November 21, 2012
In addition to Black’s understand-able desire to set the record straight in his own case, the book has the more important public object of exposing the faults in the American judicial system, which make such a miscarriage possible. I had for some years been worried about the deterioration in the American process of criminal law, and I am gratified, and also profoundly disturbed, to find my misgivings confirmed by this account. The process of decay seems to have begun in the 1970s, but it has reached the point where it now constitutes the most radical weakness in the entire American system and one which must be addressed as a matter of urgency.
The fault can be summed up in a sentence: America’s criminal courts now insist on convictions at the expense of any other consideration, above all of justice. They are more like a court martial than a civilian establishment of law. The presumption of innocence has been abandoned. . . .
The assumption of guilt is sanctified in law by the grotesquely unjust plea-bargaining process, which saves the accused from total financial ruin by forcing him to plead guilty to some of the crimes with which he is charged, however innocent he or she may be. Plea-bargaining in turn leads to a multiplicity of indictments by prosecutors, which adds a judicial to the financial compulsion of the innocent to bargain.
Hence the American prosecution practices are what the law calls ‘a derogation from honest service’. The US prosecution service, in heedless pursuit of convictions, does what it wants and prosecutes whoever it wishes for as long as it likes. Thus, over 90 per cent of prosecutions are successful, a higher proportion than in either Putin’s Russia or Communist China. America, as Black puts it, has become a ‘prosecut-ocracy’.
Yes, I really need to get around to writing my Due Process When Everything Is A Crime piece, which has been germinating for quite a while. However, there’s Harvey Silverglate’s Three Felonies A Day, Gene Healy’s Go Directly To Jail: The Criminalization of Nearly Everything, and Angela Davis’s (no, not that Angela Davis), Arbitrary Justice: The Power Of The American Prosecutor. All are worth reading.