Convicting the Innocent: Welcome to Prison Nation

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A statue of a blindfolded "Justice" holding scales stands in front of the U.S. Supreme Court, supposedly signifying that justice in this country is a matter of seeking the truth. The statue is more accurate than most people realize, as blindness certainly seems to be the order of the day, especially when it comes to rectifying the horrible mistakes resulting in the conviction and imprisonment of innocent people.

A recent New York Times article seems to sum up best what is at stake:

HARPES, Fla., Aug. 26 u2014 After seeing more than 130 prisoners freed by DNA testing in the last 15 years, prosecutors in Florida and across the country have mounted a vigorous challenge to similar new cases.

Prosecutors acknowledge that DNA testing is reliable, but they have grown increasingly skeptical of its power to prove innocence in cases where there was other evidence of guilt. Defense lawyers say these prosecutors, who often relied on the same biological evidence to convict the defendants before DNA testing was available, are more committed to winning than to justice.

The fight has become particularly heated in Florida, where prisoners will soon be barred from seeking DNA testing for old cases under a 2001 law that set an Oct. 1 deadline for such requests.

The article goes on to say that now that DNA evidence has been able to show that the semen of those convicted of rape does not match the semen found in rape victims is generally discarded by prosecutors in Florida. Of course, those same prosecutors are willing to rely on DNA testing in order to obtain convictions. In other words, according to prosecutors, it is "heads I win, tails you lose." (Furthermore, what prosecutors call "other evidence" often is highly unreliable itself, such as "jailhouse confessions to snitches" and coerced confessions.)

Readers of this page have seen previous articles of mine in which I have been extremely critical of federal prosecutors, judges, and bureaucrats. I believe the federal system is more immune to the necessary checks and balances than are state systems. However, that hardly means that state prosecutors are beyond reproach. Instead, state prosecutors often are subject to constraints that do not bind prosecutors in the federal system. That does not mean those constraints are a fail-safe system, however, and in the current political and moral climate, it seems as though many of the guardrails that have been erected rapidly are being torn down. To put it another way, the keepers of the law are ambitious, cunning, and care not a whit for truth, only whether or not they can "just win, baby."

In a recent Independent Review article Paul Craig Roberts writes about the epidemic of wrongful convictions in state and federal courts. The article is impelling, in that it goes beyond mistaken applications of evidence and points to an ethos of ambition on behalf of prosecutors and a disdain for the rights of individuals. I would like to add something to his words, that is another reason why the court systems have become a great maw in which guilty and innocent are thrown into a terrible mix: the politicization of American society, and the secular religion that the political classes have spawned.

In the recent controversy over the placing of the Ten Commandments in the Alabama state supreme court building, one must conclude that the problem was not so much an attempt by Alabama Chief Justice Roy Moore to establish a religion as it was the federal government (aided by the other Alabama justices) making sure that no entity be permitted to compete with the already-established U.S. religion of secularism. Nothing can be permitted to compete with the glorification of the modern state and the near-deification of the political classes who are in its employ.

Now, please do not misunderstand me; I prefer a secular state to a theocracy, and am not allied to the Religious Right that seems desperate to have a "place at the table" in the current political debates. However, I do agree with those religious conservatives when they declare that modern government has become a near-religion in itself. (However, I also have been extremely critical of those religious conservatives who have tried to wed their own brand of Christianity to the state, giving us a very nasty Civil Religion in which the state is expanded all the same.)

One area where religious conservatives are adamant in expanding the state is in the realm of "law-and-order," and especially in the prosecution of accused criminals. In a recent television appearance on "Larry King Live," Bob Jones III, president of Bob Jones University, a Christian fundamentalist college in South Carolina, that he supported the use of the death penalty in America even though innocents would surely be executed along with the guilty. In other words, it was the application of the "collateral damage" argument to the act of the state officially killing individuals.

Jones believes that since the Old Testament called for the death penalty for murderers (and a host of other miscreants, including adulterers), then the modern death penalty also is Biblical. That may or may not be so, but in the Old Testament there existed a large number of institutional barriers against the possibility of convicting the innocent, barriers that are nearly non-existent in today’s modern state.

One barrier has been the application of DNA testing to old cases that were decided before the advent of such procedures. In Illinois, for example, when it was revealed that DNA tests cast serious doubts upon the culpability of a large number of individuals on death row, the Republican governor tried to get the Republican-dominated state legislature to build more safeguards into capital murder laws to prevent such miscarriages of justice. Predictably, the "law-and-order" Republicans — egged on by religious conservatives — refused to do so, as legislators feared that such a move would cast doubt on their "tough on crime" images.

Finally, the governor pardoned a number of wrongfully convicted prisoners and commuted the sentences of the remaining death row inmates to life imprisonment. The howl from religious conservatives was predictable, yet few if any of those critics were aware that the public position they were taking on this issue seriously undermined those Ten Commandments that they claim are vital to this country. In other words, religious conservatives desperately want public displays of the Ten Commandments; they just don’t want to have to live by them, or, more importantly, have government officials live by them, especially in the areas of law enforcement and the courts.

So, in the end, we have "law-and-order" prosecutors finding clever ways to keep innocent people in prison, and among their most crucial allies are religious conservatives, the very people who claim to believe in the Ten Commandments, yet shun the following words from Exodus 23:7: "Keep yourself far from a false matter; do not kill the innocent and righteous," (NKJV). Thus, we have the ultimate — and most pernicious — political alliance between the secular "postmodernist" government officials who care only about their own careers and religious conservatives who claim to want "one nation under God." Indeed, both groups have a god; it is called the imperial state.

Lest one think that only religious conservatives are to blame, religious liberals also are among the worst state worshipers in our society. While Christian conservatives at least claim to believe in the basics of the Christian religion, the liberals have created a whole new set of religious beliefs that are little more than a fig leaf for the secular religion of the American state.

For example, the editors and supporters of Sojourners Magazine like others to see it as a publication that is an advocate for the poor and defenseless, yet, it is basically a front for the leftist elements of the Democratic Party. In fact, while Sojourners was championing the presidency of Bill Clinton and especially his attorney general, Janet Reno, the U.S. prison population doubled during the Clinton Administration, most of those new prisoners being poor and black.

In a recent issue, Sojourners featured an article by Scott Harshbarger, president of Common Cause, extolling the passage of "campaign finance reform." (He described the Shays-Meehan bill in Biblical terms worthy of Cecile B. DeMille, writing: "The psalmist’s spirit would be crushed without the faith that goodness can triumph here, in our world, just as our democracy is stronger when we have the faith that people, united, can make change." In other words, he gives us more glorification of the state as God.)

Harshbarger, however, is no ordinary statist. The former attorney general of Massachusetts, he was one of the leaders in prosecuting the Amirault family in what can only be called a modern witch hunt worthy of the worst excesses of 1692 Salem. A number of family members were imprisoned on false charges of child molestation, charges that were so unbelievable and ridiculous that the appeals courts overturned many of them. (Dorothy Rabinowitz of the Wall Street Journal won a Pulitzer Prize for her exposure of the prosecutorial shenanigans of Harshbarger and his prosecutorial allies. Much of her work can be found in her recent book No Crueler Tyrannies.)

Unfortunately, the Massachusetts Supreme Court — at Harshbarger’s urging — refused to overturn all of the charges and left one family member imprisoned. The court, while seeming to agree that Gerald Amirault had been railroaded into prison and that the charges were questionable, declared that the state needed "finality" in the case (the court’s words), and that finality here meant that the state had to be right. Thus, we see Harshbarger, the "good government" advocate, being aligned with the worst forces of the state.

This unholy alliance has produced a state that imprisons more people than any other nation in the world, the vast majority of them non-violent offenders. When one adds to that number those who have been wrongfully — and often cynically — convicted by a system of callous, ambitious government employees, it is not hard to understand why prosecutors care more about covering their own backsides than seeking justice. What makes this sorry state of affairs even worse is that those who claim to seek Biblical public morality in the public square often are the strongest allies of the Prosecutorial State of Prison Nation.

September 2, 2003

William L. Anderson, Ph.D. [send him mail], teaches economics at Frostburg State University in Maryland, and is an adjunct scholar of the Ludwig von Mises Institute.

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