On Criminal Justice
Without law, civilization perishes.
This is a topic where I actually don’t have a drum to beat. I just find it interesting.
Why?
Because at its core, you are dealing with the good and evil of human nature, man’s ability to change, vice and virtue, self-destructive behavior, the crimes we commit which have nothing to do with the legal system, the influence of our upbringing, blind spots, our propensity to keep secrets, the judgment of others, like, all of this stuff dovetails with the usual flotsam and jetsam that floats through my mind at any given moment.
As far as modern criminal justice in America, I am occasionally reminded that I have some insight to offer as someone who has seen how the sausage is made. Perhaps this insight will allow you to become better informed on a topic where there is an incredible amount of misinformation.
I don’t know if misinformation is the right word, but you will see people confidently giving their opinion as if they know what they’re talking about when in reality they don’t. I suppose this is true of all topics.
When it comes to the criminal justice system, there are only two people you should listen to: criminal defense lawyers, and individuals who have been through the system themselves. That’s it. Friends and family don’t even really know. You have to get it straight from the man who has been under the gun. And so, as they say, I will “keep it a buck” and give you an unbiased overview.
The strange thing is that I really don’t have a strong opinion on most of it, which I guess is a sign of being well-informed—the ability to hold two opposing arguments up for inspection in one’s mind without causing cognitive dissonance—but I will walk you through how I got here.
Criminal justice and the law was never a topic I cared about, because it was not something I ever anticipated getting involved in. It’s a part of society where things are happening, but it doesn’t concern me, and I will pay it no mind as a result. I don’t think I was ever one of those callous let them all murder one another types, more just, all those people are idiots and they’re getting what they deserve, because you have to be dumb to think you can get away with a lot of this shit. That attitude didn’t change when it was my turn; just another idiot getting what he deserved. And so, I have no preconceived biases that I’m here to sell you.
When you see people who are ferociously “kill them all” on one side or “there shouldn’t be prisons” on the other side, this should be your sign that you are dealing with an ignorant and closed-minded person who runs their mouth without having done their research. I touched on this briefly in On America - when you are dealing with controversial topics that have plagued humans around the globe for thousands of years, such as crime and punishment, like, there are VERY good arguments on both sides. If there weren’t, we would’ve solved it by now. And for this specific topic, I love how Nietzsche refers to it as a science which “has not even been wrapped in swaddling-clothes yet.”
Now, when you first see a press release about someone from the government, there are two things you need to know.
One, there is a fair amount of shit on there that isn’t true.
Two, the person is guilty.
I will explain.
The government doesn’t pursue cases that they know they can’t win. They don’t prosecute and arrest someone unless they are certain they can secure a conviction. If they throw ten things at the wall, they only need one of those to stick. The other nine can be fabricated. It’s funny, because we use the term “throw the book at him” — that’s basically what they do. It feels like they reach up to the shelf, throw an entire book at you and hope that you will relent as a couple of the book’s pages stick to you. And so if you know someone that gets jammed up and he tells you he’s completely 100% innocent, he’s lying. But if he’s very vocal about the fact that portions of it are bullshit, please don’t discount it as sour grapes. People make mistakes—not just the defendant, but the prosecutor as well, and while some of the mistakes are honest, this is a dirty, dirty game and it’s full of dishonest mistakes as well.
The fucked up part is that there is zero accountability to the government if they are wrong. Prosecutorial misconduct is rife, and has done far more damage than police brutality ever will, but people just shrug this part off because they don’t see or hear about it; it takes place behind the closed doors of a courtroom. For the honest mistakes, you have to keep in mind that prosecutors are still government workers. Prosecutors are generally paid peanuts and can be handling 100 different cases at the same time. As a result, much of their work is low-quality or shoddy. This really bothered me at first until I accepted the reality of the situation, which is that everything comes down to incentives, the person doing the prosecuting is a human being, they’re fallible, they’re just showing up to work every day and trying to get a promotion, et cetera. If you don’t want to deal with being slandered and having bullshit written about you in the papers, then there’s a simple solution: don’t break the law in the first place! Cut and dry.
In terms of who gets prosecuted, the one thing I’ve seen over and over is that for every one guy that gets caught doing something, there’s thousands if not tens of thousands that got away with it. Don’t fall into the trap of “oh, they get all the bad guys” - they definitely don’t. And don’t assume that the one guy who gets caught is a horribly bad person, because he’s one of many, many people doing the same thing. There are a hell of a lot of unconvicted felons walking the streets. This guy just happens to be the one that got pilloried and nailed to the stake. The correct mental adjustment is either that the average person is a worse person than you think, that the average criminal is a better person than you think, or both—the truth, as always, lays somewhere in the middle, and the chasm is not nearly as wide as society and the media would have you believe.
Don’t believe everything you read in the tabloids or in the papers. These tend to be mouthpieces for District Attorneys. Pay close attention going forward to the sources in these kinds of articles and you’ll see it. You have to be open to the fact that there are two sides to every story, that you are only hearing one side and that having a .gov at the end of it or being a New York paper doesn’t necessarily mean it’s true. Even further, I don’t want to overly muddy the waters, but you also have to remain open to the idea that someone can enter a guilty plea for something they aren’t actually guilty of. For those who have watched the Sopranos, there was a famous scene that captures this dynamic:
—
Sal Vitro : Excuse me Tony? I've been meaning to ask you, I was wondering about the Sacrimoni place?
Tony Soprano : What about it?
Sal Vitro : Well, now that Mr. Sacrimoni is guilty, do you think that maybe I could take him off my route?
Tony Soprano : What the fuck did you just say, Sal?
Sal Vitro : [nervously] I don't know.
Silvio Dante : The fuckin’ lawnmower man just said John was guilty, T!
Tony Soprano : He PLED guilty, Sal, okay?
—
This didn’t make sense to me until I came to the same fork in the road personally. There were charges I was facing that I knew were false, I wrote up a 20-page rebuttal, sent it to counsel and said “here’s the proof.” Their response was, you are right, however, here’s the reality of the situation. We will have to enter litigation to get these charges dropped, it will likely take twelve months or more, it will cost you hundreds of thousands of dollars, the government will repeatedly subpoena everyone you have ever been close with, and while you should win, this is a system where there are no guarantees. Meanwhile, your Federal sentencing is in four months. So, do you want to roll the dice and continue living this shitty life where you’re stagnant and stuck in stasis, all for the chance of knocking off some charges that may be reputationally damaging but come with only minor financial considerations and zero additional jail time? Or do you want to just get this over with, start doing your time and get on with your life as soon as possible? And at that point, looking at the wreckage I was already surrounded by, I realized that scrutinizing my reputation any further was equivalent to rearranging deck chairs on the Titanic. This is how someone ends up pleading guilty to things they know in their heart of hearts that they didn’t do, and it happens all the time.
Next, I hate to say it, but there is no innocent until proven guilty in this country. It’s a myth, and it’s a concept which really goes beyond the legal system. Each year I have more and more friends that get “Google Bombed” for lack of a better phrase, where something nasty pops up, a lawsuit, divorce, scandal, something shameful you did, or even just a lie that someone told about you that made it into the papers. Once it hits the Internet, it’s true.
This is when your life changes.
You are no longer squeaky-clean. Job interviews, public positions, it all changes in the face of the tiniest stain as the grand game of Cover Your Ass begins. Even if everyone you talk to recognizes that it’s almost certainly bullshit, they will distance themselves from you in public, with some having the honesty behind closed doors to take the mask off and say “look, I know it’s bullshit, but it’s reputational risk to me and I have to cover my ass.” This is also when you recognize the great farce that you’ve been playing a part of, that most of your relationships were transactional in nature, and that to most people you meet, you are simply what you can do for them. When being associated with you is no longer socially beneficial, the relationship snaps like a twig and they search for another greasy pole to shimmy up. This isn’t just me talking, and I encourage you to ask anyone you know who has been Googlebombed for confirmation on these sentiments. It’s one of those things you can’t understand until you do—this could never happen to me—and until it does, you’ll refuse to take anyone else’s word for it because you’re special. You are, seriously.
Last, as far as mass incarceration, it serves one purpose—the offender is no longer on the streets. Everything else about it is questionable. Deterrence makes sense in theory, it makes less sense when you look at the empirical research backing it, and from firsthand experience, all I can say is the notion of deterrence certainly didn’t stop me. As far as reform, there isn’t any. The fact that America has the world’s highest recidivism rates—something like 70% of all offenders are back in prison within a few years—tells you all you need to know. Nothing happens in there. Nothing good, nothing bad, just nothing. You hear speculation on what prison does to someone, I’ll voice my opinion that it does nothing. Any and all reform happens at the individual level. Most people are just in there killing time, no different than the ways that people in the “free world” kill time: watching television, playing cards, gambling, drinking, smoking, arguing, fighting, man is man no matter where you put him.
The worst part of the system is how it enforces collective punishment, meaning that the offender’s family suffers just as much if not more. Most guys in prison were the breadwinner. Now you have wives and kids with no dough coming in the door, sons growing up fatherless, all of which creates more suffering and reinforces intergenerational cycles of poverty and criminal activity. Anyone with two functional brain cells quickly sees this for what it is: grossly counterproductive. You could say “well, the man should’ve thought of that before he broke the law,” but that’s wrong—you are still unfairly punishing others who have to suffer for one man’s actions, and by this measure, taking into account all the ripple effects, the damage of mass incarceration in terms of people affected is probably ten times higher than just the one man locked in a cage.
I have plenty more thoughts on the pros, the cons and how the system could be improved but I’m running up against my self-imposed word limit. If these topics are something that you’re interested in, I recommend the following two books:
Why the Innocent Plead Guilty and the Guilty Go Free: And Other Paradoxes of Our Broken Legal System — written by Jed Rakoff, who spent twenty-four years as a Federal trial judge and specialized in white-collar cases. Very even-handed, clearly informed and well-written.
Three Felonies A Day: How the Feds Target the Innocent” by Harvey Silverglate — written by Harvey Silverglate, criminal defense attorney, journalist, Harvard Law grad, enemy of prosecutorial abuse, brilliant writer, eye-opening book.
As you become more informed, I strongly believe you will arrive at the same destination I did: “Good Lord, this is way messier than I’d thought - I’m just going to keep my mouth shut on this topic going forward.”
That is how you know you are finally becoming wise.
Pede poena claudo,
GB
