117. Slate silliness
Slate, usually a bastion of intelligence on the web, ran an article by Alexandra Natapoff, a professor of law, that includes this passage:
And so people plead guilty, at a rate of 90 percent to 95 percent. The criminal trial is nearly extinct. Most defendants never get the benefits of the constitutional protections contained in the Bill of Rights. To be charged with a crime means, in practice, that you will most likely plead guilty to a crime, not because you are guilty, but because the system offers no other realistic options.
"Collective bedrock" sounds like an exercise in Jungian geology. And it's the very opposite of an intuition to say that people are innocent until proven guilty. Our intuition, when confronted with evidence of wrongdoing, tends much more in the direction of the multitude's response to the accusation against Susannah. Daniel's ratiocination was the unintuitive approach. The idea that people are innocent until proved guilty is a learned attitude, a mark of civilization.
I hope the professor isn't saying that because a person is innocent until proven guilty, therefore people who plead guilty are innocent, because their guilt hasn't been proven.
A friend of mine was once on a Law Day panel with a judge at a high school. In response to a student's question, my friend said casually, Well, of course the exclusionary rule means that guilty people go free. The judge said: That's not right. If the evidence is suppressed, they can't be found guilty.
Well, it all depends on what your definition of "guilty" is, I suppose. If "guilty" means the jury's foreperson signed that particular verdict form, then both the judge and the professor are correct. But if "guilty" is defined instead as the condition of one who has committed a crime, they're both wrong.
Anyway, speaking as an appellate lawyer working for an Attorney General's office, and knowing something about the huge backlog of appeals awaiting action in the offices of our counterparts in the New Mexico Public Defender's office, I feel I'm on pretty firm ground when I say that, out here in the sticks at least, the criminal trial is "nearly extinct" in roughly the same sense in which Canada geese are.
The word "charged", as used by the professor, is ambiguous. Most people, I think, would say a person arrested by police has been charged. In fact, the American Heritage dictionary provides this illustrative usage: "The police charged him with car theft."
A significant percentage of those charged in the dictionary's sense don't plead guilty for the simple reason that they're not prosecuted. You can find the figures in post 58: the annual number of arrests vastly exceeds the number of convictions. If you prefer anecdotal evidence, there's Edward Conlon's memoir, a pertinent excerpt from which is given in post 100.
In Albuquerque, a medium-sized city (# 33 in the nation based on actual city population, or # 62 by the more realistic metropolitan statistical area ranking - I sometimes get the impression that most people living elsewhere think we're more like this), about one-third of all arrests are not followed by prosecution. That's been the average for years, or so I've been informed by folks familiar with the administration of the Bernalillo County DA's office.
A paralegal whose job was to screen drug cases told me about 20% of the cases didn't get past her desk. And - of course - in every single one of those cases we can be absolutely certain that somebody had violated the law.
These are rough figures, and we should cushion them with fat margins of error. Even so, there's no escaping the conclusion that a lot of arrestees are never prosecuted.
If the professor is using "charged" in the more technical sense, to refer to a pleading that survives the initial determination of probable cause, then she seems to be saying that probable cause doesn't correspond to factual guilt more than half the time ("most likely"). In drug cases, that's just silly: the same cocaine in your pocket simultaneously establishes both probable cause and guilt beyond a reasonable doubt.
In non-drug cases, my guess is that findings of probable cause correspond to factual guilt far more accurately than do guilty verdicts. That's because guilty verdicts are, or ought to be, based on a finding of proof beyond a reasonable doubt. By adopting such a very high standard of proof we ensure that a great number of very guilty people avoid punishment. Al Capone was never convicted of murder, but that means only he was not guilty, not that he was innocent.
My guess is that Professor Natapoff was hyperventilating in the style of those advocates who flash alarming statistics to draw attention to their cause: 4 out of 5 Americans will, at some point in their lives, suffer from [insert your favored syndrome or disease here]. And I certainly don't dispute her basic point, that resources should be poured into the defense of indigent criminals. But fully 1,724% of state legislators indicate that the publication of silly hyperbole in online magazines makes them less likely to vote for increased funding for the cause in question.
Wednesday, May 31, 2006 at 10:31PM in Crime statistics
Reader Comments (2)
What I saw in this excerpt, however, was an attempt to describe -- perhaps too dramatically from your critical writer's perspective -- what has become of the right to jury trial under the modern criminal justice regime in many jurisdictions due to mandatory sentencing, mandated consecutive sentencing, no parole, and multiplicitous definition of offenses -- a regime the Framers would hardly recognize today. In such a jurisdiction, a defendant may face 15 to 30 years mandatory imprisonment in a typical case if convicted -- and he usually will be convicted if we accept your realistic factual premises -- but prosecutors seeking, as representatives of the government, the punishment they believe is appropriate, will readily accept a guilty plea to an offense(s) bringing, for example, 3-5 years. Looking at it from a "presumed innocent" perspective, a perspective you may consider pollyannish in the abstract, we, nonetheless, are effectively being told that the government considers the appropriate punishment for your offense to be 3-5 years, but if you want to exercise your right to jury trial and make us work for it, it will cost you 10-30 more years to exercise that right. A former state Attorney General here expressed the situation, perhaps unintentionally, but quite aptly and succinctly, when, expressing only tepid legal support for another mandatory sentence offense before a criminal justice committee (as an elective official, still not opposing the bill), he explained: "Don't get me wrong, prosecutors love mandatory sentences; we can use them to get the defendant to plead guilty to what he did."
I suspect that was effectively the point the professor was trying to make. Perhaps, the rhetorical point registered high on your fatuity scale, but it's a point that many who've worked both sides of the criminal justice system recognize, and nearly as many probably are reluctant to acknowledge because of its unfortunate political utility in our criminal justice systems.