Clive Crook on justice by plea bargain

This column about the recent suicide of Aaron Swartz, who may have been driven to it by zealous prosecutors, pointed out a few things I didn’t know:

By and large, American prosecutors no longer fight their cases at trial. The new dispensation is justice by plea bargain. The more savage the penalties prosecutors can threaten, the more likely the defendant (guilty or innocent) is to speed things along by pleading guilty and accepting a light penalty. […]

In my conception of criminal justice, the prosecutor’s role is to establish guilt, not pass sentence. Juries have already been substantially dispensed with in this country. (By substantially, I mean in 97 percent of cases.) If prosecutors are not only going to rule on guilt unilaterally but also, in effect, pass sentence as well, one wonders why we can’t also dispense with judges. […]

In recent years, as the Wall Street Journal has documented in a disturbing series of articles, Congress has enabled prosecutorial intimidation by criminalizing ever more conduct, passing laws that provide for or require extreme sentences, and reducing the burden of proof (through expanded application of "strict liability", where lack of criminal intent is no defense).

"There is no one in the United States over the age of 18 who cannot be indicted for some federal crime," said John Baker, a retired Louisiana State University law professor… "That is not an exaggeration." And if a prosecutor should turn his righteous all-powerful gaze on you, you’re done for. In this system, everything depends on the moderation and good sense of prosecutors. […]

Crook ends his column with this:

As a foreigner, I’m surprised that Americans aren’t more alarmed by the workings of their criminal justice system. I don’t know what ought to scare me more about living in the United States–that I might be the victim of a crime (which happens), or that this ferocious prosecutorial system might one day turn its wrath on me. I’d rather be mugged than threatened with years in jail for something I didn’t even know was a crime. Is this justice system actually on my side? I’m by no means sure–an astounding state of affairs.

At a conference I attended recently, I vented my preoccupation with rogue prosecutors, an ever-proliferating criminal law and the vanishing rights of the accused on a fellow attendee–a lawyer and former prosecutor. When I’d said my piece she said, "But you have to remember that nearly all of the people who are prosecuted are guilty." For half a second I thought she was joking and I started to laugh. But she wasn’t joking.

I wonder how much less brave talk there would be if these facts were widely known.

Important observation from Robert Wright

I’ve followed Robert Wright’s writings for many years, since stumbling upon his book Three Scientists and Their Gods nearly 25 years ago. At the beginning of 2012 he started blogging for The Atlantic website, but after a year has decided to bring that project to a close. In his farewell post, he states three fundamental beliefs about foreign policy, the first being this:

The world’s biggest single problem is the failure of people or groups to look at things from the point of view of other people or groups–i.e. to put themselves in the shoes of "the other."

I’m not talking about empathy in the sense of literally sharing people’s emotions–feeling their pain, etc. I’m just talking about the ability to comprehend and appreciate the perspective of the other. So, for Americans, that might mean grasping that if you lived in a country occupied by American troops, or visited by American drone strikes, you might not share the assumption of many Americans that these deployments of force are well-intentioned and for the greater good. You might even get bitterly resentful. You might even start hating America.

This is not just a foreign policy problem, this is the problem of our age. It’s one I’m especially sensitive to, because my conversion to Christianity was critically preceded by the sudden insight while reading C.S. Lewis’s Mere Christianity that, agree with it or not, Christianity made sense. Until then I had dismissed it as senseless, and as a result hadn’t been able to hear a thing it was trying to tell me.

Lots of other things make sense as well, regardless of whether they are right or wrong or some mixture of the two. Robert Wright is a good example, being a meticulous and irenic advocate for a point of view I mostly don’t accept (virtuous paganism). But I understand where he’s coming from, and am always edified when I hear what he has to say—as long as I hear it in the proper context.

The world would be a much different, much better place if we would all cultivate the ability to say, “I see how you might think that.”