More About Innocence

In 1995, Rolando Cruz, who was twice tried and convicted for the murder of Jeanine Nicarico, was granted a new trial by the Illinois Supreme Court, which finally decided that someone else’s confession to the crime just might be a significant piece of data.  The prosecutor claimed to be infuriated and appalled.  So were the victim’s parents.  They had a right to have this case finished, they said.  “Cruz has already had a lot more chances than my daughter had,” Jeanine’s father said.  The case has lived a year longer than Jeanine herself did.

What this tells us is pretty much the same thing the Gary Dotson case told us, the same thing we learned from the 1994 Texas death penalty case in which the U.S. Supreme Court in its wisdom decided that innocence, at least if not asserted in the proper time, place, and manner, is a mere technicality, the same thing we just learned in the Supremes’ Osborne decision from Alaska.  We learn from all of these cases that the “criminal justice system” is not actually about justice.  Indeed, it is not even about vengeance and retribution, as we ordinarily understand them–doing unto the others who have done unto us.  It’s about human sacrifice.  If the Bad Guys have caused X amount of destruction, pain, and death to the Good Guys (us), the Good Guys are thereby entitled to cause roughly the same amount of destruction, pain, and death to any member of the Bad Guy class–i.e., young, poor, non-white, male, high school dropouts with prior criminal records.  The Bad Guys, like all sacrificial animals, are interchangeable.  We may be horrified when we find santeros sacrificing livestock in the public park, but, after all, we generally find chickens more likeable than Bad Guys.

Once upon a time, criminology students were taught that the purposes of the punishment meted out by the law enforcement system were four: rehabilitation, deterrence, incapacitation, and retribution.  Well, we gave up on rehabilitation 30 years ago, on deterrence 20 years ago, and on incapacitation 10 years ago.  Now we are giving up on specific individual retribution.  That is:
1) we no longer believe the criminal justice system can reform the Bad Guys–once a Bad Guy, always a Bad Guy
2) we have decided that we do such an uncertain and sloppy job of catching the Bad Guys that almost no one from the Bad Guy class is deterred from committing crimes by the prospect of arrest, prosecution, conviction, and punishment
3) we can’t even be sure of keeping Bad Guys off the street for any length of time any more; and now
4) we can’t afford to take the time and effort to make sure we’re punishing the right Bad Guy for a particular crime he actually committed.  This, of course, should have been obvious to us 30 years ago, when, for the first time, more criminal charges were resolved by “plea bargains” than by trial.  The whole point of the plea bargaining system is that, if the prosecution can’t prove and doesn’t know what the defendant has done to deserve punishment, the defendant does know. Currently, 95% of all criminal cases are resolved with plea bargains, in which the prosecution doesn’t have to care if the defendant did what he was accused of doing, so long as he meets the other requirements of membership in the Bad Guy class and can be persuaded that he will get a better deal by pleading guilty to whatever the prosecutor wants to charge him with than by going to trial.

At the same time, in parallel with these developments, the victims’ rights movement has been evolving.  It arose as a reaction to the increasing mechanization of prosecutorial offices.  Prosecutors currently consider “unwinnable” any case that depends on the testimony of an innocent civilian witness, as opposed to someone they can rely on to testify as and when required–a police officer, a paid police informant, or an accomplice of the defendant.  So prosecutors rarely go out of their way either to file or to follow up charges brought by innocent civilian witnesses.  They see their job as “disposing of cases,” rather than convicting people for acts they have actually and provably committed.

Victims and their families, not unreasonably, got tired after a while of having to take time off from work again and again to go to court without ever having an opportunity to testify.  They got furious with not being informed of all court dates, and then seeing cases dismissed because “the complaining witness did not appear.”  (As a practical matter, the defendant can probably turn up missing several times before anything serious happens to him; if the complaining witness fails to show up once, the case is almost automatically dismissed.) They got utterly fed up when the prosecution bargained their cases down to time served and turned the criminal out onto the street, without even warning the victim, much less consulting her.  And they found it even more infuriating that they–and all other taxpayers–had to pay exorbitant sums in tax money to maintain this system.  The defendants get free room and board (with no obligation to do anything to repair the damage done to the victim); the lawyers get a job; and the prosecutor gets elected to whatever he’s running for this year. And the victims get–a lot of lost time from work, a lot of intimidation in court from the defendant and his buddies, the pain of having to remember and recount the victimization over and over for years, and the same gigantic tax bill the rest of us get.  Who can blame them for being angry?

And some of the responses of the criminal justice system to the victims’ rights movement were in fact fairly appropriate:
1) the use of civil suits against defendants, to prevent them from ever being able to profit from book and movie rights resulting from the crime, or ever being able to get rich at all, from any source;
2) Victim-witness assistance programs, to counsel victims and witnesses, and keep them informed of court dates
3) in many jurisdictions, requirements that the prosecutor must consult with the victim or the victim’s surviving family before plea bargaining the case
4) in some jurisdictions, the right of the victim or his/her surviving family to address the court before sentencing, whether the conviction results from a trial or a plea bargain.

The problems arise when the victim or his/her family demand a role in the process of adjudication (the “did he do it or didn’t he?” phase of the trial) beyond that of occurrence witness, and use that role to testify to the victim’s good character and beloved place in the community, or the devastating consequences of the crime.  These issues have no relevance at all in the adjudication phase.  At that point, it is the job of the prosecution to prove beyond a reasonable doubt that they have prosecuted the actual perpetrator, and of the trier of fact to find that they have done so, before any questions connected to the victim’s character and value to others can even be considered.  Before we can talk about the kind of person the victim was, we need to establish that s/he was in fact this defendant’s victim. The victim and his/her family have no right to see a particular defendant convicted, unless he happens to be provably guilty.

Indeed, even at sentencing, the fact that the victim was a good person, loved and valued by community and family, and that the loss of the victim, especially in such a horrendous crime, has devastated the family and the community, is only dubiously relevant.  Is it really more heinous to kill a church-going mother of 2 small children than a homeless man with no known family? If we take this position, we are only a short distance away from giving a medal to a person convicted of murdering a street person or some other general nuisance, instead of punishing him. The victim’s character and value to family and community are certainly valid questions in a civil suit, for purposes of calculating damages.  But in a criminal case, the controlling issue in sentencing should be the effect of the crime on the public welfare (what the medievals called “the king’s peace.”)

Well, okay, that was then.  Now, we’ve already decided that justice has been done, the victims made whole, and the “king’s peace” restored, if anybody is convicted of the crime.  The fact that the wrong person may be languishing in jail is of no consequence, so long as he is the right kind of person–young, male, preferably non-white, poor, high school dropout with a prior criminal record.  Whether or not he committed this particular crime, we figure we are all better off if people like him are in jail rather than on the street.

Most recently, we are even willing to extend this reasoning to the death penalty.  It’s okay to fry the wrong person so long as we fry somebody from the Bad Guy class.

We are not even made particularly uncomfortable by the fact that convicting or punishing the wrong person may well mean that the right person is still on the streets, threatening and victimizing other Good Guys.  After all, given enough time and the proper working of karma, and a wide enough dragnet for “the usual suspects,” the person who escapes prosecution for a crime he has actually committed will probably end up behind bars or even on Death Row for somebody else’s crime, or another one of his own (as Brian Dugan–the confessed killer of Jeanine Nicarico–did, after all.)

The criminal justice system has turned into an actuarial operation, which is defined as functioning properly when the people most likely to be guilty of some violent street crime are also most likely to be convicted of and punished for some violent street crime, whether or not the two crimes are identical, and whether or not any individual “most likely” suspect is actually guilty of any violent crime at all.

Of course, at this point, we may simply not have the money to use the criminal justice system for its original purpose.  The FBI estimates that only a tenth of all violent crimes committed are reported; less than half of all reported crimes result in arrest; less than half of all arrests result in the bringing of criminal charges; and, as stated earlier, 85% of all criminal charges are resolved by “plea bargaining” rather than trial.  Serious pursuit and trial of all violent criminals would increase the cost of the criminal justice system by a factor of 240.  No politician on the face of the earth would seriously consider proposing this to the taxpaying voters.

But, if we are not to have a real system of justice, why should we pay as much as we are paying, just for the current actuarial arrangement?  Why not take the actuarial concept to its logical conclusion and just hold a lottery on a regular basis, to choose the members of the Bad Guy class who get to go to jail, and for how long?   Once or twice a year, we could hold a big lottery to pick a candidate (or two, or however many our marketing mavens think would pay off maximally) for Death Row?  The system would not only be cheaper than our current one, it could actually be made to pay for itself or even run a surplus, if we turned it into a state-sponsored, televised “Reality Show” sweepstakes.

We wouldn’t even have to televise the actual executions, if the do-gooders insist on keeping them off the screen.  Just Vanna White drawing numbers out of a rotating basket, with the pictures of  the suspects sweating it out until the word comes down, and then reacting appropriately to winning or losing.  Then we interview all parties on Oprah (hey, it pays a whole lot better than a presentence investigation–can you say “privatization”?) and hold a contest for school kids to write in with the most original ideas for execution.  First prize, obviously, is a ringside seat for the winner and his or her family; second prize is a working model of the winner’s choice of an electric chair or guillotine; third prize is a statue of the Lady with the scales.  Only she’s dressed in a spandex bustier and hot pants, fishnet stockings, and spike heels, with twenty-dollar bills peeking out of her cleavage.


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