Editorial: Go Back to Law School 2/9/01

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David Borden, Executive Director, [email protected]

There are a few basic concepts that were intended to lie at the foundation of the US criminal justice system. One of them is the idea that a defendant -- any defendant -- is considered innocent until proven and found guilty in a court of law. If they aren't found guilty, or if their cases are thrown out and never come to trial, then in the eyes of the law, they are not guilty, they are not criminals, period. Observers can believe what they choose -- and it's true that a not guilty verdict doesn't automatically constitute proof of actual innocence -- but in the eyes of the law, they are innocent, just as if no arrest was ever made or charge brought or trial held.

Another one of the fundamental principles is the idea of an adversarial system made up of two equally powerful advocates -- the prosecution and the defense -- with a neutral third party, the judge, as referee to secure true and impartial justice, not tainted by the goals, ambitions, or biases of either of the two adversarial sides -- and in the end, if handed a finding of guilty, to examine the individual circumstances of a case and a defendant and to hand down the sentence that is most just. Not that it happens this way every time, of course, but that's the goal, and that goal is reflected in the structure with which the system was originally designed.

Our nation's legal officers, be they judges, prosecutors, defense attorneys or other, are supposed to have learned and internalized these ideas long before they step up to service in the courts. They learn these ideas in law school. Actually, we're all supposed to understand them; we learn them in high school civics classes. Maybe before that. I learned about it, anyway. Most of my friends seem to understand it, too.

Somehow, though, certain top prosecutors don't seem to have this basic understanding, or have set it aside. I'm referring to people mentioned in this issue of our newsletter.

One of them is Queens, NY District Attorney Richard Brown. Though a judge himself for 16 years, he nevertheless argued, in opposing any changes to the state's draconian Rockefeller Drug Laws, that "prosecutors are in the best position to make independent judgments." Judges "have enormous calendars, they have cases to try," he wrote, "the pressure they have is to try to get people into treatment."

Brown was referring to the fact that under the current state law, which is essentially a form of mandatory minimum sentencing, the prosecutor in effect winds up deciding what a given defendant's sentence should be, assuming the jury finds the defendant guilty -- because it is prosecutors who decide what sentence to bring, and when the sentence is pre-determinate, the judge has little or no latitude to change it. Giving discretion back to judges, which repeal and perhaps reforming the Rockefeller laws would do, would shift that power back to the judges, and the prosecutors would lose that power.

But that's the way our system of justice was always intended to work. The judge is the most neutral party in the system. The prosecutor is an advocate for conviction, and in many cases for the harsher, or harshest punishments -- unfortunately, it seems to be built into the culture of the profession, though that's not the way things are supposed to work either -- and so a prosecutor will often initiate a case with a bias toward longer sentences. Hence, the system was designed to have the judge, who is not an advocate, but sits in between and hears both sides, make the final pronouncement of a defendant's fate. Mandatory minimum sentencing has warped that system, but the principle itself has never been repudiated by our society, and it is a good one.

DA Brown evidently doesn't understand this most basic principle of justice, or is unwilling to accept it. He should go back to law school, because we need our officers of the court to understand and honor those basics.

The other one is New Jersey's Attorney General, James Farmer. Farmer was forced to dismiss cases against 128 defendants because of evidence of racial profiling by New Jersey police. It's good that he did this, but what he said about it is unacceptable. "Let's be clear," Farmer wrote, "the defendants in these cases may have prevailed in their motions to suppress, but they are criminals nonetheless."

But in a system where defendants are considered innocent until proven guilty, they are not criminals. No guilty charge was found, perhaps no trial was ever held. Individual members of the public are free to hold whatever opinion they wish regarding whether or not these 128 defendants did in fact possess or distribute illegal drugs or commit other offenses -- though thoughtful observers would most properly have to say they don't know. But in the eyes of the law, those defendants are innocent, and that understanding is binding upon those who in their official capacities represent the law and its power.

For the Attorney General of a state, then, to brand 128 people whom the law considers innocent, as "criminals," is to ignore the most basic principle of our justice system, and is a form of misconduct that may be tantamount to slander. AG Farmer, then, should also return to law school and improve his knowledge of the principles underlying our legal system, and of his own responsibilities within that system.

Why are top cops acting and speaking in defiance of the most basic principles of justice, enshrined since the founding of our country? Perhaps it is the drug war, forcing a degradation of ethics and standards by its very nature, warping the criminal justice system and forcing that system's enforcers into mental contortions to defend it.

All the more reason not to leave ultimate sentencing discretion in the hands of government prosecutors, but to repeal all mandatory minimum laws and return that power to judges where it belongs.

-- END --
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Issue #172, 2/9/01 New York: District Attorneys Mount Opposition to Rockefeller Reforms | New Jersey to Pay Out $12.90 Million to Victims in Racial Profiling Shooting, Attorney General Dismisses More Drug Cases | San Francisco Ecstasy Conference Generates Heat but Also Light | DEA Posts Funny Numbers in its "Operation Libertador" Bust | NarcoNews on Key Moves in Venezuela, Legal Fundraising Appeal | Britain: Medical Marijuana Research Gets Underway, Legislation Stalled in Parliament | Study Deals New Blow to Gateway Theory | Miscellania | The Reformer's Calendar | Editorial: Go Back to Law School

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