Respond to this Article June 2000

Reasonable Doubts

Crime's down but the system's broken: The Monthly's guide to criminal justice reform.

By Stephen Pomper

Crime may be down but the criminal justice system remains something of a mess. If you've ever spent time on a jury, if you've worked in a criminal court, or if you caught even 10 minutes of the O.J. trial on TV, you've seen some of the problems. The system has an Alice-in-Wonderland quality: The guilty are over-protected, the innocent are under-served, and much of the time the public interest simply fails to enter the picture. Jurors spend days in court dozing through endless delays and witnesses who dare come forward find their lives imperiled. When all is said and done, too many violent and dangerous felons wind up with Get-Out-of-Jail-Free cards and too many non-violent and just-plain-innocent people wind up doing time.

How do we make it better? Read on for the Monthly's guide to criminal justice reform.

Get the Truth Out

Courts are supposed to be finders of fact. Yet there's an awful lot about the criminal justice system that keeps them from ever getting to those facts. Some of the obstacles are straight-forwardly bad laws. Others are more a question of resources and oversight. We could help our courts get past some of these obstacles and here's how:

1. End "Two Wrongs Make a Right" Criminal Procedure: The judicial system labors under rules crafted by the Warren Court, which protect defendants even if it's at the expense of the truth. In a 1997 law review article, University of Minnesota law professor Michael Stokes Paulsen casts this as the "Dirty Harry" problem. In the movie of the same name, Detective Harry Callaghan gets increasingly violent as he goes after a serial murderer named "Scorpio." He busts into his place without a warrant, nabs the murder rifle, and savages Scorpio until he spits out the location of a kidnap/rape/murder victim. But here's the kicker: Although Scorpio is a monster, and Harry does some monstrous things, neither of them is actually punished. Scorpio goes free because all the evidence against him is tainted by Harry's antics, and Harry slides by because cops get away with stuff.

Decades later, this lose-lose approach is still at the heart of criminal procedure. To be sure, the failing has noble origins. Back in the Civil Rights era, the Supreme Court, concerned about segregationist states deploying policemen to harass and imprison minorities, developed a set of constitutional principles that stopped them from doing that: Ill-gotten evidence was treated like fruit from a poisoned tree and had to be discarded. If the police ransacked your car without a warrant, the resulting evidence could not be produced at trial.

But the days of officially-sponsored police racism are over. And while there's still racism and police abuse on a different scale, it's hard to see why they are best dealt with by excluding otherwise helpful evidence. It's one thing to say that forced confessions should not be considered: That protects innocent people who might be beaten into confessing crimes they did not commit. But what kind of protection does an innocent person get from an "exclusionary rule" that prevents a court from considering ill-gotten evidence? If Harry busts into an innocent person's apartment and doesn't find anything to seize, then there won't be any evidence for a court to exclude, and there won't be any negative consequence for the police. Not that exclusion is such a negative consequence anyway: when police are evaluated in cities like New York, the emphasis is on the number of arrests to their credit---not convictions. If Scorpio goes free because Harry trashes his place, Harry still may be eligible for a promotion.

Part of the problem with the exclusionary rule is that it assumes that the Bill of Rights is focused on protecting the guilty rather than the innocent. But some leading constitutional scholars have begun to suggest that this assumption is backwards---protecting the innocent is in fact the top priority. The correct way to control police abuse is not by tossing potentially useful evidence onto the compost pile. It is by punishing the policeman or the police department through a lawsuit or through criminal charges. But the court should, by all means, be allowed to consider Scorpio's rifle and any other relevant evidence that Harry has managed to dig up.

In 1995 Congress considered a bill that would have gone in this direction---by getting rid of the exclusionary rule and making it easier to sue delinquent cops---but it fizzled. Supporters of the status quo argue that it doesn't really matter: There are so many exceptions to the exclusionary rule that only a small percentage of arrests are lost as a result. They also argue that the rule is useful because it provides at least some check on police abuse---and that creating an alternate system of checks would be a real challenge. This, however, ignores the problems in the current system. Read the recent coverage about the Los Angeles and New York police departments and you will see that the exclusionary rule is not an especially effective mechanism for controlling police brutality. Meanwhile, courts and lawyers waste their time on motions to suppress evidence that can only undermine the truth-seeking process.

Getting to the truth should be the court's foremost objective. And this principle doesn't apply just to the exclusionary rule. For example, a majority of states have deadlines after which a convict cannot introduce new evidence to prove his innocence. In Virginia, the deadline is a scant 21 days after trial. The idea is to keep appeals from dragging out endlessly, but that's not a good rationale for keeping innocent people in jail. If a convict can present credible new evidence, then a court should review it. But if a case reopens for this reason and the state has come up with new evidence of guilt, the court should look at that too.

It's time to end the lose-lose cycle that we create by excluding evidence. A court must get the information it needs to send Scorpio to Alcatraz. If he can prove his innocence later, it must hear the evidence it needs to spring him. And the Harrys of this world must pay for their brutality through some mechanism that punishes them directly---rather than one that punishes the community by putting guilty people back on the street.

2. Create a Universal DNA Database. This is an idea that Rudy Giuliani has endorsed and the ACLU has said could usher in a "brave new world" of genetic discrimination---but looking past the rhetoric, it's a winner.

The idea is to take full advantage of the enormous power of DNA evidence. Because it's so much more reliable at identifying people than eyewitnessing, DNA evidence can keep innocent people from going to death row and guilty people from going free. And because it is such powerful proof, it can help shorten trials, relieve problems with witness intimidation, and generally lend itself to a more efficient and reliable criminal justice system. But in order to maximize its usefulness, you need to be able to check crime scene DNA samples against the biggest possible database. The government is already coordinating a database that will include mostly convicted felons' DNA samples. That's a decent start: Convicted felons have a high probability of returning to their old ways when released from prison. Still, plenty of crime is committed by people who have never spent time behind bars. So why not do it right and create a database that includes everybody?

The idea is simple and non-discriminatory. Upon the birth of any child, a hospital would take a DNA sample using a simple procedure that involves swabbing cells off the inside of a cheek with a bit of cotton and then analyzing their genetic material for patterns at 13 separate points, called loci. The information recorded at these loci is referred to as "junk" by geneticists because it doesn't say anything interesting about whether a person is likely to be an insurance risk, is likely to win a Nobel Prize, is a cat or a dog person, or anything of the sort. Like a fingerprint, it would simply identify who a person is. This information would be sent to a federal database where it could be used only by law enforcement authorities when trying to establish the identity of a criminal.

Civil libertarians get hysterical over the privacy issues, but where's the beef? Given the restricted information that we're talking about, and the limited access that would be afforded, the main privacy right at stake is the right to commit crimes anonymously. It's also worth noting that millions of hospital patients leave blood and tissue samples when they come for treatment. Some hospitals keep these on file. So if your local homicide chief decides that he wants to get a DNA profile on you, he may very well be able to go down to City General, retrieve some old cells of yours, and do his own genetic analysis. This analysis could wind up furnishing information that is much more sensitive than the information that would be recorded in the national database. Wouldn't it be preferable to require the police to limit their DNA sleuthing to one tightly controlled source?

One more point on DNA evidence: It can help us correct past mistakes, and we should use it to do so. States should be required to take DNA samples from all convicts in all cases where it could prove their innocence and the prisoner wants it. Given that no fewer than 67 prisoners have already been found innocent using DNA testing, states should be working overtime to find other innocents who have been wrongly imprisoned. The flip side of this position is that states and courts should do whatever it takes to make certain that statutes of limitations don't stop victims and prosecutors from going after violent offenders where DNA technology for the first time allows guilt to be established.

3. Save the Witnesses. If you watch too many movies of the week, you can get a highly distorted view of what this country does to protect its witnesses. There is a romantic idea that once you agree to testify in a dangerous case, the FBI rushes in with a team of plastic surgeons, draws up new papers, and moves you to the furthest corner of the furthest possible state---where it continues to keep a watchful eye on you for the rest of your natural born days. But there's a problem: The FBI program is for federal witnesses---it was designed to help U.S. attorneys bust up organized crime. It doesn't do a thing to help out at the state and local levels where most crime, and most witness intimidation, occurs.

And a shocking amount of witness intimidation does occur at those levels. According to a 1995 report published by the National Institute of Justice (their latest on this subject), some prosecutors were able to identify gang-dominated neighborhoods where between 75 and 100 percent of violent crimes involved intimidation---from knee capping potential witnesses to staring them down in court to actually rubbing them out. That's an unsettling figure when you consider that a court's fact-finding machinery can grind to a halt without witnesses.

Consider the following example: A Baltimore jury recently acquitted three men who had been accused of shooting one Shawn L. Suggs in a street fight that spilled out into rush hour traffic. At first, the prosecution seemed to have a good case---but then the key witnesses started dropping out of the picture: The first was killed in his home. Another disappeared without a trace. And the third (Suggs' former girlfriend) claimed at the last moment to have lost her memory to heroin addiction. "I think she is afraid to tell the truth," Suggs' mother told the Baltimore Sun. "I think I would be afraid too."

How do you fight that kind of fear? Many states and communities have created their own witness protection programs that try to offer some measure of security---from posting police cars outside witnesses' homes to moving witnesses out of their old neighborhood until the trial is over. But the programs often lack adequate funding. And on top of that, it can be a lot tougher to protect state and local witnesses than it is to deal with mob rats. Street and gang crime witnesses are frequently reluctant to abandon their homes and neighborhoods. They get bored, lonely, and afraid when they're pulled away from their families. And even if they can be persuaded to move a short distance---say a few towns away---the temptation to look in on friends and relatives back in the old neighborhood can be both irresistible and dangerous.

More could be done. Improving funding and stiffening penalties would be a good start. When prosecutors can persuade a witness to cooperate, they should have the money they need to pay for motel bills, replace locks on doors, and pick up the tab for gas and groceries. Because it can be tough to come up with the scratch to do this on short notice, some states, like California, have set aside funds that communities can use to foot the bill. Other states should follow their lead, and the federal government should set up an emergency fund to help communities pick up the slack when there's a shortfall. And with regard to penalties, states should rank intimidation right up there with the gravest non-capital offenses. Under Washington, D.C. law, intimidators can get up to life imprisonment. That sounds about right.

4. Police the Prosecutors---As Well As the Police. Police and prosecutors are the gatekeepers of the criminal justice system. But although police brutality gets a lot of attention---as it has recently in New York and Los Angeles---prosecutors tend to escape scrutiny.

We should pay closer attention to the prosecutors. They, after all, are the ones who decide which cases go to trial and how they're presented. If they misrepresent the facts, they can wind up sending innocents to jail. And that's a problem for two reasons. First, there are a lot of powerful incentives that make prosecutors want to win---sometimes even at the expense of the truth. ("Winning has become more important than doing justice," complained Harvard Law School professor Alan Dershowitz in a 1999 Chicago Tribune interview. "Nobody runs for Senate saying îI did justice.'") Second, when a prosecutor does step over the line, he rarely faces serious punishment.

How do we know? In 1999, The Chicago Tribune published a nationwide survey. They looked at all the murder cases in the past 40 years that had to be retried because a prosecutor hid evidence or permitted a witness lie. They found 381 in all. What happened to the prosecutors in those cases? Almost nothing. About a dozen were investigated by state agencies, but only one was actually fired---and he was eventually reinstated. And not a single one of the offending prosecutors was ever convicted of either hiding or presenting false evidence. Indeed, not a single prosecutor in the history of the Republic has ever been convicted on those grounds---even though they're both felony offenses. As Pace University law professor Bennett Gershman told the Tribune: "There is no check on prosecutorial misconduct except for the prosecutor's own attitudes and beliefs and inner morality."

But isn't the defense bar a check on prosecutorial misconduct? Don't count on it. In December 1999, The New York Times noted that the number of legal aid lawyers in New York City's Criminal Court had dropped from 1,000 a decade ago to 500 today. And it quoted Manhattan defense attorney Ronald Kuby as saying that "No competent criminal defense lawyer zealously representing his clients can make a living on [legal aid rates]." This problem is obviously not limited to New York.

All this suggests that if we want to make certain prosecutors are doing the right thing, we have to police them more aggressively. That means creating well-muscled independent agencies that have strong incentives to find out when prosecutors misbehave---and to fine, press charges, and/or fire them when they do. Judges should help them out by publishing the names of prosecutors who commit misconduct in their orders and opinions (not a common practice)---and circulating them to the independent watchdogs. And while we're on the subject, states should also set up similar watchdogs to police the police---both for abuse and sheer incompetence. There should be independent civilian commissions that not only have responsibility for overseeing police departments, but that also have the power to impose discipline on the departments when they stray.

5. Abolish the Insanity Defense. It is true that you have to be a bit crazy to shoot the President like John Hinckley, or to cut off your husband's penis like Lorena Bobbit---but should that affect the state's ability to keep you separated from the rest of society, where you might do further harm? If you are rich or high profile or just plain lucky enough to find a defense lawyer who can successfully argue the insanity defense on your behalf, it can.

Consider the case of Tomar Cooper Locker, who opened fire on a crowded D.C. hospital ward---killing a boxer named Ruben Bell and wounding five bystanders. The apparent motive for the shooting was that Locker had a vendetta against Bell, whom he thought had killed his girlfriend. But Locker pled insanity based on the claim that he was suffering from a momentary attack of post-traumatic stress disorder---a claim endorsed by the same psychiatrist who testified in the Lorena Bobbit incident. The jury bought it. Locker was then committed to St. Elizabeth's hospital, where he was treated for two whole months until, earlier this spring, doctors declared him fit to reenter society.

Michael Lazas is another example of someone who slipped through the system as a result of the insanity defense. In 1993, Lazas was found not guilty by reason of insanity for strangling his infant son and sent to Maryland's Perkins Hospital Center. It was his second violent assault; two years earlier he had stabbed a picnic companion in the throat. In 1998, Perkins officials thought Lazas was ready for a group home, so they moved him to an essentially zero-security facility in Burtonsville, Maryland. In February of this year, Lazas simply walked away from the Burtonsville facility. He was reportedly gone for four days before anyone notified the authorities he was missing.

In both cases, the public would have been better served if there were no insanity defense. There is no dispute that Locker and Lazas did what they were accused of doing. As a society, we've made a judgment that people who do these things need to be separated from the rest of us for a certain amount of time. Locker and Lazas should each have been found guilty and served the requisite time for his offenses---in an appropriate treatment facility to the extent necessary. The law should not force chronic schizophrenics to do hard time in maximum-security prisons. But it should be adamant about finding ways to keep those who commit violent crimes at a safe distance from the rest of society.

Lock up the right people

Politicians who vote for mandatory minimum sentences stake a claim to being tough on crime. Politicians who vote against them run the risk of appearing weak. Of course in a perfect world, "toughness" would be assessed by whether you put the right (i.e., most dangerous) people in jail---rather than how many people you put in jail. But the world of sentencing statutes is far from perfect.

The political blindness that surrounds these laws can be partly traced to the death of Len Bias---a Maryland basketball star who had been the Celtics' first pick in the NBA draft. When Bias overdosed on cocaine in his college dorm room in 1986, he become an overnight poster child for the war on drugs. It was an election year and Beltway legislators, who were close enough to Maryland to be caught up in the public horror at Bias' death, wanted to make a statement. So they replaced a set of temporary federal sentencing guidelines that had been in place with permanent "mandatory minimum" sentencing requirements. States followed suit with their own iterations of these requirements. And in 1994, California and Washington added a new wrinkle when they passed so-called "three strikes laws" that require courts to give 25 year minimum sentences to any two-time felony offender who steps out of line a third time---even if to commit a misdemeanor offense.

These laws have generated some spectacularly unfair results. For example, a California court recently sentenced Michael Wayne Riggs, a homeless man, to 25 years in jail for stealing a bottle of vitamins. His most serious prior offense was snatching a purse.

But if Riggs' story is maddening at the individual level, the major concern at the policy level is what all this chest-thumping legislation is doing to our nation's prison system. There are roughly 2 million Americans behind bars, of whom more than half are there for non-violent (in most cases drug-related) crimes. The country spends $31 billion per year on corrections---twice what it spent 10 years ago. There is still not enough room in America's prisons.

Even looking past the overcrowding issues,however, sentencing laws have proven to be losers. Sending minor drug offenders to jail exposes them to hardened criminals and increases the risk of them committing more serious felonies when they get out. The Rand Corporation has found that mandatory minimums are the least cost-effective way to reduce drug use and crime---as compared to treatment programs and discretionary sentencing. Even White House Drug Czar Barry McCaffery has acknowledged that "we can't incarcerate our way out of the drug problem." It is therefore unsurprising that a dozen or so states have formed commissions to reconsider their rigid sentencing policies and several, like Michigan, have begun to repeal them. And on the progressive front, Arizona recently became the first state to offer the option of drug treatment, rather than prison to its non-violent offenders convicted on drug charges.

Arizona's program is both cost efficient and makes sense. A California study found that one dollar spent on drug treatment saves seven dollars in reduced hospital admissions and law enforcement costs. These savings can be put to better use elsewhere in the criminal justice system. For example, they can be used to help communities develop facilities to siphon off non-violent offenders from the heart of the system. Roughly two percent of the nation's drug offender traffic is processed in special "drug courts," which dole out a combination of light sentencing---such as short jail terms, community service, and probation---plus mandatory drug treatment. More drug courts would almost certainly be a good thing.

Communities also do themselves a service when they set up tough probation programs that actually help minor offenders steer away from trouble. Orange County, California has had substantial success with a program that involves 6 a.m. inspection visits to all participants from program officers, surprise drug testing, counseling, and monthly evaluations by the supervising judge. Anecdotal evidence suggests that in order to work these programs have to be ready to dish out real discipline to participants who fail to live up to their end of the bargain. Orange County participant Dale Wilson, who had been addicted to cocaine for three decades before joining the program, told the Los Angeles Times that he was sent to jail for nine days when he had a relapse. "It's a strict program," he said. "But I never would've gotten to the point to keep me sober if I hadn't been faced with these punishments."

Put More Order in the Courts

Finally, we shouldn't forget that the best laws and policies in the world aren't going to do a whole lot of good unless we have reliable, industrious, and smoothly administered courts. And while there are lots of hard-working judges with the same objective, there are also plenty of clunkers.

In a 1996 San Francisco case, for example, two municipal court judges batted a domestic violence case back and forth on an October Friday. According to The Recorder, a legal newspaper, Judge Wallace Douglass was supposed to hear the case---but he double-booked another trial for the same day. So he sent it across the hall to Judge Ellen Chaitin, who held a mid-day conference---and then sent it back to Douglass when it failed to settle by the early afternoon. Douglass then said that he couldn't find a jury to hear the case (it was Friday afternoon, after all) and, because a delay would have violated the defendant's speedy trial rights, he dismissed it. This calls to mind the story of the Manhattan judge who in 1971 adjourned a robbery trial to catch a flight to Europe. Another trial would have violated the defendant's constitutional rights, so he walked away scot-free.

The problem is two-fold. One is that judges don't always push themselves that hard. In 1989, Manhattan Lawyer correspondents observed that, on average, the judges in Manhattan's criminal court were in session about four and a half hours a day. Sixty-two percent spent less than five hours in session, and 42 percent started after 10 a.m. In Baltimore, which has more than 300 homicides per year, you can sometimes walk through a criminal courthouse around 3:30 or 4:00 p.m. and find courtrooms that have adjourned for the day.

But the additional problem is that judges are too often inclined to schedule things first for their own convenience, second for the convenience of lawyers, and last of all for the convenience of the people the system should be bending over to accommodate---jurors and witnesses. One prosecutor said that there are days in D.C. Superior Court that unfold as follows: The jury is instructed to arrive at 10 a.m. and sits for hours while the judge kibbitzes with the lawyers over technical legal issues. Sometimes the kibbitzing runs right into lunch. Then everybody trundles off for a two hour break. The trial starts in earnest at 3 p.m. And court adjourns between 4:30 and 5 p.m.---sometimes earlier.

Lack of organization is another problem. Washington D.C.'s Superior Court has no central scheduling mechanism. Judges control their own dockets and are allowed to book two or three trials for the same day, anticipating that there will be pleas and continuances. Policemen who are supposed to testify wind up milling around the courthouse for days on end, waiting for their trials to be called, and---if they otherwise happen to be off-duty---collecting overtime.

It has to be possible to run a tighter ship because some judges already do. As noted in last month's "Tilting at Windmills," for example, a Tennessee judge named Duane Slone has adopted a policy that he won't hear plea bargains on the day a trial is scheduled to begin. This saves the jury from having to sit and wait while lawyers haggle over a plea and allows trials to start promptly at 9 a.m. Common sense courtesies like this could kill a lot of the inefficiencies that you see in courtrooms today. But more importantly, disciplinary panels need to keep better tabs on the courts and punish (by fines or demotions if necessary) those judges who fail to show up on time, stay all day, and run an orderly docket.

What Next?

Wholesale reform of the criminal justice system obviously isn't going to happen overnight. Some reforms can only be made by Supreme Court decision. Others will have to be effected through new laws and practices at the federal, state, and local levels. Still, it's a set of tasks well worth facing. It's great that crime is down but if we it to stay there, and if we want to make sure that we're sending the right people to jail, then we need a system that we can really trust beyond a reasonable doubt.

Research assistance provided by Elisabeth Frater and Patrick Esposito

Stephen Pomperis a former editor of The Washington Monthly. You can email him byclicking hereor read his other articles byclicking here

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