The death penalty debate was renewed last year when Republican Gov. George Ryan of Illinois imposed a moratorium on capital punishment. Gov. Ryan’s confidence in murder convictions was shaken when he found that there were more innocent than guilty parties on death row. Of 25 condemned murderers, 12 were executed and 13 on death row were cleared of capital-murder charges.
The debate was given added impetus by Carl M. Cannon’s article in the June 19, 2000, issue of National Review, and by an academic study released in June, 2000, that concluded that two-thirds of death penalty convictions were successfully appealed during 1973-95. The study has faults, but even when corrected for errors, it still shows a high rate of wrongful conviction.
The death penalty was politicized for the November presidential election by the Chicago Tribune’s investigation of 131 executions in Texas since Bush became governor. According to the Tribune, many of the cases "were compromised by unreliable evidence," bad lawyering and unethical prosecutors.
Conservatives defend the death penalty, and liberals reject it. This is a worthwhile debate, but the real issue is wrongful conviction. A defense of the death penalty as a deterrent or appropriate retribution is not a defense of wrongful conviction. No one wants innocent people convicted. Even if they escape execution, innocents still spend years of their lives in prison awaiting exoneration.
The broader issue is the high rate of wrongful conviction. Moreover, wrongful conviction is not confined to capital offenses. If the justice system cannot convict the right person in murder cases, or convict the defendant lawfully according to the rules, how can we have any confidence that police and prosecutors are doing better when it comes to burglary, white-collar criminals, and drug dealers? These convictions do not receive the scrutiny that capital offenses receive. Most result from plea bargains, and plea bargains are seldom subject to appeal even when the defendant is coerced.
Gov. Bush defended Texas executions on the grounds that those found guilty "had full access to the courts. They’ve had full access to a fair trial." This is the response of many conservatives, and it would be a good one if trials were fair.
But what if trials are not fair and conviction is not a reliable indicator of guilt? After five years of research culminating in our recent book, The Tyranny of Good Intentions, Larry Stratton and I found that the legal principles that guarantee a fair trial have been eroded by both good and bad intentions.
William Blackstone called these principles "the Rights of Englishmen." Achieved through centuries of struggle to make law accountable and justice just, the Rights of Englishmen insure that law is a shield for the innocent and not a weapon in the hands of prosecutors. Liberals and conservatives alike, in chasing after their favorite devils — drug dealers, environmental polluters, white-collar criminals, and child abusers — have reduced these protective principles to shadows of their former selves.
The Rights of Englishmen are: due process, the attorney-client privilege, equality before the law, the right to confront adverse witnesses, and the prohibitions against attacking a person through his property, bills of attainder, self-incrimination, retroactive law, and crimes without intent.
Each of these protective principles has been breached. Today prosecutors create bills of attainder by tailoring novel interpretations of law to fit the targeted defendant. A favorite tactic is to criminalize civil infractions, as in the Charles Keating savings and loan case. We have indictments and trials based not on a statutory violation but on a prosecutor’s "novel theory," as in the Clark Clifford and Robert Altman case. Even accidents and mistakes in filling out government forms have been criminalized, as in the Exxon Valdez and Benjamin Lacy cases. The ancient principle of mens rea — no crime without intent — has been obliterated.
Keating was convicted of a crime that did not exist until he was charged with it. Keating was caught up in the finger-pointing that resulted when ill-considered federal policies caused the collapse of the S&Ls and depleted the deposit insurance fund. Bonds issued by Keating’s Lincoln Savings & Loan lost value. Some bond owners claimed that salesmen had assured them that the bonds were federally insured. Under civil tort liability, a case could have been made that the parent organization was economically liable to the bondholders, if misrepresentation about the bonds security could be proved. Instead, prosecutors, with Judge Lance Ito’s acquiescence, transformed the civil tort doctrine into a felony. Keating was held criminally liable for the actions of subordinates even though he neither knew about nor approved of the alleged misrepresentations of the bonds security. Keating served four and one-half years in prison before federal district judge John G. Davies declared his conviction to be a violation of mens rea and the constitutional prohibition of ex post facto law and ordered his release.
Clark Clifford and Robert Altman were indicted on the basis of Manhattan District Attorney Robert Morgenthau’s "novel theory" that two separate legal transactions comprised a conspiracy of fraud and bribery. The trial revealed that the indictment was based on nothing but the prosecutor’s speculation, and the case against the bankers was thrown out of court.
The Exxon Valdez oil spill in Alaska’s Prince William Sound was an accident. However, the U.S. Department of Justice used an "innovative legal approach" to bring in a criminal indictment. Exxon was slapped with the felony charges of "discharging hazardous substances and refuse without a permit" and "killing migratory birds without a license." As these are acts of intent, the indictment surmises that Exxon intentionally ran its tanker aground in order to discharge hazardous oil and kill migratory birds. This absurd indictment was not thrown out of court. Instead, it was used to extract huge sums from Exxon in exchange for dropping the felony counts.
Ben Lacy, a 73 year old Northern Virginia apple juice producer, made some mistakes in filling out waste-water report forms. Federal prosecutors theorized that Lacy’s mistakes were evidence that he was covering up the pollution of a stream on his property. The stream turned out to be pristine, but prosecutors were able to keep this evidence out of court and to try Lacy on their surmise that his mistakes were evidence of a conspiracy to pollute.
Careless delegation by Congress of law-making power to regulatory agencies allows bureaucrats to define criminal offenses by how they interpret the regulations that they write. Statutory authority is combined with enforcement authority in the same hands, permitting vast discretion to regulatory police. A cooperative "offender" may get off with a civil penalty, whereas a person who sticks up for his rights may receive a criminal indictment. The ability of bureaucrats to spontaneously create criminal offenses by bureaucratic interpretation makes law uncertain and unable to fulfill its purpose to command what is right and to prohibit what is wrong.
All of the legal rights that restrained government and made men free have taken a beating in the 20th century, especially in the last two decades. The attorney-client privilege is today seen through a Benthamite lens, and attorneys who aggressively defend their client face indictments themselves.
Jeremy Bentham despised William Blackstone for emphasizing law as a restraint on government. Government needed to be unrestrained, Bentham argued, in order to do more good. With regard to criminal law, Bentham argued that it is wrong-headed to make conviction so difficult when government’s purpose is to increase the general level of happiness by combating crime.
Bentham believed in proactively rounding up people who were likely to commit crimes. He believed in compulsory self-incrimination and wanted to revive torture. He hated the attorney-client privilege and believed that lawyers should aid prosecutors in convicting their clients.
Bentham’s belief about the proper function of lawyers was given expression in 1990 when the federal government indicted the blue-chip law firm, Kaye, Scholer, Fierman, Hays & Handler, for not divulging to thrift regulators information pertaining to its client, Charles Keating and his Lincoln S&L. Assistant Attorney General Stuart M. Gerson used Bentham’s own words to brand the law firm "an abettor of crime" for not ratting on its client, even though the question of crime had not been established. To win its point the government froze the assets of the law firm and also the personal assets of its 400 partners. The asset freeze seems itself to have been a violation of law, and the government was heavily criticized for it by the New York City Bar Association and prominent legal ethicists. But the asset freeze forced Kay Scholer to settle the case by paying $41 million. In the aftermath, law professors, such as Kevin Reitz in the Duke Law Journal, now warn that "under current law, it could be a serious mistake for a suspect in a criminal case to obtain counsel." In 1999 Janet Novack reported in Forbes magazine that federal prosecutors are attempting further breeches in the attorney-client privilege by threatening a company’s lawyers with indictments for defending their client.
Americans are routinely attacked through their property, as asset forfeiture laws are used less for criminal enforcement and more for budgetary reasons. A 1990 Justice Department memo for U.S. attorneys stressed, "Every effort must be made to increase forfeiture income during the remaining months of 1990." The opportunity to augment law enforcement budgets with asset confiscations has skewed the efforts of law enforcement toward asset seizure and away from the apprehension and prosecution of criminals. In 80 percent of asset confiscations, no charges are brought against the confiscated owners.
The asset forfeiture laws are a perfect example of Sir Thomas More’s warning against cutting swaths through the law in order to chase after devils. The forfeiture laws were passed in order to strengthen the war against drugs. But as House Judiciary Committee chairman Henry Hyde (R, IL) has warned, the laws target property, not crime. The result is that Americans face "endless possibilities to be caught in the snare of government forfeiture." Grandmothers have lost their homes because of police suspicion that grandchildren used drugs in the house. Owners have lost rental properties, motels, yachts and airplanes because tenants or customers brought drugs or prostitutes to the property. Many have had cash confiscated because any amount over $100 constitutes "probable cause" for police to infer intent to buy or sell drugs.
Recently Rep. Hyde had a small success in making asset forfeiture more difficult, but the federal laws have spread into the states. Today many states permit civil forfeiture for any criminal activity. New Jersey allows forfeiture for any alleged criminal activity.
Every right emphasized by Blackstone has taken a pounding. Retroactive law is commonplace. Retroactive tax increases have become part of life. Superfund liability reaches back generations and falls upon people and organizations that never contributed an ounce of hazardous waste to a Superfund site. In child abuse cases, due process and the right to confront one’s accusers vanished when anonymous allegations became the sole basis for seizing children and placing them in foster care. Neighborhoods legally using local zoning ordinances to keep out commercially operated half-way houses and drug treatment clinics have been coerced by the Department of Justice and the Department of Housing and Urban Development into abandoning their right to equal standing in the law.
Two other factors combine with the loss of the legal principles that protect the innocent to produce a high rate of wrongful conviction: the breakdown of the prosecutorial ethic and plea bargains.
For centuries prosecutorial behavior was restrained by conscience and by the carefully inculcated ethic that the prosecutor’s duty is to serve justice by finding truth. The purpose of a trial was to weigh the evidence for and against the defendant, not to convict him at any cost. A prosecutor’s career and self-esteem did not depend on his conviction rate and the number of people he put behind bars, but, as Supreme Court justices Robert Jackson and George Sutherland put it, on seeing that justice was done. A prosecutor who suborned perjury or withheld exculpatory evidence in order to win a case was seen as a shameful figure.
Crowded court dockets, bureaucracy, budgetary pressures, and careerism contributed to elevating ambition over justice. The emergence of moral causes, or ends that justify the means, such as "saving our children from drugs" and "making environmental polluters pay," contributed greatly to the breakdown of prosecutorial restraint. Today a prosecutor who gives the defendant the benefit of the doubt is regarded as a failure. Robert Merkle was appointed U.S. Attorney by President Reagan and served in that post from 1982 to 1988. Prosecution, he says, is "a result-oriented process today, fairness be damned." Merkle says prosecutors are pressured to justify budgets with convictions, "and that causes them to prosecute absolutely bogus cases to get those statistics." Many former U.S. attorneys have spoken out on this issue. In 1998 Arnold I. Burns, Deputy U.S. Attorney General in the Reagan administration, wrote in the Wall Street Journal that "it is time for a sober reassessment of the power we have concentrated in the hands of prosecutors and the alarming absence of effective checks and balances to prevent the widespread abuse of that power." Perhaps the telltale sign of the seriousness of the situation is the law school textbook, Prosecutorial Misconduct, now in its second edition. In an honest criminal justice system, there would be no need for such a textbook.
Withholding exculpatory evidence has become routine, and suborned perjury is often the only "evidence" in a case. Juries are unaware that in many cases the witness giving incriminating testimony is not only rehearsed in the role but also paid by the prosecutor with money or reduced prison time. In 1998 the Pittsburgh Post-Gazette summed up its investigative reports of prosecutorial misconduct: "Hundreds of times during the past 10 years, federal agents and prosecutors have pursued justice by breaking the law. They lied, hid evidence, distorted facts, engaged in cover-ups, paid for perjury and set up innocent people in a relentless effort to win indictments, guilty pleas and convictions. Rarely were these federal officials punished for their misconduct. . . . Perjury has become the coin of the realm in federal law enforcement. People’s homes are invaded because of lies. People are arrested because of lies. People go to prison because of lies. People stay in prison because of lies, and bad guys go free because of lies." It casts doubt on the integrity of the entire criminal justice system when the limited resources of one newspaper are sufficient to expose hundreds of cases of criminal behavior by federal law enforcement officials.
In recent years the prosecutorial ethic has hit rock bottom with the new practice known as "jumping on the bus." Informants sell information on unsolved cases to prison inmates. Sometimes prosecutors and federal agents feed the information directly. The inmate memorizes the case, which gives him the appearance of having inside knowledge. Then the inmate comes forward with information to trade in exchange for a reduced sentence, which under the sentencing guidelines can only be granted at a prosecutor’s request. Once a deal is struck, the inmate works with the prosecutor to concoct a case.
Sometimes "jumping on the bus" is used against a person whom prosecutors believe to be guilty but against whom they have no evidence. At other times the goal is to close unsolved cases, and the inmate supplies the name, perhaps that of another inmate. Formerly, self-serving accusations by criminals were treated as leads to be investigated. If the leads panned out, evidence still had to be marshaled. Today, the accusation is the evidence. Prisons are filled with people falsely convicted by other inmates, who use information from confidential federal law enforcement files to corroborate crimes they have not witnessed and to concoct testimony against people who did not commit them.
Inmates have displayed more conscience than many U.S. attorneys and have repeatedly blown the whistle on the scheme. According to investigative reports in the Pittsburgh Post-Gazette in 1998, the Department of Justice and FBI have repeatedly turned a blind eye. The reprehensible practice of "jumping on the bus" is so ingrained in law enforcement that it cannot be officially acknowledged without having to release a large number of people from prison and sustain a large number of wrongful conviction lawsuits. Since no attorney general is going to attempt such a clean-up, it means that in the U.S. today the criminal element has a big say in who goes to prison.
Weak and fabricated evidence would run a higher risk of exposure if it were tested in court. But according to the U.S. Department of Justice, only about one case in 20 goes to trial. The rest are settled with pleas. Plea bargaining has many deleterious effects on the criminal justice system.
Conservatives believe that the problem with plea bargaining is that it permits criminals to get off too lightly, thus undermining the deterrent effect of punishment. However, the problem with plea bargains is far more serious than reduced deterrence.
Plea bargains undermine police investigative work. As few cases go to trial, police have learned that their evidence is seldom tested in the courtroom. Carelessness creeps in. The sloppier the investigation, the less likely is the right person to be apprehended.
Prosecutors have found that plea bargaining greatly increases their conviction rates and that they can coerce a plea by raising the number and seriousness of the charges they throw at a defendant. Defendants are swayed by the cost of a defense and by the realization that conviction at trial on even one of the charges can carry more severe punishment than a plea to a lesser charge. The sentencing differential alone is enough to make plea bargaining coercive.
Plea bargaining originated as a way of meting out punishment in a timely fashion. But as time passed, plea bargaining corrupted the justice system by creating a fictional crime in the place of a real one. The practice of having people admit to what did not happen in order to avoid charges for what did happen creates a legal culture that, as it develops, eventually permits prosecutors to bring charges in the absence of crimes.
As a little yeast leavens the whole loaf, systematized falsehoods about crimes corrupt the criminal justice process. By making the facts of the case malleable, plea bargaining enables prosecutors to supplement weak evidence with psychological pressure. John Langbein, a noted legal scholar, compares "the modern American plea bargaining system" with "the ancient system of judicial torture." Many innocent people cop a plea just to end their ordeal. In effect, we have resurrected torture, because confession and self-incrimination have replaced the jury trial.
Conservatives need to understand that the problem of corrupt justice goes deeper than law enforcement personnel and cannot be corrected by cleaning out the Clinton DOJ. The very concept of law that protects us from tyranny has been lost. No longer the people’s shield, law has become a weapon in the hands of government. Justice is no longer a concern of the justice system.
What can be done? Nothing without a rebirth of veneration for justice and the Constitution. Our plight is that law, as defined by Blackstone, has lost the allegiance of American elites. Jeremy Bentham prevails with his view that government must be less restrained so that it can do more good. Legal scholars identify with the causes that coercive power has advanced. Tyranny is always the consequence of unrestrained power. That is the reason Americans feel increasingly defenseless not only in the criminal justice system but also more generally when facing the government that they supposedly control.
Dr. Roberts is John M. Olin Fellow at the Institute for Political Economy and Senior Research Fellow at the Hoover Institution, Stanford University. He is a former associate editor of the Wall Street Journal and a former assistant secretary of the U.S. Treasury. He is the co-author of The Tyranny of Good Intentions.