From
Blackstone to Bentham: Why Wrongful Conviction Is On The Rise
by
Paul Craig Roberts
The
death penalty debate was renewed last year when Republican Gov.
George Ryan of Illinois imposed a moratorium on capital punishment.
Gov. Ryan's confidence in murder convictions was shaken when he
found that there were more innocent than guilty parties on death
row. Of 25 condemned murderers, 12 were executed and 13 on death
row were cleared of capital-murder charges.
The
debate was given added impetus by Carl M. Cannon's article in the
June 19, 2000, issue of National Review, and by an academic study
released in June, 2000, that concluded that two-thirds of death
penalty convictions were successfully appealed during 1973-95. The
study has faults, but even when corrected for errors, it still shows
a high rate of wrongful conviction.
The
death penalty was politicized for the November presidential election
by the Chicago Tribune's investigation of 131 executions
in Texas since Bush became governor. According to the Tribune, many
of the cases "were compromised by unreliable evidence,"
bad lawyering and unethical prosecutors.
Conservatives
defend the death penalty, and liberals reject it. This is a worthwhile
debate, but the real issue is wrongful conviction. A defense of
the death penalty as a deterrent or appropriate retribution is not
a defense of wrongful conviction. No one wants innocent people convicted.
Even if they escape execution, innocents still spend years of their
lives in prison awaiting exoneration.
The
broader issue is the high rate of wrongful conviction. Moreover,
wrongful conviction is not confined to capital offenses. If the
justice system cannot convict the right person in murder cases,
or convict the defendant lawfully according to the rules, how can
we have any confidence that police and prosecutors are doing better
when it comes to burglary, white-collar criminals, and drug dealers?
These convictions do not receive the scrutiny that capital offenses
receive. Most result from plea bargains, and plea bargains are seldom
subject to appeal even when the defendant is coerced.
Gov.
Bush defended Texas executions on the grounds that those found guilty
"had full access to the courts. They ve had full access to
a fair trial." This is the response of many conservatives,
and it would be a good one if trials were fair.
But
what if trials are not fair and conviction is not a reliable indicator
of guilt? After five years of research culminating in our recent
book, The Tyranny of Good Intentions, Larry Stratton and I found
that the legal principles that guarantee a fair trial have been
eroded by both good and bad intentions.
William
Blackstone called these principles "the Rights of Englishmen."
Achieved through centuries of struggle to make law accountable and
justice just, the Rights of Englishmen insure that law is a shield
for the innocent and not a weapon in the hands of prosecutors. Liberals
and conservatives alike, in chasing after their favorite devils
drug dealers, environmental polluters, white-collar criminals, and
child abusers have reduced these protective principles to shadows
of their former selves.
The
Rights of Englishmen are: due process, the attorney-client privilege,
equality before the law, the right to confront adverse witnesses,
and the prohibitions against attacking a person through his property,
bills of attainder, self-incrimination, retroactive law, and crimes
without intent.
Each
of these protective principles has been breached. Today prosecutors
create bills of attainder by tailoring novel interpretations of
law to fit the targeted defendant. A favorite tactic is to criminalize
civil infractions, as in the Charles Keating savings and loan case.
We have indictments and trials based not on a statutory violation
but on a prosecutor's "novel theory," as in the Clark
Clifford and Robert Altman case. Even accidents and mistakes in
filling out government forms have been criminalized, as in the Exxon
Valdez and Benjamin Lacy cases. The ancient principle of mens rea
no crime without intent has been obliterated.
Keating
was convicted of a crime that did not exist until he was charged
with it. Keating was caught up in the finger-pointing that resulted
when ill-considered federal policies caused the collapse of the
S&L's and depleted the deposit insurance fund. Bonds issued
by Keating's Lincoln Savings & Loan lost value. Some bond owners
claimed that salesmen had assured them that the bonds were federally
insured. Under civil tort liability, a case could have been made
that the parent organization was economically liable to the bondholders,
if misrepresentation about the bonds security could be proved. Instead,
prosecutors, with Judge Lance Ito's acquiescence, transformed the
civil tort doctrine into a felony. Keating was held criminally liable
for the actions of subordinates even though he neither knew about
nor approved of the alleged misrepresentations of the bonds security.
Keating served four and one-half years in prison before federal
district judge John G. Davies declared his conviction to be a violation
of mens rea and the constitutional prohibition of ex post facto
law and ordered his release.
Clark
Clifford and Robert Altman were indicted on the basis of Manhattan
District Attorney Robert Morgenthau's "novel theory" that
two separate legal transactions comprised a conspiracy of fraud
and bribery. The trial revealed that the indictment was based on
nothing but the prosecutor's speculation, and the case against the
bankers was thrown out of court.
The
Exxon Valdez oil spill in Alaska's Prince William Sound was an accident.
However, the U.S. Department of Justice used an "innovative
legal approach" to bring in a criminal indictment. Exxon was
slapped with the felony charges of "discharging hazardous substances
and refuse without a permit" and "killing migratory birds
without a license." As these are acts of intent, the indictment
surmises that Exxon intentionally ran its tanker aground in order
to discharge hazardous oil and kill migratory birds. This absurd
indictment was not thrown out of court. Instead, it was used to
extract huge sums from Exxon in exchange for dropping the felony
counts.
Ben
Lacy, a 73 year old Northern Virginia apple juice producer, made
some mistakes in filling out waste-water report forms. Federal prosecutors
theorized that Lacy's mistakes were evidence that he was covering
up the pollution of a stream on his property. The stream turned
out to be pristine, but prosecutors were able to keep this evidence
out of court and to try Lacy on their surmise that his mistakes
were evidence of a conspiracy to pollute.
Careless
delegation by Congress of law-making power to regulatory agencies
allows bureaucrats to define criminal offenses by how they interpret
the regulation that they write. Statutory authority is combined
with enforcement authority in the same hands, permitting vast discretion
to regulatory police. A cooperative "offender" may get
off with a civil penalty, whereas a person who sticks up for his
rights may receive a criminal indictment. The ability of bureaucrats
to spontaneously create criminal offenses by bureaucratic interpretation
makes law uncertain and unable to fulfill its purpose to command
what is right and to prohibit what is wrong.
All
of the legal rights that restrained government and made men free
have taken a beating in the 20th century, especially
in the last two decades. The attorney-client privilege is today
seen through a Benthamite lens, and attorneys who aggressively defend
their client face indictments themselves.
Jeremy
Bentham despised William Blackstone for emphasizing law as a restraint
on government. Government needed to be unrestrained, Bentham argued,
in order to do more good. With regard to criminal law, Bentham argued
that it is wrong-headed to make conviction so difficult when government's
purpose is to increase the general level of happiness by combating
crime.
Bentham
believed in proactively rounding up people who were likely to commit
crimes. He believed in compulsory self-incrimination and wanted
to revive torture. He hated the attorney-client privilege and believed
that lawyers should aid prosecutors in convicting their clients.
Bentham's
belief about the proper function of lawyers was given expression
in 1990 when the federal government indicted the blue-chip law firm,
Kaye, Scholer, Fierman, Hays & Handler, for not divulging to
thrift regulators information pertaining to its client, Charles
Keating and his Lincoln S&L. Assistant Attorney General Stuart
M. Gerson used Bentham's own words to brand the law firm "an
abettor of crime" for not ratting on its client, even though
the question of crime had not been established. To win its point
the government froze the assets of the law firm and also the personal
assets of its 400 partners. The asset freeze seems itself to have
been a violation of law, and the government was heavily criticized
for it by the New York City Bar Association and prominent legal
ethicists. But the asset freeze forced Kay Scholer to settle the
case by paying $41 million. In the aftermath, law professors, such
as Kevin Reitz in the Duke Law Journal, now warn that "under
current law, it could be a serious mistake for a suspect in a criminal
case to obtain counsel." In 1999 Janet Novack reported in Forbes
magazine that federal prosecutors are attempting further breeches
in the attorney-client privilege by threatening a company's lawyers
with indictments for defending their client.
Americans
are routinely attacked through their property, as asset forfeiture
laws are used less for criminal enforcement and more for budgetary
reasons. A 1990 Justice Department memo for U.S. attorneys stressed,
"Every effort must be made to increase forfeiture income during
the remaining months of 1990." The opportunity to augment law
enforcement budgets with asset confiscations has skewed the efforts
of law enforcement toward asset seizure and away from the apprehension
and prosecution of criminals. In 80 percent of asset confiscations,
no charges are brought against the confiscated owners.
The
asset forfeiture laws are a perfect example of Sir Thomas More's
warning against cutting swaths through the law in order to chase
after devils. The forfeiture laws were passed in order to strengthen
the war against drugs. But as House Judiciary Committee chairman
Henry Hyde (R, IL) has warned, the laws target property, not crime.
The result is that Americans face "endless possibilities to
be caught in the snare of government forfeiture." Grandmothers
have lost their homes because of police suspicion that grandchildren
used drugs in the house. Owners have lost rental properties, motels,
yachts and airplanes because tenants or customers brought drugs
or prostitutes to the property. Many have had cash confiscated because
any amount over $100 constitutes "probable cause" for
police to infer intent to buy or sell drugs.
Recently
Rep. Hyde had a small success in making asset forfeiture more difficult,
but the federal laws have spread into the states. Today many states
permit civil forfeiture for any criminal activity. New Jersey allows
forfeiture for any alleged criminal activity.
Every
right emphasized by Blackstone has taken a pounding. Retroactive
law is commonplace. Retroactive tax increases have become part of
life. Superfund liability reaches back generations and falls upon
people and organizations that never contributed an ounce of hazardous
waste to a Superfund site. In child abuse cases, due process and
the right to confront one's accusers vanished when anonymous allegations
became the sole basis for seizing children and placing them in foster
care. Neighborhoods legally using local zoning ordinances to keep
out commercially operated half-way houses and drug treatment clinics
have been coerced by the Department of Justice and the Department
of Housing and Urban Development into abandoning their right to
equal standing in the law.
Two
other factors combine with the loss of the legal principles that
protect the innocent to produce a high rate of wrongful conviction:
the breakdown of the prosecutorial ethic and plea bargains.
For
centuries prosecutorial behavior was restrained by conscience and
by the carefully inculcated ethic that the prosecutor's duty is
to serve justice by finding truth. The purpose of a trial was to
weigh the evidence for and against the defendant, not to convict
him at any cost. A prosecutor's career and self-esteem did not depend
on his conviction rate and the number of people he put behind bars,
but, as Supreme Court justices Robert Jackson and George Sutherland
put it, on seeing that justice was done. A prosecutor who suborned
perjury or withheld exculpatory evidence in order to win a case
was seen as a shameful figure.
Crowded
court dockets, bureaucracy, budgetary pressures, and careerism contributed
to elevating ambition over justice. The emergence of moral causes,
or ends that justify the means, such as "saving our children
from drugs" and "making environmental polluters pay,"
contributed greatly to the breakdown of prosecutorial restraint.
Today a prosecutor who gives the defendant the benefit of the doubt
is regarded as a failure. Robert Merkle was appointed U.S. Attorney
by President Reagan and served in that post from 1982 to 1988. Prosecution,
he says, is "a result-oriented process today, fairness be damned."
Merkle says prosecutors are pressured to justify budgets with convictions,
"and that causes them to prosecute absolutely bogus cases to
get those statistics." Many former U.S. attorneys have spoken
out on this issue. In 1998 Arnold I. Burns, Deputy U.S. Attorney
General in the Reagan administration, wrote in the Wall Street
Journal that "it is time for a sober reassessment of the
power we have concentrated in the hands of prosecutors and the alarming
absence of effective checks and balances to prevent the widespread
abuse of that power." Perhaps the telltale sign of the seriousness
of the situation is the law school textbook, Prosecutorial Misconduct,
now in its second edition. In an honest criminal justice system,
there would be no need for such a textbook.
Withholding
exculpatory evidence has become routine, and suborned perjury is
often the only "evidence" in a case. Juries are unaware
that in many cases the witness giving incriminating testimony is
not only rehearsed in the role but also paid by the prosecutor with
money or reduced prison time. In 1998 the Pittsburgh Post-Gazette
summed up its investigative reports of prosecutorial misconduct:
"Hundreds of times during the past 10 years, federal agents
and prosecutors have 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." It casts doubt on the
integrity of the entire criminal justice system when the limited
resources of one newspaper are sufficient to expose hundreds of
cases of criminal behavior by federal law enforcement officials.
In
recent years the prosecutorial ethic has hit rock bottom with the
new practice known as "jumping on the bus." Informants
sell information on unsolved cases to prison inmates. Sometimes
prosecutors and federal agents feed the information directly. The
inmate memorizes the case, which gives him the appearance of having
inside knowledge. Then the inmate comes forward with information
to trade in exchange for a reduced sentence, which under the sentencing
guidelines can only be granted at a prosecutor's request. Once a
deal is struck, the inmate works with the prosecutor to concoct
a case.
Sometimes
"jumping on the bus" is used against a person whom prosecutors
believe to be guilty but against whom they have no evidence. At
other times the goal is to close unsolved cases, and the inmate
supplies the name, perhaps that of another inmate. Formerly, self-serving
accusations by criminals were treated as leads to be investigated.
If the leads panned out, evidence still had to be marshaled. Today,
the accusation is the evidence. Prisons are filled with people falsely
convicted by other inmates, who use information from confidential
federal law enforcement files to corroborate crimes they have not
witnessed and to concoct testimony against people who did not commit
them.
Inmates
have displayed more conscience than many U.S. attorneys and have
repeatedly blown the whistle on the scheme. According to investigative
reports in the Pittsburgh Post-Gazette in 1998, the Department
of Justice and FBI have repeatedly turned a blind eye. The reprehensible
practice of "jumping on the bus" is so ingrained in law
enforcement that it cannot be officially acknowledged without having
to release a large number of people from prison and sustain a large
number of wrongful conviction lawsuits. Since no attorney general
is going to attempt such a clean-up, it means that in the U.S. today
the criminal element has a big say in who goes to prison.
Weak
and fabricated evidence would run a higher risk of exposure if it
were tested in court. But according to the U.S. Department of Justice,
only about one case in 20 goes to trial. The rest are settled with
pleas. Plea bargaining has many deleterious effects on the criminal
justice system.
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 than reduced deterrence.
Plea
bargains undermine police investigative work. As few cases go to
trial, police have learned that their evidence is seldom tested
in the courtroom. Carelessness creeps in. The sloppier the investigation,
the less likely is the right person to be apprehended.
Prosecutors
have found that plea bargaining greatly increases their conviction
rates and that they can coerce a plea by raising the number and
seriousness of the charges they throw at a defendant. Defendants
are swayed by the cost of a defense and by the realization that
conviction at trial on even one of the charges can carry more severe
punishment than a plea to a lesser charge. The sentencing differential
alone is enough to make plea bargaining coercive.
Plea
bargaining originated as a way of meting out punishment in a timely
fashion. But as time passed, plea bargaining corrupted the justice
system by creating a fictional crime in the place of a real one.
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,
as it develops, eventually permits prosecutors to bring charges
in the absence of crimes.
As
a little yeast leavens the whole loaf, systematized falsehoods about
crimes corrupt the criminal justice process. By making the facts
of the case malleable, plea bargaining enables prosecutors to supplement
weak evidence with psychological pressure. John Langbein, a noted
legal scholar, compares "the modern American plea bargaining
system" with "the ancient system of judicial torture."
Many innocent people cop a plea just to end their ordeal. In effect,
we have resurrected torture, because confession and self-incrimination
have replaced the jury trial.
Conservatives
need to understand that the problem of corrupt justice goes deeper
than law enforcement personnel and cannot be corrected by cleaning
out the Clinton DOJ. The very concept of law that protects us from
tyranny has been lost. No longer the people's shield, law has become
a weapon in the hands of government. Justice is no longer a concern
of the justice system.
What
can be done? Nothing without a rebirth of veneration for justice
and the Constitution. Our plight is that law, as defined by Blackstone,
has lost the allegiance of American elites. Jeremy Bentham prevails
with his view that government must be less restrained so that it
can do more good. Legal scholars identify with the causes that coercive
power has advanced. Tyranny is always the consequence of unrestrained
power. That is the reason Americans feel increasingly defenseless
not only in the criminal justice system but also more generally
when facing the government that they supposedly control.
March
31, 2001
Dr.
Roberts is John M. Olin Fellow at the Institute for Political Economy
and Senior Research Fellow at the Hoover Institution, Stanford University.
He is a former associate editor of the Wall Street Journal
and a former assistant secretary of the U.S. Treasury. He is the
co-author of The
Tyranny of Good Intentions.
Copyright
2001 LewRockwell.com
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