- The Washington Times - Thursday, June 28, 2001

Responding to national concern over the lack of FBI accountability, Sens. Richard J. Durbin, Illinois Democrat, and Arlen Specter, Pennsylvania Republican, have introduced legislation that would create an independent inspector general to oversee the FBI.

The FBI has mishandled and misbehaved in a series of public scandals: Ruby Ridge, Waco, spies, crime lab evidence fabrication, withholding documents and imprisoning innocent men on false charges in order to protect "sources." These scandals have cost the FBI credibility with the public. The two senators are trying to refurbish the FBI's image with an inspector general.

In practice, inspector generals generally become part of the problem. One person cannot stand up to an entire police agency. The Justice Department, for example, has an inspector general. What was the inspector general able to do about the unprecedented scandals and cover-ups of the Reno Justice Department?

Until the Burger and Rehnquist Courts dismantled it, there was an effective oversight over the criminal justice system. It was the McNabb Doctrine. In 1943, the U.S. Supreme Court ruled that federal courts have a "supervisory power" over the administration of the federal criminal system. The purpose of this role was to deter government misconduct and to preserve judicial integrity.

The Supreme Court believed that if federal judges did not act to maintain civilized standards of procedure and evidence, they would find themselves compromised by the misbehavior of police and prosecutors.

The McNabb Doctrine arose from dissents by Justice Louis Brandeis in 1920s entrapment cases. Today, entrapment is a routine measure used by police to overfill prisons and overburden taxpayers. Indeed, the Ruby Ridge fiasco began with federal agents' entrapment of Randy Weaver.

But in the 1920s Justice Brandeis, along with most other Americans, regarded entrapment as illicit. Entrapment, said Justice Brandeis, "shock the common man's sense of decency and fair play." He predicted it would bring about the loss of public respect for the justice system.

In McNabb, the Supreme Court overturned the murder convictions of three defendants because of illegal police behavior. To allow the convictions to stand, the court reasoned, would "make the courts themselves accomplices in the willful disobedience of the law."

In declaring the supervisory power of federal judges, the Supreme Court said: "The civilized conduct of criminal trials cannot be confined within mechanical rules. It necessarily demands the authority of limited direction entrusted to the judge presiding in federal trials, including a well-established range of judicial discretion, subject to appropriate review on appeal. Such a system as ours must rely on the learning, good sense, fairness and courage of federal trial judges."

Unfortunately, as time passed liberal judges could not be content with their power to protect our civil liberties from police and prosecutors. They had to go further, abuse their judicial discretion and blame society for the criminals' crimes. This produced a reaction that has gone too far in the opposite direction.

The "law and order" era has pushed aside the McNabb Doctrine. The concern to deter government misconduct and to preserve judicial integrity has given way to punishing criminals at all costs. The "harmless error" doctrine brushes police and prosecutorial misconduct under the rug unless a convicted defendant can prove that he was convicted on the basis of the government's misconduct.

As the "harmless error" rule prevents the convicted from obtaining an evidentiary hearing and forcing open the government's hidden files, the restraint that judges exercised over police and prosecutorial misconduct in criminal cases has been erased.

Judges lost their supervisory role precisely at the time police and prosecutors ceased to give suspects a fair shake. Today, the criminal justice system is driven by career and budget needs. Closing cases and gaining convictions have become more important than getting the right man, and it is often easier to frame the innocent than to find and convict the guilty.

Consequently, wrongful convictions are on the rise. The proportion of innocent men on death row has become scandalous. When capital crimes are not carefully and conscientiously investigated and prosecuted, neither are lesser crimes.

Sens. Durbin and Specter are struggling to restore accountability to federal law enforcement, because "law and order" conservatives overreacted to liberal judges and dismantled the McNabb Doctrine. The solution is not another ineffectual bureaucratic office, but the re-empowerment of federal judges to protect us from police state practices in the criminal justice system.


Paul Craig Roberts is a columnist for The Washington Times and is nationally syndicated.

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