Pubdate: Tue, 07 Aug 2001
Source: American Prospect, The (US)
Copyright: 2001 The American Prospect, Inc.
Contact:  http://www.americanprospect.com/
Details: http://www.mapinc.org/media/1072
Author: Wendy Kaminer
Note: Preferred Citation: Wendy Kaminer, "Criminally Unjust," The American 
Prospect vol. 12 no. 15, August 27, 2001
Bookmark: http://www.mapinc.org/prison.htm (Incarceration)

CRIMINALLY UNJUST

It's no coincidence that declining support for capital punishment has been 
accompanied by increased mistrust of law enforcement and discomfort with 
the war on drugs.

A relative lull in violent crime during the 1990s contributed to a 
reconsideration of harsh police practices and prosecutorial tactics. But 
many people are willing to tolerate bad policing so long as it's directed 
at bad guys. Few complain when guilty suspects are deprived of their rights 
and coerced confessions prove true. It's the abuse of innocent people or 
those guilty only of minor, nonviolent offenses that has prompted some 
tentative public review of the current regime.

It's not just the use of DNA evidence to exonerate the wrongly convicted 
that has aroused concern about criminal justice.

The bias and bloodthirst in law enforcement have simply become unseemly.

During the past several years, racial profiling became impossible to 
ignore; even conservatives like Vice President Dick Cheney and Senator 
Joseph Lieberman belatedly condemned it. The awful misdeeds and mistakes of 
FBI agents--from the attacks at Ruby Ridge, Idaho, and Waco, Texas, to the 
framing of Bostonian Joseph Salvati, who spent 30 years in prison for 
someone else's crime--made the nation's premier law enforcement agency look 
like public enemy number one. Confronted with the sheer meanness of their 
government--its continued imprisonment of nonviolent drug offenders, a 
gratuitously cruel campaign against the medical use of marijuana, and the 
expansion of the drug war to public schools, where students are treated 
like suspects and randomly tested for drugs--people are apt to rediscover 
traditional American values, like fairness and respect for individuals.

On occasion, the press has collaborated with the law enforcement system in 
trampling people's rights: Irresponsible reporting by The New York Times 
was partly to blame for the federal government's wrongful prosecution of 
Wen Ho Lee, the scientist at the nuclear lab in Los Alamos, New Mexico, who 
was charged with espionage.

Similarly, right-wing media partnered with Kenneth Starr in his fanatical 
pursuit of Bill Clinton. But the press has also helped expose law 
enforcement's crimes, which have been supported or ignored by politicians 
of both major parties.

Stories about thuggish cops and prosecutors and about ordinary citizens 
spending years in prison for minor drug offenses are hard to resist.

These days, the press seems to be paying particular attention to the 
trashing of defendants' rights by officials who are paid to protect them.

"Suspects' False Confessions Ignite Interrogation Debate," a recent Miami 
Herald headline proclaimed in a story about a mentally retarded man 
wrongfully imprisoned for 22 years thanks to a false, coerced confession. 
According to a recent series in The Washington Post, police in Prince 
George's County, Maryland, routinely coerce confessions--interrogating 
suspects for days at a time in isolation, terrorizing them, and illegally 
depriving them of counsel and sleep.

Honest, skeptical prosecutors or DNA evidence can free some people who are 
wrongly imprisoned by cops who don't distinguish between innocence and 
guilt in their zeal to clear cases. (The Post examined four instances in 
which people forced to confess were exonerated.)

But prosecutors are not always honest or alert, and DNA evidence is not 
always available.

Defendants are sometimes convicted on the basis of highly questionable 
confessions. And often, in the absence of videotaping, challenges to the 
legality of an interrogation and the truth of a confession involve the 
conflicting testimony of defendants and police.

Guess who judges generally believe.

Die-hard defenders of the bureaucracy assert that a few bad cops don't 
indict an entire system.

As defense attorneys will attest, however, the abusive tactics used in 
Prince George's County and the targeting of people whose guilt is not 
supported by evidence are not anomalous.

Of course, many law enforcement officials are competent, energetic, and 
honorable; but some are not. After all, virtually no one in the system is 
surprised when police officers perjure themselves on the witness stand. 
(There's even a name for police perjury: "testilying.")

These injustices are compounded by the inadequate representation of poor 
people who are prosecuted for serious crimes.

This past April, a New York Times series chronicled the failings of the 
indigent-defense system in New York City. The Legal Aid Society (my former 
employer), which describes itself as "the nation's oldest and largest 
provider of legal services to the indigent," has been crippled by Mayor 
Rudolph Giuliani's budget cuts. According to the Times, Legal Aid's 
caseloads and resources have been drastically reduced: Its lawyers now 
handle only 50 percent of all felony and misdemeanor cases each year. A few 
small defense organizations take on an additional 18 percent.

The rest of the cases are turned over to private attorneys, who are often 
inexperienced, underpaid, and unsupervised. (When I worked for Legal Aid, 
the court-appointed lawyers were guys in shiny suits.) According to the 
Times, many of these appointed attorneys don't investigate the crimes with 
which their clients are charged, don't visit the scenes, and don't hire 
expert witnesses, psychiatrists, or pathologists. Many don't visit their 
clients in prison or interview them in private.

Some don't know the rules of evidence.

The Times interviewed several important players in New York's justice 
system--including its chief judge and the state's director of criminal 
justice--who confirmed the awful failings of indigent defense.

Readers were presented with stories about people wrongfully imprisoned 
thanks partly to bad lawyering.

Still, some observers were unimpressed. In Slate, Mickey Kaus expressed 
skepticism about the harms caused by bad lawyers--as if he'd ever agree to 
be represented by one. I doubt that many pundits would question the dangers 
posed by untrained physicians who treat gravely ill patients without 
actually examining them; but the average pundit is more likely to identify 
with a sick person than with a suspect in a homicide.

When people start identifying with the victims of law enforcement, they 
stop accepting its systematic abuses.

Laws against medicinal marijuana are vulnerable because their targets 
include respectable citizens.

So if we want to rein in bad cops and bad laws, we might first unleash them 
on the white middle class.

Imagine the political consequences of subjecting affluent whites to the 
same degree of police surveillance and abuse that poor blacks and Latinos 
endure.

The war on drugs is a war on minorities, partly because police pay 
relatively little attention to drug-law violations by whites. Nearly 70 
percent of people in prison are blacks and Latinos, who together constitute 
about 25 percent of the nation's population. Prison conditions would 
improve dramatically if statistics like these were reversed.

We would also witness huge improvements in crime control if police and 
prosecutors were held accountable for misconduct. Criminal justice abuses 
are threats to the public safety as well as to individual rights.

When the innocent are persecuted, the guilty roam free.

Wendy Kaminer
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