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 wronglyconvicted that has aroused concern about criminal justice. The bias andbloodthirst in law enforcement have simply become unseemly. During the pastseveral years, racial profiling became impossible to ignore; even conservativeslike Vice President Dick Cheney and Senator Joseph Lieberman belatedly condemnedit. The awful misdeeds and mistakes of FBI agents--from the attacks at RubyRidge, Idaho, and Waco, Texas, to the framing of Bostonian Joseph Salvati, whospent 30 years in prison for someone else's crime--made the nation's premier lawenforcement agency look like public enemy number one. Confronted with the sheermeanness of their government--its continued imprisonment of nonviolent drugoffenders, a gratuitously cruel campaign against the medical use of marijuana,and the expansion of the drug war to public schools, where students are treatedlike suspects and randomly tested for drugs--people are apt to rediscovertraditional American values, like fairness and respect for individuals.
On occasion, the press has collaborated with the law enforcement systemin trampling people's rights: Irresponsible reporting by The New YorkTimes 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 MiamiHerald 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 alwaysavailable. Defendants are sometimes convicted on the basis of highly questionableconfessions. And often, in the absence of videotaping, challenges to the legalityof an interrogation and the truth of a confession involve the conflictingtestimony of defendants and police. Guess who judges generally believe.
Die-hard defenders of the bureaucracy assert that a few bad cops don't indictan entire system. As defense attorneys will attest, however, the abusive tacticsused in Prince George's County and the targeting of people whose guilt is notsupported by evidence are not anomalous. Of course, many law enforcementofficialsare competent, energetic, and honorable; but some are not. After all, virtuallyno one in the system is surprised when police officers perjure themselves on thewitness stand. (There's even a name for police perjury: "testilying.")
These injustices are compounded by the inadequate representation of poorpeople who are prosecuted for serious crimes. This past April, a New YorkTimes 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 lawenforcement, they stop accepting its systematic abuses. Laws against medicinalmarijuana are vulnerable because their targets include respectable citizens. Soif we want to rein in bad cops and bad laws, we might first unleash them on thewhite middle class. Imagine the political consequences of subjecting affluentwhites to the same degree of police surveillance and abuse that poor blacks andLatinos endure. The war on drugs is a war on minorities, partly because policepay relatively little attention to drug-law violations by whites. Nearly 70percent of people in prison are blacks and Latinos, who together constitute about25 percent of the nation's population. Prison conditions would improvedramatically if statistics like these were reversed.
We would also witness huge improvements in crime control if police andprosecutors were held accountable for misconduct. Criminal justice abuses arethreats to the public safety as well as to individual rights. When the innocentare persecuted, the guilty roam free.
