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Criminal injustice: the flaws and fallacies of the American justice system.

Article Excerpt
DESPITE OUR FALTERING NATIONAL OUTPUT IN other areas, "the United States," the New York Times notes mordantly, "leads the world in producing prisoners." At year-end 2007, about 2.3 million Americans were incarcerated in federal and state prisons and local lock-ups; the figure represented another annual increase in an ongoing series. With just 5% of the total global population, the U.S. warehouses an estimated 25% of the world's prison population. By comparison, China--notwithstanding its totalitarian rule and a demonstrated willingness to ignore the basic human rights of its 1.3 billion citizens--keeps just 1.6 million people (1.2%) under lock and key (versus America's 7.6%). "We not only have more people in prison per capita than anyone else in the world," says celebrated defense attorney Gerry Spence, "but we have more black people in the penitentiary than in college."

That America incarcerates a sizable contingent of its citizenry is one of two points in this overall subject area on which all can agree. The other is that the criminal justice system doesn't work as well as it should. But that's where the consensus breaks down, as inveterate hardliners square off against sell-styled reformers, the former decrying "bleeding-heart justice," the latter yearning for "punitive restraint"--almost all of them missing the bigger picture.

We frame debate over American jurisprudence in terms of a handful of well-worn cliches: institutional racism, cruel-and-unusual punishment, overzealous prosecution of so-called victimless crimes, the nation's expanding war on "thought crime." While these topics are worthy of discussion, to focus on them is to appraise a macro problem in micro terms. There are far deeper and more fundamental questions about our criminal-justice system and the assumptions on which it rests: questions about whether we're punishing the right people for the right reasons, and even what constitutes a crime in the lust place.

Consider that still in 2009, America dispenses justice according to a Judeo-Christian hierarchy of crime and punishment that has remained largely unchanged for several millennia. Punishment bespeaks simplistic notions of good and evil, such as an eye for an eye, that may be unsuited to a world where abuses of power--including white-collar crime and official malfeasance--can have an apocalyptic reach and impact.

Item: Enron was once the nation's seventh-largest company (2000 revenues: $100 billion) and, at least on paper, one of the most profitable. With the cooperation of the firm's auditors, the now-defunct Arthur Andersen LLC, top corporate brass ran the company with a disregard for integrity and fair play that's rare even among major corporate crooks. Enron's spectacular unraveling cost 20,000 employees their pensions, college funds and/or life savings, and devastated thousands more John Q. Publics who were heavily invested. The ripple effect spread throughout the energy sector and the economy as a whole, initiating a "crisis of confidence" that, to some degree, remains with us today.

Item: At the height of the crisis on Wall Street in September 2008, New York Attorney General Andrew Cuomo bristled at rumors that "short sellers"--whose contrarian stock positions anticipate a sinking market--were adding fuel to the fire by diabolically (and illegally) spreading misinformation that made the crisis sound even more dire than mainstream reposing would have suggested.

Cannot white-collar/financial crime of such disruptive magnitude be construed as a far greater offense against the social contract than any single crime against the person, up to and including homicide?

"I would agree that corporate crime has a much wider impact," says Spence, who bars corporate attorneys from his famed Trial Lawyers College because, he explains, "I don't want to help them be better at preventing the average citizen from getting justice."

One might expect that stance from Spence, who came to prominence in 1979 by winning a seven-figure civil judgment on behalf of Karen Silkwood's heirs (Silkwood was a union activist who died under mysterious circumstances while working at a nuclear plant in Oklahoma).But there's at least qualified agreement from some surprising sources. "You raise a good point," says Jeffrey Modisett, former attorney general of Indiana and now a Los Angeles attorney specializing in pretrial mediation. "Should we do more to consider the quantity of the crime as much as the quality--the breadth as well as the depth?"

As an "interesting example," Modisett cites Bernard Madoff, the Wall Street financier who's accused of bilking several thousand clients out of an aggregate $50 billion, wiping out some investors entirely. "That has already led to two or three suicides and absolutely mined the lives of a large number of people," observes Modisett. "I recall that when the late Paul Tsongas ran for president [Tsongas unsuccessfully sought the Democratic nomination in 1992], he wrote a little blueprint where he was against the death penalty in general--he didn't believe in it for murder--but he could see a death penalty for crimes against society. If he were still alive, you might ask him, 'Would you include a Bernie Madoff in that?'"

Similarly, in removing Governor Rod Blagojevich from office, the Illinois legislature imposed what it called its "political death penalty," barring Blagojevich from holding state office forevermore. The ominous phrase clearly recognizes the extremity of the deposed governor's offenses, leading one to wonder if a more literal fate might not be inappropriate for a man found guilty of so egregiously violating the public trust. At a time like this, what could have a more corrosive effect on the social fabric than a...

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