This is mostly to introduce the cast of characters involved in the ruination of the American justice system, mostly the criminal justice system. That system has worked more or less well since its founding not so very long ago. It has been working less and less well for some time now, and stands before us as a shadow of its former self.
CNN commentator Mark Griegos, described by CNN as a criminal defense attorney, spoke recently on that channel about probable cause:
“Probable cause hardly exists anymore. Probable cause these days means whatever police and prosecutors want it to mean.”
For reference, here is the definition of probable cause that I learned in law school only twenty five years ago:
“Probable cause is facts and circumstances, which, in themselves, would lead a reasonable person to believe 1) that a crime had been committed; and 2) that this certain person had committed the crime.”
It sounds quaint now, doesn’t it? Yes, things have gone wrong, but who’s responsible? Here are some of them:
From the Latin, “legis,” meaning the law. Legislators write the law; they make up our legislatures. We are blessed in America with two levels of legislators, federal and state. We have a system of federal laws, and every state has its own legal system. They’re all different, too, but there’s one thing that they have in common these days. They’re all “tough on crime.”
All of this started with that good old President Nixon, “Tricky Dick.” President Dick got the idea to use fearmongering about crime to scare up the vote. The pitch was: “those ungrateful blacks and those miserable hippies are ruining our peace and quiet with their demonstrations, their drugs and their riots, and we’re going to put a stop to it.” Legislators jumped on the theme and started to turn out laws that criminalized more and more behavior and increased the penalties for many crimes exponentially. In New York, new “Rockefeller Drug Laws” were enacted in the early 1970s, and all of a sudden that joint that would have gotten you one year in 1970 would now get you seven years. Soon, legislatures all over America were falling all over themselves in an attempt to out-do one another.
By now, almost everything has been criminalized, everyone is under suspicion all the time, and America has the highest rate of incarceration in the known world.
Has there been any up-tick in the safety of Americans, or down-tick in the crime rates, as a result of this orgy of violence against the citizenry? Why no, there has not. But the process continues.
Here are some of the bright ideas the legislators have passed as laws:
Sentencing Guidelines: one of the hallmarks of our Common Law tradition is giving judges a lot of discretion in their own courtrooms. After all, the theory goes, the judge is sitting right there, he sees everybody and everything. The judge is in the best position to figure out who is a good guy and who is a bad guy, and also the one most likely to really understand what happened. Let’s just give this guy probation, because it’s better all around. Let’s suspend this sentence, because it was probably a one-time thing and this guy had no priors. Sentencing guidelines do away with all that. Guilty means what the legislators say it means, in numbers of years that are cut in stone.
And of course the numbers are high for those years, because those legislators want the voters to think that they are “tough on crime.”
Mandatory Minimums: ditto.
Strict Liability: this aspect of law has been part of tort law for millennia. If you own a wild animal, and it hurts somebody, the injured plaintiff does not have to prove that you were negligent, that you did something wrong, or stupid. No, all he has to prove is that the animal is your property. You are strictly liable. This is a considerable mischief in criminal law.
An example, if I may. In the 1990s I had a good friend who had been a criminal defense attorney in Los Angeles for about thirty years. He represented a fellow in a case that he found most upsetting. The guy was Hispanic, about fifty years old, and he had a job in the sheriff’s department. Not a cop, just an office job. One day his son left the house with a gun to go accomplish some gang business. The dad followed him out of the house and actually talked him out of it, talked him into handing the gun over and giving up the idea. While all of this was happening, somebody saw two Hispanic “males” handling a pistol in public, and they called the police. When the police announced their presence, the dad was holding the gun by the barrel and heading back towards his house. When the police told him to freeze, he turned to explain the situation. Reasonable?
He was arrested and charged with threatening police officers with a gun. The district attorney ran with it. It is now a “strict liability” crime, the circumstances have nothing to do with it. If the DA can prove that a) the defendant had a weapon in his hand; and b) he was facing the police in question, boom, guilty.
The guy admitted that much, because it was true and he was an honest man.
The rest of the story was never shared with the jury. That was good for seven years, with the judge having no discretion to mitigate the punishment.
These are the people who inhabit our prisons. That guy lost his job, and by the time he gets out he’ll be almost sixty years old and he’ll have a felony prison record. I’m sure that he lost his house, too, and probably his wife as well. That’s justice in a pig’s eye right there.
Anti-Recidivist Laws: these are the famous “Three Strikes” laws that became popular some time ago. We need to be tough on crime! We need to get these repeat offenders off the streets! Here’s how it works.
If a person has two qualifying prior felony convictions, and that person is convicted of a violent crime, the penalty is life in prison. Just saying it out loud like that gives me chills. The results are often horribly unfair, and, I believe, unconstitutional.
The famous case in my memory was a fellow with two strikes who was arrested after he seized a half-eaten piece of pizza from a teenager on the Venice Beach boardwalk. I forget how he got the strikes, but I don’t think that he had ever hurt anybody in either of them. He didn’t hit the kid to get the pizza. The guy was homeless, and hungry. He was convicted of aggravated assault, and he got the life sentence.
I came to the law late in life so I retain some naiveté about the fine points of the law, but my understanding of Double Jeopardy is that a person cannot be tried twice for the same crime on the same facts. Isn't there a law or a principle about punishing them twice? That defendant had already been sentenced for those priors and he had served his time and been released. So how is it fair to base a life sentence on those resolved prior crimes?
Legislators love these laws, because it makes them look very, very tough on crime.
Racial Overtones: of course there are racial aspects to these things. Take the sentencing guidelines for powder cocaine vs. the ones for crack cocaine. The powder users get off much lighter on the time side; the crack defendants go to prison for much longer. It’s not entirely a black/white divide, but there are many more whites on the powder side and many more blacks on the crack side. It’s a question of marketing as much as a question of preference. People buy what’s available. For tough on crime, one must often read, “tough on those blacks.”
This is turning into a book, so I’ll break it up into a couple of parts.