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Mythologies of Criminal Justice

PALLADIUMS AND CITADELS

THERE HAPPENS, UPON OCCASION, a judicial utterance so arresting as to require study and contemplation for what it tells us of the world in which judges dwell.²⁵ One such utterance is Justice Black’s summing up for the majority in Illinois v. Allen,²⁶ holding that a trial judge confronted with an obstreperous defendant might hold the man in contempt, bind and gag him, or exclude him from his trial. Such a holding is necessary, the justice said, to show that “our courts, palladiums of liberty as they are, cannot be treated disrespectfully,” and so that they will “remain … citadels of justice.”

As I wonder how Justice Black could have penned that paean with a straight face, I am reminded of my first appearance in the New York criminal courts at 100 Centre Street in Manhattan. In a desperate attempt to preserve the image of justice, someone had put a big plastic bag over the American flag on the judge’s dais. The bag was yellowed and grimy. Behind the judge, an incomplete set of tarnished metal letters proclaimed: IN GOD WE RUST.

I went back to 100 Centre Street in 2018. The walls have been painted and missing aluminum letters restored. The rest of it is pretty much the same.

“In the halls of justice,” Lenny Bruce used to say, “the only justice is in the halls.” Maybe not in the halls, either, for that is where the plea bargains and lawyer-client conversations take place.

Learned Hand served as a federal judge in New York for more than forty years. His view of palladium and citadel was not so sanguine: “I must say that, as a litigant, I should dread a lawsuit beyond almost anything short of sickness and death.”

No, for the men and women caught up in them, the criminal courts are neither palladiums of liberty nor citadels of justice. Citadels, perhaps, in the sense used by an English author in 1598: “a citadell, castell, or spacious fort built not onely to defend the citie, but also to keepe the same in awe and subiection.” Unfortunately, the constitutional revolution in criminal procedure has amounted to little more than an ornament, or golden cupola, built upon the roof of a structure found rotting and infested, assuring the gentlefolk who only pass by without entering that all is well inside.

MASS INCARCERATION AND SOCIAL CONTROL

Assume that Canada and the Western European countries have about the right number of people in jail. Assume that the social problem of crime in those countries is not terribly different from that in the United States. Understand that the United States incarceration rate is five to seven times that of those other countries. If these assumptions, and this understanding, are even nearly valid, 80 percent of the people in American jails should not be there. This is mass incarceration.

The heavy toll of jailed people reflects the extent to which the criminal process is used as a mechanism of social control, directed mainly at the poor and at people of color. Thirteen percent of the U.S. population is African-American; 64 percent of those incarcerated are African-American. Sixteen percent of the population is Hispanic; Hispanics are 19 percent of the incarcerated. Until the Supreme Court began to address the issue in 2012, the United States had more than 2,500 people serving life without parole for offenses committed before they were eighteen. That was global first place; Israel came in second, with seven. This is not to mention that the United States remains one of the few countries of the world that still has the death penalty.²⁷

These figures portray what I term the substantive aspect of the issue, which could also be called over-criminalization. Minor social deviance makes you subject to criminal punishment, and for prison terms that are far longer than those imposed in other countries.

Perhaps more significantly, police and prosecutorial discretion is exercised in racially discriminatory ways. A study that became the basis for a Supreme Court case, McCleskey v. Kemp,²⁸ found that prosecutors were 4.3 times more likely to seek the death penalty when a black person was accused of killing a white person than when a white person was accused of killing a black person. The Supreme Court’s decision refusing to take the study into account in assessing the constitutionality of the death penalty has been condemned as one of the worst in U.S. history. Professor Anthony Amsterdam called the case “the Dred Scott decision of our time.”²⁹

How could such a system persist without being attacked and torn down as an obvious instrument of racism and repression? The proceduralist would tell us that these figures are not reason for alarm, for every person faced with incarceration has a mythic array of due process rights. I sat at dinner with a Supreme Court Justice, who explained to me that the Constitution was drafted by people who had read Isaac Newton, and who devised a mechanism of checks and balances, like clockwork. The Framers, he said, were concerned with the mechanism of government. This view is, to be sure, partial: the Framers had been revolutionaries, battlers for a certain social vision, threatened with jail or execution themselves. They were also white males who owned property, and many if not most of them counted human beings among their property. The clockwork idea is, however, powerful, for it reveals something of current Supreme Court attitudes toward the criminal process that puts all these people behind bars.

Clockwork is a powerful image because a clock is quintessentially “form.” The substance is what time it is. If there is only one clock, and it is kept by a small group of the powerful, then the time is whatever they say it is. The clock, and even the rather arbitrary decision to divide its units into 60, 60 and 12 or 24, is itself a convention established by somebody or other.

The system of mass incarceration is shielded from just criticism by two mythologies: the mythology of fair trial and the mythology of free plea bargain.

THE MYTHOLOGY OF FAIR TRIAL

Legal counsel is at the center of the formalistic bargains that dominate the criminal process.³⁰ The Constitution is explicit: “No person shall be held to answer except,” “the accused shall enjoy,” and similar phrases introduce enumerated rights of a person charged with or suspected of a crime. Among these rights is “assistance of counsel.” We must therefore define the multiple bargains by which this promise of counsel is fulfilled.

The first such bargain is the one spelled out in the Bill of Rights. Like all the other enumerated rights, the Constitution is a promise by an ostensibly neutral state, as a condition of the overall deal struck by “We the People” who established the government to begin with. This newly formed union of states, dominated by owners of property including slaves, guarantees certain rights, the scope of which it will interpret. Whether this bargain means anything depends, here as in all its other aspects, on who is wielding the levers of state power.

A Columbia Law School study found fundamental legal error in two-thirds of the capital cases tried in the United States since 1978. Most of those errors involved police officials hiding exculpatory evidence, prosecutors and police denying the accused basic rights in the criminal justice system, and judges who overlooked those errors. Many of these judges, particularly in the “Death Belt” states of the American South, are elected in campaigns designed to fire up the vengeful spirit of the majority community. Capital cases are not unique in being corrupted by error; it is only that they have been studied most closely.

This brings us to the lawyers. Regardless of how biased the judge, how inhumane the criminal law, and how corrupt and malign the police and prosecutors, the accused is supposed to have a champion, a lawyer. The National Law Journal did a study of appointed counsel in capital cases in 1990. Given what is at stake, one would expect that only the most qualified lawyers would be found adequate to the task. By now, almost everyone has read the anecdotal evidence that this is not so. The classic story of the Texas-appointed lawyer who slept during his client’s capital murder trial has made the rounds. The trial and penalty phase lasted just thirteen hours, and the lawyer did not even make objection when the prosecutor said the jurors should sentence the defendant to death because he is gay.³¹

The National Law Journal found that:

• the trial lawyers who represented death row inmates in the six states were disbarred, suspended, or otherwise disciplined at a rate three to forty-six times the discipline rates for lawyers in those states.

• there were wholly unrealistic statutory fee limits on defense representation.

• there were nonexistent standards for appointment of counsel.

• capital trials were completed in one to two days, in contrast to two-week or two-month long trials in some states where indigent defense systems were operating.

In short, the right to effective counsel is ignored in the cases where the stakes are highest and error rates demonstrably high.³² The idea that a capital case can be well tried in one or two days is laughable. In the Oklahoma City bombing trial of Terry Nichols, jury selection alone took five weeks in order to get a panel that was willing to swear it could overcome the media barrage. The trial itself took nearly three months. The defense called more than a hundred witnesses. The jury acquitted Nichols of murder, finding him guilty of lesser charges, and voted not to impose a death penalty.

In non-capital cases, the counsel situation is every bit as bleak. In April 2001 the New York Times published the results of its investigation into the New York City–appointed counsel system. It found that appointed counsel are paid at rates that actively discourage them from spending enough time on cases. The only way to make the appointed practice pay is by taking on hundreds of cases per year and spending as little time as possible on each one. The Times “poster lawyer” was one Sean Sullivan. He handled 1,600 cases per year and earned more than $125,000 in 2000 for his efforts. The “representation” he provides was worse than minimal. He did not confer with clients, did not return client phone calls, did not prepare needed legal motions, and contented himself with working out quick plea bargains on an assembly-line basis.

More recent data appears in a New York Times article about the excessive caseloads in the Missouri public defender system.³³ A defender assigned to a felony prosecution has only nine hours to work on the case, compared with the forty-seven hours that the study finds is necessary to do an adequate job. Many juveniles are sent off to incarceration with no lawyer at all.³⁴

A 2010 study of cases in which the defendant was exonerated after being convicted and being sent to prison found that defense counsel was constitutionally ineffective in 21 percent of the cases. Deficiencies in performance ranged from failure to seek available exculpatory evidence to being drunk at trial, to sleeping through the trial.³⁵

The case of Texas v. Cobb³⁶ illustrates the Supreme Court’s attitude toward the role of counsel. The Court held 5 to 4 that when an indigent has counsel appointed to represent him for one crime, that representation bargain does not extend to other related offenses. Therefore the state can treat the accused as being without counsel for any offense beyond that with which he is formally charged. Suppose, for example, that an indigent is found with an unlicensed weapon, and arrested on that charge. Counsel is appointed, and the accused is held in jail. The police suspect that this defendant might have committed another crime, such as using the weapon in a robbery. Even though the accused has counsel, and even though the lawyer has told the police that counsel should be present during questioning, and even though the police have agreed to that condition, the Supreme Court’s decision means that the accused may be questioned without counsel being present. The Court’s reasoning is that the contract of representation, as defined by and in the interest of the state, does not extend to protecting the accused’s liberty generally, but rather only to defending the specific charge.

In sharp contrast, a defendant with means to hire a private attorney will benefit from a true bargain, and not a fake one grudgingly given by the state. That defendant’s lawyer will be considered by the rules of legal ethics to be counsel for all related matters.