America’s Unspeakable Crime: Our Criminal Justice System

Anybody who says we’re not making progress fixing up the criminal justice system is either a damn liar or ignorant as hell. Just last year, the State of Florida retired “Ole Sparky,” the electric chair they’ve been using ever since 1923. Although the old boy had dispatched more than 200 guilty-as-sin murderers, he was developing a few hiccups, so they replaced him with Sparky Jr., into which they immediately sat Allen Lee (Tiny) Davis.

Tiny was the 350-pound triple murderer who petitioned the U.S. Supreme Court to let him off the hot seat because he was too fat to fry. Tiny’s lawyers maintained that all that fat would cause Tiny cruel and unusual pain when they threw the switch. The Supreme Court, we’re happy to say, wasn’t having any of that, so they zapped him, and, when they did, according to the New York Post , Tiny “jolted back into the chair, clenched his fists and began to scream, and blood shot from his mouth, nose and chest. He was pronounced dead five minutes later.”

Tiny’s quick broil was carried out under the supervision of Jeb Bush, the Governor of Florida, who doesn’t hold a candle in the execution department to his brother, George, the Governor of Texas, who has overseen the dispatch of no less than 119 people. Since they estimate that one person in seven on death row didn’t commit the crime for which he or she has been sentenced to death, it appears that George W. may have presided over the murder of 19 human beings-and they say this guy doesn’t have the balls to be President. Eight years ago, this writer decided not to vote for Bill Clinton after he broke off his campaign to go back to Arkansas to make sure his state executed a mentally defective half-wit, but that pales beside the accomplishments of the heartless little Texan with the crooked killer’s grin.

As long as three years ago, the American Bar Association, whose members bear the principal responsibility for the states’ shedding of innocent blood, suggested a temporary cessation of the killings. On the other side, our own dear Gov. George Pataki has been grousing and groaning that it takes New York State too long to take a life. We can thank God that Mr. Pataki is so ineffectual that if he stays in Albany for 20 years he won’t catch up with the compassionate conservative from Austin. At least one governor has his head screwed on straight, however. Illinois’ George Ryan has placed a moratorium on executions until it has been demonstrated that they are sticking their poisoned needles into the right arms.

Stimulated by movies such as The Hurricane and PBS’s Frontline program on the subject, produced by Ofra Bikel, there has been of late an upsurge in talk about the Government’s killing innocent people. Seemingly, anyone who interests himself in the cases of people on death row stands an excellent chance of finding an innocent wretch condemned to death. College students at Northwestern University have been able to go out as part of their course work and prove that a condemned man didn’t commit the crime. It’s as easy as that to discover fatal miscarriages of justice.

And then there are the nonfatal miscarriages of justice. If the one-in-seven estimate of innocent persons convicted holds up in noncapital crimes, there are at least several hundred thousand people in our jails and penitentiaries who don’t belong there. When someone asks how this catastrophe could have happened, we are told that poor people and racial minorities are often defended by worthless lawyers, drunks, lazy bums, cynical thieves and other kinds of incompetents. The bar association wants more money appropriated to hire a better class of lawyers to defend the indigent. It’s so typical of lawyers to demand more money. There is no end to the greed of the members of this occupation and no reason to believe that handing over yet more of the gross domestic product will buy us justice.

Do the judges and the prosecutors who allow innocent people to be represented by incompetent counsel need more money to put a stop to a self-evident burlesque of a trial? Some people on death row were represented by lawyers who fell asleep during their murder trials. It had to be obvious that the defendant was getting a quick, slick ride to the gas chamber, and the other lawyers in the room, lawyers who doubtless prate about the glories of American justice as they are wont to do, let these horror stories unfold in front of them while they’re standing not 10 feet away.

The unfolding scandal in the Los Angeles Police Department’s Rampart Division gives a glimpse to the lay public of how often defendants are framed. Framing the innocent is hardly a Los Angeles specialty. Bank on it. Such stuff goes on in all major metropolitan areas. Drugs and guns are planted on people, police witnesses perjure themselves and so forth. Prosecutors and lawyers, who have been around jails, police stations and courthouses for years, cannot possibly be unaware of what’s going on. The judges and the prosecutors know, or they suspect, and they say to themselves, “Well, if this guy didn’t commit this crime, he committed one just as bad, so it all evens out in the long run.” It’s like the racial profiling business, which has gone on since Hector was a pup and everybody knew about it. The judges knew, the bar association knew, the newspaper reporters knew, the prosecutors knew and those alligator-shoed, attaché-case-carrying, Barneys-suited law devils sashaying in and out of the courthouses knew, but they didn’t say anything and they didn’t do anything.

This is the real criminal justice system, not the one those unspeakable professors from the law schools utter bland words about, not that system which they tell us is the best in the world. They don’t say how it’s the best in the world. Take it on faith. It just is. But if it is the best in the world, then what goes on elsewhere is hideous beyond description.

Whenever there is an explosion of moral methane such as is going off now and the public gets a good look-see at what’s going on inside those expensive courthouses, the next sounds heard are volleys of adjuratory ballyhoo about fixing the system. There are calls for reform, usually from lawyers who don’t want the system changed, just adjusted a tad. But after a century or so of these scandals, maybe it can’t be made to work. Maybe the system which the lawyers and the professors love so much and which has done so well by them is unfixable.

Behold, for instance, the much-lauded “adversarial system.” Its premise is that two lawyers, pitted against each other in the legal cockpit of the courtroom, will bring the truth of the matter, will make innocence and guilt manifest, but it’s poppycock. The two lawyers bob and weave, obfuscate, confuse, mislead and dissemble until justice runs out of the courtroom and jumps on a fast plane to Mexico. Even if the adversarial premise were valid, it would only be valid if the opposing lawyers were approximately equal in skill and ethics. The bar association believes the skill imbalance that results in so many people of color getting railroaded into the penitentiary can be redressed by paying more to lawyers representing the indigent. Yes, well, lawyers always say justice is better served by putting more pelf in their pockets. That doesn’t address the question of ethics, but that’s not one concern the bar associations get too worked up about, anyhow.

In place of adversaries, why not ponder a system under which neutral magistrates present the evidence, pro and con, to a jury? The prosecutor’s and the defense counsel’s roles would be limited to giving summations and making sure that the magistrates followed procedures and the rights of all concerned were protected.

Maybe neutral magistrates are not a good idea and the criminal justice system should be changed in other ways. Junking grand juries would be one step in the right direction. Another would be creating “counter-cops,” a small police force whose job it would be, under the direction of public defenders, to dig up evidence for the defense. Something like that is necessary, since lack of money to pay for investigations plays such a large part in our rituals of injustice, which send so many innocents to ruin and doom.

As it stands now, the criminal justice system is a crime itself. Overwhelmed by the numbers of people being tried and unable to cope with them, a bad system has broken down and collapsed under the pressure put on it by the drug laws. To say that crime is down is not enough. Crime was down under Mussolini, I’ve been told. We must have justice, and we ain’t got it.