You Won’t See This on TV
A former public defender on the broken gears of American criminal justice
Sep 19, 2013
20 Min read time
The truth about America's broken criminal justice system is significantly more interesting than scriptwriters’ fiction.
For the past four semesters I’ve taught a criminal justice–themed freshman composition course at a large public university in the Midwest. Each semester I’m amazed at the level of interest my students have for the topic of criminal justice. They’ve spent hundreds of hours watching Law & Order and CSI, read countless mystery novels and “true crime” stories, and sat through big-screen courtroom dramas galore. And yet each semester I’m also amazed by how little they actually know about how the American system of justice works.
In my previous career as a public defender who served thousands of clients, I tried everything from juvenile delinquency allegations to first-degree murder cases. I'm lucky (or, in certain senses, unlucky) to have a perspective on the American criminal justice system that most will never have. I can tell that my students care deeply about justice but do not have the language or the facts they need to discuss the criminal justice system cogently. They are uninformed because popular media, however it is packaged, is ultimately aimed at entertainment—or the provocation of misdirected outrage—rather than instruction.
Hollywood is always an unwelcome participant in conversations about criminal justice, in my view. Certain scions of criminal justice–themed entertainment argue that they are educating a generation—Dick Wolf, the creator of Law & Order and its spawn, is one prominent example—but the truth is significantly more interesting than scriptwriters’ fiction.
That is why it’s important to help set the record straight. Hopefully these fifteen truths will act as a starting point for those civilians who want to change our criminal justice system but are not sure where to start.
None of what follows should be construed as legal advice. This is merely a bare-bones description of how important sectors of our criminal justice system work. You could learn much of this simply by sitting in the public gallery at a local courthouse for a few weeks, or by reading any trial practice manual intended for working attorneys.
• • •
1) Prosecutors are trained to charge cases using the maximum allowable number of criminal statutes, with preference always given to the statutes with the highest maximum term of imprisonment. The reason for this is that prosecutors know that more than 90 percent of their cases will end with a plea negotiation, so charging what is reasonable rather than what is possible is strategically unwise. The assumption behind what is termed “over-charging” is that some fresh-faced defense attorney will ensure, through zealous plea negotiations sometime in the future, that the final disposition of each case is a fair one. The problem is that with so few public resources devoted to the defense of the indigent in court, poor defendants are often assigned a well-intentioned but overworked attorney. The predictable result is that defendants too often plead to charges that necessitate terms of imprisonment that even prosecutors—were they unbiased observers—would not consider just.
As to why nearly every criminal statute in America is written so broadly that it can be egregiously misused in this way, the answer is simple: politicians enact criminal statutes, and voters’ limited understanding of the criminal justice system means that at the polls they nearly always reward whoever endorses the broadest and most draconian laws. How else to keep our communities safe from the ever-present scourge of violent crime, even when violent offenses are decreasing in number?
By the time you or a loved one of yours has been caught in the trap of an overbroad criminal statute with an outrageous series of penalties attached—often mandatory ones that even an independent-minded judge cannot contravene—it is too late to get wise to how obtuse, inflexible, and nonsensical most of our criminal statutes are. While the U.S. Sentencing Commission recently announced that it would revisit mandatory minimum sentences, there is little hope of repairing the devastation such sentences have already caused. Nor is there much reason for confidence that any proposed changes will stem the tide of injustice. While Attorney General Eric Holder’s August 12th announcement that mandatory minimum sentences will no longer be sought for low-level, nonviolent drug offenders is a good start, the fact that sentencing guidelines remain a largely political calculation means that the next presidential administration may well undo whatever progress Holder’s Department of Justice makes this year.
2) Most defendants charged with a crime are guilty of doing something contrary to the law, which is a good thing—else we find ourselves living in a fascist police state. However, for the reasons stated above, it’s often the case that a given defendant did not do precisely what he is charged with doing and consequently will be convicted for doing something other than what he did do. The most common juridical misfire of this sort is one in which a defendant is charged with and convicted of a crime more serious than what he’s actually responsible for. Rarely are defendants charged under criminal statutes less serious than the ones that would accurately describe their conduct. This is why actually innocent or minimally culpable individuals sometimes do confess either to crimes they didn't commit or to crimes much more serious than those they are really guilty of. They are afraid, not unreasonably, that at trial they will be wrongfully convicted on one or more over-charged counts and thus sentenced to a much longer county jail or state prison term than they would have faced under a plea agreement.
Judges, prosecutors, and police and probation officers know how harrowing even a single night spent in a cage is.
3) However a prosecutor’s charging decisions and the ensuing plea negotiations play out, they will end with a plea bargain more than 90 percent of the time. What this means is that more than 90 percent of all criminal defendants willingly take responsibility for their actions and accept punishment rather than put the government and taxpayers through the time and expense of a trial. Given that a notable fraction of the remaining 10 percent of defendants are actually innocent (or guilty of only non-criminal violations) this statistic means that well over 90 percent of those defendants who are rightly accused will, in response, take responsibility for their actions and accept a negotiated punishment considered acceptable to all parties. Moreover, many of the criminal cases that do go to trial would not have had the prosecutor assigned to the case made a more just offer—one more in line with historical sentencing patterns. All of this contradicts the popular notion, often pushed by agenda-driven television pundits and craven politicians, that accused criminals enter the courtroom expecting or demanding to “get off” scot-free.
4) One might think that because more than 90 percent of criminal cases are resolved short of trial with a negotiated punishment, Americans are being incarcerated with alarming regularity. And they are, but only as compared to the citizens of other nations. In my experience, a small fraction of criminal charges result in the incarceration of the defendant for more than a weekend, and the overwhelming majority of cases are resolved without any incarceration whatsoever. The reason for this is not that politicians are soft on crime, but rather that judges, prosecutors, and police and probation officers know how harrowing a punishment even a single night spent in a cage is, and they recognize that most offenses are not serious enough to warrant that sort of brutalization.
Repeat players in the criminal justice system also acknowledge something else most Americans don’t: most accused criminals are little different than you or me, though their lives are commonly filled with substantially more poverty, misery, bad luck, resource scarcity, and confusion. They are members of our communities and their participation in civil society cannot be reduced to a series of words on a complaint or indictment. The ranks of the nation’s shadowy and permanent criminal underclass are thin indeed.
Given how overbroad most criminal statutes are, most Americans probably have, at some point, technically committed a misdemeanor-level crime, such as simple assault, theft, a driving offense, a trespass, an act of vandalism, or a more esoteric malfeasance such as unsworn falsification, hindering prosecution, or misconduct after a car accident. But most of us live in lightly policed neighborhoods and are therefore never caught or punished for our misdeeds. That doesn’t change the fact that nearly every American is, at least by the language of the statutes their own elected representatives enacted, most likely a criminal. For instance, in New Hampshire the government need only prove that you made physical contact with someone in the absence of an express or implied privilege to do so in order to convict you of simple assault, a charge with a maximum penalty of a year’s imprisonment. Theft statutes are even broader, and many Americans have knowingly or unknowingly run afoul of them.
5) Only a miniscule percentage of criminal cases are of the sort irresponsibly fetishized by films, novels, and television. The overwhelming majority of offenses committed by Americans (bordering on 90 percent; frustratingly, publicly released crime data always make this figure nearly impossible to definitively nail down) are nonviolent offenses with either no discernible victim or a victim whose only legally discernible loss is a small monetary one. This is good news: America is a less dangerous and less cruel place than Hollywood would have us believe. And as rare as violence already is, it is even more extraordinary to see violence that results in serious injury—one reason more than half of violent crimes are committed by individuals who know one another. Still, stranger-on-stranger assaults make up nearly 100 percent of what we watch and obsess over on television. This is another way in which television’s portrayal of the criminal justice system carries a political cost. The less we understand about which crimes most commonly plague us, the less we are able to enact meaningful reforms to the system.
6) Progressives often seek alternative forms of sentencing not because they don’t take crime seriously, but rather because, given all of the foregoing, it is clear that most of those charged with crimes will be returned to their communities within 72 hours of their court dates, if not on the same day. It seems better, therefore, not to employ punitive measures that may induce them to engage in even more egregious antisocial behavior upon their return to, for instance, your neighborhood.
Just as troubling as the needless incarceration of so many nonviolent offenders is the incarceration of indigent defendants pre-trial. These defendants often spend months in unhealthy and dangerous county lockups before having their cases dropped or pleading guilty under plea agreements that carry no jail time.
7) Alternative sentencing is a popular cause in progressive intellectual circles not merely for public safety reasons but because, contrary to what you might hear from tough-on-crime politicians, “evil” does not rank among the major reasons crimes are committed in the United States. This too is a good thing, as the criminal justice system is poorly equipped to understand and combat actual evil on a grand scale. Thankfully we can clearly determine the proximate causes of most criminal offenses, and in turn the sort of responses to those offenses most likely to ensure the offender does not reoffend. The most common factors behind criminal activity in America are drug and alcohol abuse, mental illness, resolvable anger-management issues, homelessness, joblessness, lack of education, low intelligence, lack of common sense, and a lack of proper parenting or modeling during childhood and young adulthood.
No one is more clearly charged with the daily defense of the Constitution than a criminal defense attorney.
Alcohol abuse is likely the most common driver of crime. Alcohol was involved in more than half of the domestic violence cases I tried as an attorney. Meanwhile marijuana was involved in less than 0.5 percent of those cases. For DUI cases, the respective figures would be 100 percent and less than 1 percent. Everyone in the criminal justice system knows that alcohol is an exponentially more dangerous drug than marijuana.
8) Criminal trials are separated into two phases—the fact-finding phase and the sentencing phase. So in fact no American can defend himself in court by claiming he had a bad childhood. At most, discussion of a defendant’s childhood or teenage years arises in the sentencing phase of a criminal case, after the defendant has been found guilty but before the court has determined the appropriate punishment. The sorts of issues television pundits like to claim are regularly raised in criminal cases—for instance, insanity, child abuse, racism, and societal influence—are almost never raised in a criminal trial at any stage of the proceedings.
9) If the angry demagoguery of television pundits is to be believed, defense attorneys are reviled within the criminal justice system because they will do anything to win a case and don't care about the consequences. In fact defense attorneys are professionals bound by the same strict code of ethics as prosecutors, and thus subject to the same penalties (such as disbarment) if they violate their sworn oath to the Constitution and their state bar’s code of conduct. The overwhelming majority of defense attorneys actually are neither disliked nor disrespected by their counterparts on the other side: police officers, prosecutors, probation officers, correctional officers, and victim-witness advocates.
No one is more clearly charged with the daily defense of the Constitution than a criminal defense attorney. Even so, the political right, which regularly decries supposed trampling of the Constitution by the Obama administration and other perceived foes, is forever seeking to reduce public expenditures on indigent criminal defense. One explanation for this contradiction is that conservatives, like progressives, have their own “pet” constitutional amendments. The political right fetishizes the Second Amendment (and carefully selected applications of the First, Tenth, and Fourteenth), yet regularly ignores or even encourages assaults on the Fourth, Fifth, Sixth, and Eighth.
10) Judges have nothing concrete to gain from granting leniency to criminal defendants, which is why, contrary to what pundits and laypeople often claim, they rarely do.
Widespread belief in the leniency of judges has been with us for decades. In 1981 a Boston Globe survey found that 70 percent of respondents believed judges to be too easy on accused criminals. A1990 Northwestern University survey returned similar results, as did the Honolulu Star-Bulletin in 1996. The trend continued in 2012, when an American Society of Criminology study found that 60–70 percent of laypeople consistently report dissatisfaction with the leniency of criminal sentencing in their communities. And television pundits thrive on the fantasy that the criminal justice system regularly releases dangerous offenders. Bill O’Reilly sought to convince Fox News viewers in 2009 that Vermont’s criminal justice system was systematically lenient in child rape cases. In testimony before Congress in 2006, HLN’s Nancy Grace made a similar claim about the legal system in general.
A more thorough review reveals the truth: judges routinely face public and private harassment or are denied promotion or election if they spare the rod even slightly for a criminal defendant who later reoffends or whose crime has, as is so often the case, received negative publicity. Yet there is no consequence for wrongly overruling a defendant’s objections before or during trial or for sentencing even a defendant with no prior record to the maximum possible penalty following a conviction. What is so concerning about this state of affairs is that the Constitution—to the extent that its bare-bones language lends itself to any clear prescriptions 225 years later—almost always favors civil liberties over exertions of government power. In a political and professional culture that habitually rewards judges for favoring prosecutors’ legal theories and offers few disincentives for doing so, Americans’ civil liberties are, by definition, bound to diminish over time.
11) Prosecutors do not, as the nation has consistently been misinformed by the voiceover intro to Law & Order, represent “the people.” Nor do they represent the community, the citizenry, or crime victims. Prosecutors have one boss: the government. As for the rest of the major players in the criminal justice system, their allegiances break down as follows: defense attorneys represent individuals charged with offenses; judges, like prosecutors, represent the government (albeit a different branch than prosecutors do) as well as the impartial face of the law; and police officers represent the letter of the law, whether or not that law is favored by, or beneficial to, the community it operates upon. We might say that the police represent those state and federal politicians who, by writing hundreds of ill-conceived and politically conscious criminal statutes, give law enforcement its explicit marching orders.
The only place “the people” are represented in the criminal justice system is in the jury. What this means is that if an entire community opposes a prosecution but the government still wishes it to proceed, it will proceed. Likewise, if a crime victim independently decides not to pursue a case and the government still wishes to proceed, the victim will be forced to comply (often under the threat of prosecution themselves) with all government directives. This is why, generally speaking, prosecutors are apt to favor trial-by-judge (known as a “bench trial”), and defense attorneys are apt to favor trial-by-jury. Defense attorneys prefer juries because most American juries, comprised as they are of workaday American citizens, do not view criminal cases—or American citizens charged with crimes—in the blinkered way government agents do. In jurisdictions that pay their public defenders a reasonable salary, the acquittal rate at trial is consequently very high, approaching 50 percent in some places. What this tells us is that average Americans, exposed in real time to their own criminal justice system, are surprisingly likely to oppose government actions and positions when presented with any reasonable alternative by a talented advocate for the defendant.
Officers worried about offenders being acquitted will, with some frequency, perjure themselves in court.
A juror who votes to acquit may face difficult questions—for instance, “If someone killed a member of your family, wouldn’t you want them dead?” A reasonable response is “yes.” What this question ignores, however, is that our system of prosecution and defense is not designed to be a vehicle for vengeance, but for our communal commitment to the objective administration of justice. The people in the world least qualified to set the punishment for an offender, let alone to determine their guilt, are those who are emotionally invested in the case.
This is why, if jury selection processes were as rigorous as they should be—individual questioning of jurors generally being permitted in only the most serious of cases—most Americans would be found ineligible to serve. Jurors must not only agree to apply the law as it is written; they must also accede to all of the foundational principles of our system of justice. For instance, jurors must acknowledge the presumption of innocence, that prosecution witnesses do not have special status, that the burden of proof rests exclusively with the government, that they can have no bias or prejudice toward any person in the case, and that they will consider only the evidence admitted in court. It is because trial juries do, in spite of poor vetting, frequently understand these principles that they sometimes reach verdicts that citizens following along at home would not: they’ve sworn an oath no television-watcher has, and one that many television-watchers could not.
The recent prosecution of George Zimmerman is a case in point. The jury functioned properly, yet its verdict was upsetting, even baffling, to millions. But it is not hard to understand how jurors reached their conclusion. The jury heard hours of testimony and saw reams of hard evidence almost no casual observer of the case did. And it was limited to issuing its verdict based upon the information before it at trial. Jurors cannot and must not fill in the gaps of a lackluster prosecution, nor presume motives or facts not placed into evidence. The predictable result is that jury verdicts in complex, highly publicized cases often don’t match the expectations of those who have only heard about the trial via pundits, journalists, or hearsay. Even those who watch much or all of a criminal trial on television are not seeing the same evidence a sitting jury is. Juries are instructed to gauge testimony not only by its content but also by a totality of factors—including, for instance, body language—that no one outside the courtroom can properly assess.
12) Defense attorneys want to see crime rates reduced as much as everyone else does. Defense attorneys do not defend accused criminals because they enjoy, admire, wish to encourage, or appreciate high crime rates or criminals. Most do so, instead, because they believe the adversarial system of justice we use in the United States is the best truth-seeking mechanism ever created by humankind. Also, they see defending the despised and downtrodden as a form of public service, which should make them more popular in a country bursting with self-reporting charitable Christians. Public defenders often seek their employment for the same reason police officers enter law enforcement: to be useful to their communities.
13) Most criminals are white, most criminals are male, and the more serious the crime, the lower the offender’s recidivism rate and therefore the less likely it is to ever happen to you or anyone you know. Yet these statistics are imperfectly reflected in the justice system, because even in majority-white jurisdictions people of color are grossly over-represented in courts and prisons. The two primary reasons for this are that minorities are stopped, arrested, charged, convicted, and jailed at a higher rate than whites, even for comparable crimes, and that we live in a country in which minorities are more likely than whites to live in poor neighborhoods that are aggressively policed. As for the gender of those caught up in the criminal justice system, while it's true that the majority of criminals are men, women commit crimes at a higher rate than their involvement with the criminal justice system would suggest. In a sad counterpoint to the criminal justice system's unequal treatment of minorities, women are stopped, arrested, charged, convicted, and jailed at a lower rate than men, even for comparable crimes.
14) Most police officers are honest and do the best job they can. Typically it is police administrators and the court system itself—the judge, lawyers on both sides—that do a poor job of instructing officers on how best to follow the Constitution on the beat. It is also true that being a police officer is dangerous and difficult, so police officers often make mistakes simply because they’ve been called upon to make good decisions under the worst possible conditions. And because police practices too often emphasize hard data—tallies of stops and arrests each officer makes, or the number of convictions secured for local prosecutors—over the equitable treatment of individual bystanders and suspects, there are numerous built-in disincentives against conscientious police officers admitting their investigative errors in court.
As a result many, if not most, police reports—the documents officers testify from in court proceedings—are inaccurate. Officers worried about offenders being acquitted will, with some frequency, perjure themselves in court. Such perjuries are often committed with the best of intentions and are rarely punished by the justice system because police officers, unlike defendants, are repeat players. Any judge who rules from the bench that a police officer has told even a single lie or half-truth on the witness stand must take this felonious behavior into account in every future case in which that officer testifies. And since this would lead to madness—cases routinely kicked out of court because a compromised officer still on the department payroll is the chief witness for the prosecution—judges more often than not take at face value what officers say in court. They do so even when they do not believe what they are hearing, which is often. Indeed, many judges have become so accustomed to this state of affairs that they credit police testimony that any reasonable layperson would find comically implausible.
15) If middle- and upper-class American communities were policed in the same manner working-class and working-poor communities are—that is, if standard operating procedures, applicable criminal codes, and the U.S. Constitution were applied equally, at both the arrest and prosecution stages, against citizens of all socioeconomic classes—a substantial percentage of our nation’s criminal statutes would soon be appealed, repealed, or dramatically amended.
Photograph: Aapo Haapanen
While we have you...
...we need your help. You might have noticed the absence of paywalls at Boston Review. We are committed to staying free for all our readers. Now we are going one step further to become completely ad-free. This means you will always be able to read us without roadblocks or barriers to entry. It also means that we count on you, our readers, for support. If you like what you read here, help us keep it free for everyone by making a donation. No amount is too small. You will be helping us cultivate a public sphere that honors pluralism of thought for a diverse and discerning public.
September 19, 2013
20 Min read time