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.
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.
by Seth Abramson, Boston Review | Read more:
Image: Aapo Haapanen
