- The Washington Times - Wednesday, February 7, 2001

In John Ashcroft's confirmation hearings for attorney general, the United States missed a rare opportunity to remedy the disastrous decline in the truth-seeking and justice-dispensing functions of the criminal justice system.

When the administration of justice goes awry, citizens are doomed to tyranny. Americans would be shocked if they realized the tyranny that passes for American justice. Self-incrimination — banned by the Constitution — is the principle means of conviction today, accounting for 95 percent of all criminal convictions.

In the United States today, self-incrimination takes the form of a plea bargain. The defendant admits to a crime that no one committed in order to avoid being charged with more serious offenses. The defendant is sentenced without a trial. Thus, plea bargains are based on falsehoods, and the prosecutor's case receives no courtroom test before a jury.

Originally, plea bargains were rationalized as a way to clear crowded court dockets and to give the defendant a speedy resolution of charges as required by the Constitution. But plea-bargaining introduces falsehoods and extraneous motives that pervert the criminal justice system. Finding the truth and dispensing justice have become less important to prosecutors than achieving high conviction rates and justifying their budgets.

Once truth takes a backseat, a plea bargain ceases to be a way to let a criminal off lightly in exchange for a confession. Today, a plea bargain is a tool for coercion. Prosecutors force defendants to plea bargain by loading up the charges, threatening family members with expanded indictments, destroying the defendant's reputation with leaks to the media and paying other suspects with money or dropped charges to testify against the defendant.

Power corrupts. Sentencing guidelines, asset forfeiture, and the prosecutors' ability to manipulate grand juries and withhold exculpatory evidence have greatly elevated the power and lowered the ethics of prosecutors. Today prosecutors regard finding truth and serving justice as expensive paths to career failure.

The Ashcroft hearings were an opportunity to address the erosion of our legal protections and restore justice to the Justice Department. Instead, all we heard about were abortion, racism and affirmative action. It matters little to the forces of “liberal society” if innocents are convicted, unless false conviction can be portrayed as a racist act against a minority.

The left-wing critique of the justice system is that it is racist, and arrests and convicts people because they are black. This racist perspective denies that whites are also victims of injustice.

As long as the political left sees the criminal justice system as part of the “white hegemonic order that oppresses people of color,” leftists will be unable to address its real shortcomings. Leftists won't admit that whites suffer injustice, because the admission compromises their assumption of a “white hegemonic order.”

Conservatives can't face up to the failings of the criminal justice system because they fear that criticism of police and prosecutors will play into the hands of the political left. Conservatives blindly defend the criminal justice system as a bulwark of civilized society.

Consequently, neither left nor right is prepared to do anything about the prosecutorial abuses that ruin the lives of thousands of innocent Americans, rich and poor, black and white, every year.

It used to be that if an investigation turned up no evidence, charges would be dropped. Today, prosecutors feel compelled to justify the expenditure of funds on the investigation. Instead of dismissing charges, statutes are stretched beyond their meaning in order to create crimes where no criminal intent was present.

Many criminal defense lawyers are part of the problem. They have become facilitators of injustice, convincing their clients, innocent or guilty, to enter a plea instead of going to trial. Defense lawyers prefer working out a plea agreement to mounting a stiff defense in the courtroom. Attorneys feel safer negotiating with a prosecutor in a conference room than poking holes in his case in a courtroom. Defense attorneys harden themselves against wrongful convictions by rationalizing that they cut a deal that got their client a sentence of five years instead of 10.

In the United States today, punishment has been separated from guilt and is the likely fate of anyone, innocent or guilty, who has the misfortune to encounter the criminal justice system. This is the real problem. It is a problem that received no attention in the Ashcroft hearings.

Dr. Roberts' latest book, “The Tyranny of Good Intentions,” has just been released by Prima Publishers.

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