit to put CB in jail but the more I read about this case and the sort of tossers such as Hislop gunning for him, the more suspicious I am about this whole process. CB was a bumptious but effective newspaper proprietor – frankly the Telegraph hasn’t been the same since.

    Anyone who can give it to Paxman like that deserves a knighthood.

  • RRS

    There is now ongoing, centered around a small group from the University of Virginia Law School, something regarding the American Criminal Justice System analogous to the abolitionist movement in American history. Much is based upon the work of the late William J Stuntz (1958 – 2011).

    The libertarians here may be interested in the following excerpts from one of the reviews of Stuntz’s extensive work and teaching:

    After all, even as they challenge the legitimacy of government functions that liberals and conservatives alike accept, libertarians readily endorse criminal law as one of the few proper functions of government. The reason, at bottom, is liberty: those who would kill or harm us, or steal our possessions, threaten our rights and liberty, and so government simply must protect citizens against the predations of others. The assumption here – which not only libertarian but any defense of the criminal law make – is that the criminal justice system focuses the heavy hand of the law only
    on wrongdoers (the kind of people who, unlike “us,” deserve and require punishment) and dispenses punishment rationally, not arbitrarily.

    Nothing, according to Stuntz, could be farther from the truth. Cherished ideals of free governments – including the rule of law and self-government – have all but disappeared from contemporary American criminal justice. As he puts it, “[t]he system dispenses not justice according to law, but the ‘justice’ of official discretion” – which, he adds, “too often amounts to discriminatory justice.”

    The result, as Stuntz famously put it elsewhere, is modern criminal codes that “cover everything and decide nothing.” To put it differently, it is not the criminal law today that determines what conduct merits punishment. That all-important determination is punted to politically accountable prosecutors, who are unique in our system in having enormous, virtually unchecked power over the lives, liberty, and property of citizens. Once prosecutors have decided to pursue criminal charges, it is overwhelmingly likely that the accused will be convicted – so much so, in fact, that the vast majority of persons accused of crimes (well in excess of ninety percent) plead guilty rather than take their chances at trial. The small share who do insist on holding the state to its burden of proof almost always end up convicted anyway, receiving worse sentences than they would have had they waived their rights and pled guilty on the prosecutor’s terms.

    His last work, The Collapse of American Criminal Justice, reinforces the opinion I wrote 60 years ago: “The greatest threat to individual liberty in this country is unchecked prosecutorial discretion.”

  • veryretired

    When a society attempts to regulate and legislate and control every aspect of human behavior, the legal system becomes a travesty, substituting internal accommodation for any attempt at obtaining justice.

    The legal system in the US has become a money making scheme for the legal profession, and, as a corollary, an expressway to enlarging that group’s enormous political power.

    Justice, or even some semblence of lawful rectitude in society, runs a distant fifth or sixth as a motivation or attainable outcome.

  • David Bouvier

    One pernicious tactic is the way they start at the bottom.

    You target, say, a junior manager in a firm, threaten them with prison if they fight, or let them walk out with a mild reprimand if they “confess” and incriminate their boss.

    The next person up the chain is faced with being named as a co-conspirator with a convicted criminal and is offere the same deal – hard time or an easy ride for incriminating his boss.

    And so on. By the time you have done a few times you get to person they really want, who is faced by all his colleague have to condemn him under threat of them being sent to prison.

    You couldn’t not design a less just process. It is truly kafkaesque.

  • Laird

    @ JP: “I am sure there must have been something legit to put CB in jail . . . .”

    A very common perception, and therein lies the crux of the problem. That is a presumption of guilt in a nutshell: where there’s smoke there’s fire; the prosecutor wouldn’t have brought the case unless there is some pretty convincing evidence; etc. It’s the complete antithesis of what our criminal justice system is supposed to be.

    There is a lot wrong with the US criminal “justice” system, and much of it has been mentioned already. A lot of the problem can be traced to what we’ve done to the jury system. Originally (in ancient Anglo-Saxon jurisprudence) juries were to be “peers” (social equals) of the accused who generally were personally acquainted with the parties (and probably with the events at issue as well), and were well positioned to determine the probity of witnesses. Now, we insist that jury members be the most ignorant among us, so uninvolved with their community, and so indifferent to their surroundings, that they know absolutely nothing of the case. And of course both the prosecution and the defense are busily engaged in trying to strike anyone whom they think might conceivably be favorably disposed to the other side. The prospect of being judged by the worst among us is terrifying, and rightly so.

    We’ve discussed this before, but I am coming to the conclusion that there is no (or at most very little) need for “criminal” law as we currently define it. If someone has been harmed by a criminal action he (or his heirs) should have recourse in a civil proceeding. The point of criminal justice is retribution, not restitution, but that certainly does nothing for the victim who is the only person actually harmed. Yet we persist in the fiction that a criminal act is committed, not against the victim (who at best is merely a “complaining witness”), but rather against the State itself. This is ludicrous.

    The State has an interest (one of its few legitimate interests, in my view) in preventing or deterring crime, but once a crime has actually been committed it should have no other role than assisting the victim in being made whole or otherwise receiving some form of recompense. And if punishment beyond simple restitution is warranted that should simply go to the benefit of the victim. (We already have that with “punitive damages” in civil cases.) And of course if there is no victim how can there have been a crime? Eliminating the current approach to criminal justice in favor of a system focused on restitution would eliminate the thorny problem of “victimless crimes”.

    I’m sure people will reply that there are circumstances where some great wrong has been committed but no individual is in a position to seek justice for it, and that might even be true in some very limited circumstances. But I think that society would benefit greatly if 90% of the criminal code were eliminated in favor of a private approach to criminal justice.

  • Kevin Jaeger

    “I am sure there must have been something legit to put CB in jail”

    I used to think that, but the more I learned about the case the more convinced I became that the case was a travesty.

    It is arguable that he structured his companies and deals so that he derived more benefit than his minority shareholders. But that is at worst a civil dispute between owners over the share of profits, not a federal criminal case.

  • Regional

    So march the guilty bastard in is no longer acceptable, what’s the world coming to?

  • RRS

    Laird,

    I am shocked, shocked to find those words you have kept in your back room.

    The state has no interests.

    Only individuals have interests. Those interests may be held commonly, but they are the interests of individuals and not of the mechanism that constitutes the state.

    It has become one of the great conceits of the current judicial era to fix upon something designated as the compelling interest of the state. How much individual liberty has been sacrificed and will be lost to that concept?

    Oh? And of the Anglo Saxon weal, wherein the hearers of fact to pass judgment, comprised not of peers but of those with personal familiarity of the circumstances and whose role should not be confused with the political assurances obtained by Norman barons at Runnymede?

  • Laird

    Mea culpa, RRS, I should have said “functions” rather than “interests”. Satisfied?

    As to your second point, I’m not absolutely certain of that so I’ll concede it. Not sure it makes much difference, though.

  • RRS

    Easy to please; hard to satisfy.

  • John K

    A legal system in which the “Hon” Jon Corzine is walking free one year after $1.6 billion in his care at MF Global “vapourised” is rotten to the core.

  • jerry

    The American Legal System, and that is exactly what it is, a system by and for lawyers, has absolutely NOTHING to do with justice.

    The other frightening aspect, which I heard F. Lee Bailey state long ago is -
    ( paraphrasing here – been many years )
    People go to trial thinking that because they are innocent, they have nothing to fear. They could not be more mistaken. I’m not saying everyone in prison is innocent but there are a LOT of innocent people in
    jails !!!

  • Richard Thomas

    Laird, there is also the issue of preventing repeat offenders. Some people just need locking up.

  • Laird

    No, Richard, they just need shooting. We lost something when we gave up the concept of outlawry.

  • RRS

    Sir Richard,

    If you think that is an objective of what is today the American Criminal Justice System, and if you happen to reside here perhaps you need a time-out.

  • thefrollickingmole

    A large part of the rot can be traced back to the absolute corruption caused by defense lawyers in the US.

    To wit: The right to remain silent.
    Yes it always existed in one form or another, but a jury used to be instructed they were allowed to have a negative inference if someone used it.

    We just had a case here where a lawyer who designed the prosecution system the police are to follow was tried for the murder of his wife.

    A judge only trial, with him not uttering a word in his own defense. Lawyers here found that a wonderful thing..
    Oh and of course a lot of the trial ended up with “countable so-and-so, did you check box 3 while spinning wither-shins around a sacred oak on all hallows eve”?

    The move to the horrible plea bargaining abortion that is the US system springs from ridiculous “protections” of a minority of defendants (OJ etc)

  • RRS

    T F M -

    Defense counsel do not have the unchecked discretionary powers of prosecutors.

    AS to plea bargaining you need to read the disinterested scholars like Stuntz before you join the MSM in jumping to such conclusions from the heights of ignorance.

    Another enlightenment, if permitted by such fixed conclusions, may be offerred by reading the legislation creating criminal statutes and noting their proliferation over the past 20 years, as well as the amorphous conduct descriptions. Everyone is a criminal!

  • 'Nuke' Gray

    There is one point that I prefer about the British system, which we here in Australia have copied. The use of gowns and wigs seems old-fashioned, but at least juries won’t be over-impressed by the expensive suits worn by either lawyer.

  • 'Nuke' Gray

    I wonder if the world of Judge Dredd is really so far away? Quick justice, no lawyers, no juries to be assembled- bliss!!!

  • Rich Rostrom

    The American criminal justice system has been twisted into its present mangle by well-meaning efforts at “reform”.

    For instance, the “exclusionary principle”, under which entirely valid evidence is excluded from a trial if the defense can find some favorable interpretation of the Fourth Amendment. Many trials hinge not on whether the defendant is guilty, but whether a search warrant covered some particular location, or a police officer was justified in looking somewere.

    Jury selection is another area which has been elaborated enormously.

    Yet another area is in death penalty appeals. Here in Chicago, a mass murderer was apprehended with the bodies of literally dozens of victims buried in his cellar, and confessed immediately. He was not brought to trial for over a year; the trial took over a month; and post-conviction appeals took 14 years before he was finally executed.

    That is the sort of burden our justice system carries even in cases of absolutely certain guilt. Yet one still reads of miscarriages of justice.

    That indicates that these “reforms” have done little to improve the accuracy of the system, while adding enormously to its costs.

    Meanwhile, prosecutors, adapting to the fact that they cannot try more than a tiny fraction of the accused criminals, have adopted the plea-bargain as an alternative.

    And no, drug legalization wouldn’t help. Drug cases are only a fraction of the total load; and a large portion of robberies, murders, assaults, and rapes are committed by drug-addled criminals.

    As for the U.S. rate of incarceration – if one considers the incidence of rape, murder, armed robbery, burglary, auto theft, and assault, and appropriate sentences for these crimes, there should be more people in prison.

    There is also the problem of the mentally ill. Under U.S. law it is extremely difficult to confine even the obviously demented until they do something criminal – and go to prison. In some areas up to half of inmates are psychiatric cases.

  • 'Nuke' Gray

    Why was my first post smitten? I was just commenting on the desireability of lawyers being forced to wear gowns in British-inspired law courts, so juries won’t be swayed by the price of the suit that each side wears. What’s wrong with that?

  • thefrollickingmole

    RRS

    I look at it more as a retarded arms race.

    Yes prosecutors have too much leeway.
    To counter that defense lawyers have been given their own box of “tricks”.

    The endless refining of both sides “tricks” has come at the expense of justice.

    It is now a system of rules, as rehearsed as a Kabuki theater in which all sides (judge, prosecution, defense lawyer) all have a good idea of innocence/guilt, but are too wrapped up in process and the “win” to serve justice.

    I absolutely agree with you on the insane proliferation of laws.
    We arent in disagreement, I consider the legal system deeply broken, I just tend to disagree on one of the core reasons why its rooted.

  • Two people are charged with the same crime. One of them is in guilty, and the other is in fact innocent. They are both urged to plea bargain. The guilty one is cynical about the system, does in fact plea bargain and gets a lesser sentence. The innocent one insists on going to trial because he is, well, innocent and will not plead guilty to a crime he did not actually commit. If he is then acquitted, then justice has been done. If he is found guilty, though, he gets a much harsher sentence than the guilty man who simply plea-bargained.

    That’s basically my problem with plea-bargaining.

  • Paul Marks

    The 50 States vary – although not own of them (not even Arizonia now) has the basic principle of American courts in the 19th century. i.e. than an accused must be able to hire anyone he wants to defend him.

    Now, unless you have a law license (and on and on) no appeal to the jury from you. So no Abe Lincoln “rail hand to court room” lawyers.

    American lawyers are now a CASTE – and the law reflects their caste interests.

    And juries – yes, not honest working people. More likely daytime television watchers (and television shows since the early 1960s always show businessmen in a bad light) on welfare.

    And the Federal “Justice” system?

    An abortion – from start to finish.

    A conviction machine – designed to grind down people the Federal authorties decide to pick on.

    As I say above – some of the 50 State legal systems are better than other, but the Federal system is hopeless (totally hopeless).

    And the chances of it being reformed are ZERO – they really are.

    Both in criminal and in civil law.

    Think about that (and who would deny it?).

    The Federal legal system (both criminal and civil) is totally hopeless – if justice is done in it, it is by accident (the modern system is designed with justice being no concern whatever).

    And there is no hope (none) that the Federal legal system is going to be really reformed.

    Sometimes there is reform at State level (such as Governor Perry, a non lawyer, reform of the Texas legal system) – but people will laugh in your face if you suggest that the Federal system is going to be reformed, the STRUCTURE is now hopelessly corrupt.

    Do I really have to spell out the logical conclusion of the above?

    Can not people work it out for themselves without me having to say it?

  • Laird

    Paul, lawyers have always been a “caste” (a guild, actually). Even Lincoln couldn’t just go from reading law books by the fire to representing people in court; he had to “apprentice” himself to a practicing lawyer for a while before he could be admitted to the bar. The rise of law schools (as opposed to “reading” for the bar) is a relatively recent phenomenon, but restrictions on who could represent others in court is not. It’s been that way for as long as there have been courts.

    So far no one here has mentioned jury nullification. That is also an ancient principle of anglo-saxon law; it goes back to the trials of William Pitt in England and Peter Zenger in America (long before there was a United States). It’s an indespensible tool for keeping prosecutors, courts and even governments in check, which of course is why judges hate it. And even though it has been acknowledged as being constitutional by the US Supreme Court it is routinely and systemmatically suppressed by lower courts. (In my district, the federal jury questionnaire, supported by penalties of perjury, has several questions specifically directed at jury nullification which serve to keep off any jury anyone who supports the concept.) The Fully Informed Jury Association does great work in spreading knowledge of jury nullification. It deserves widespread support.

  • Paul Marks

    Laird even quite recently the courts of Arizonia (or rather the lawyers that control them) took unlawful action to keep “unqualified” people from being employed to represent clients in court – the law has now been changed to block such people (as with the other 49 States) but for awhile the judges and other such in Arizonia just blocked people (unlawfully).

    If the people of Arizonia had some spine (the sort that is needed for “jury nulification”) they would have got some tar and feathers and ……

    Just as the people in New Hampshire would have when the judges (elected by nobody) imposed a State wide property tax on the people – in order to throw money at the government brainwashing centres (the “Public Schools”).

    Like the “national debt” I expect no action from the people – who are brainwashed and spineless.

    The present system will carry on till it collapses (which will not be long now – although the collapse will be terrible).

    As for old style guild restrictions versus modern university “qualifications”.

    Well the modern system has BOTH of course.

    But better the former than the latter.

    And better yet – NEITHER.

    If a group of people doing legal work (or medical work or plumbing work) wish to set up an association and say “do not empliy anyone outside our group – they know nothing YOU WILL DIE!”

    That is fine – totally fine.

    But should such people say that a person in court can not employ anyone he so wishes (apprenticed or not) – that is not fine, not fine at all.

    If they do that (via some judge who is in sympathy with them) – then the tar and the feathers should come out…..