CRIMINALLY UNJUST

It's no coincidence that declining support for capital punishment has been
accompanied by increased mistrust of law enforcement and discomfort with
the war on drugs.

A relative lull in violent crime during the 1990s contributed to a
reconsideration of harsh police practices and prosecutorial tactics. But
many people are willing to tolerate bad policing so long as it's directed
at bad guys. Few complain when guilty suspects are deprived of their rights
and coerced confessions prove true. It's the abuse of innocent people or
those guilty only of minor, nonviolent offenses that has prompted some
tentative public review of the current regime.

It's not just the use of DNA evidence to exonerate the wrongly convicted
that has aroused concern about criminal justice.

The bias and bloodthirst in law enforcement have simply become unseemly.

During the past several years, racial profiling became impossible to
ignore; even conservatives like Vice President Dick Cheney and Senator
Joseph Lieberman belatedly condemned it. The awful misdeeds and mistakes of
FBI agents--from the attacks at Ruby Ridge, Idaho, and Waco, Texas, to the
framing of Bostonian Joseph Salvati, who spent 30 years in prison for
someone else's crime--made the nation's premier law enforcement agency look
like public enemy number one. Confronted with the sheer meanness of their
government--its continued imprisonment of nonviolent drug offenders, a
gratuitously cruel campaign against the medical use of marijuana, and the
expansion of the drug war to public schools, where students are treated
like suspects and randomly tested for drugs--people are apt to rediscover
traditional American values, like fairness and respect for individuals.

On occasion, the press has collaborated with the law enforcement system in
trampling people's rights: Irresponsible reporting by The New York Times
was partly to blame for the federal government's wrongful prosecution of
Wen Ho Lee, the scientist at the nuclear lab in Los Alamos, New Mexico, who
was charged with espionage.

Similarly, right-wing media partnered with Kenneth Starr in his fanatical
pursuit of Bill Clinton. But the press has also helped expose law
enforcement's crimes, which have been supported or ignored by politicians
of both major parties.

Stories about thuggish cops and prosecutors and about ordinary citizens
spending years in prison for minor drug offenses are hard to resist.

These days, the press seems to be paying particular attention to the
trashing of defendants' rights by officials who are paid to protect them.

"Suspects' False Confessions Ignite Interrogation Debate," a recent Miami
Herald headline proclaimed in a story about a mentally retarded man
wrongfully imprisoned for 22 years thanks to a false, coerced confession.
According to a recent series in The Washington Post, police in Prince
George's County, Maryland, routinely coerce confessions--interrogating
suspects for days at a time in isolation, terrorizing them, and illegally
depriving them of counsel and sleep.

Honest, skeptical prosecutors or DNA evidence can free some people who are
wrongly imprisoned by cops who don't distinguish between innocence and
guilt in their zeal to clear cases. (The Post examined four instances in
which people forced to confess were exonerated.)

But prosecutors are not always honest or alert, and DNA evidence is not
always available.

Defendants are sometimes convicted on the basis of highly questionable
confessions. And often, in the absence of videotaping, challenges to the
legality of an interrogation and the truth of a confession involve the
conflicting testimony of defendants and police.

Guess who judges generally believe.

Die-hard defenders of the bureaucracy assert that a few bad cops don't
indict an entire system.

As defense attorneys will attest, however, the abusive tactics used in
Prince George's County and the targeting of people whose guilt is not
supported by evidence are not anomalous.

Of course, many law enforcement officials are competent, energetic, and
honorable; but some are not. After all, virtually no one in the system is
surprised when police officers perjure themselves on the witness stand.
(There's even a name for police perjury: "testilying.")

These injustices are compounded by the inadequate representation of poor
people who are prosecuted for serious crimes.

This past April, a New York Times series chronicled the failings of the
indigent-defense system in New York City. The Legal Aid Society (my former
employer), which describes itself as "the nation's oldest and largest
provider of legal services to the indigent," has been crippled by Mayor
Rudolph Giuliani's budget cuts. According to the Times, Legal Aid's
caseloads and resources have been drastically reduced: Its lawyers now
handle only 50 percent of all felony and misdemeanor cases each year. A few
small defense organizations take on an additional 18 percent.

The rest of the cases are turned over to private attorneys, who are often
inexperienced, underpaid, and unsupervised. (When I worked for Legal Aid,
the court-appointed lawyers were guys in shiny suits.) According to the
Times, many of these appointed attorneys don't investigate the crimes with
which their clients are charged, don't visit the scenes, and don't hire
expert witnesses, psychiatrists, or pathologists. Many don't visit their
clients in prison or interview them in private.

Some don't know the rules of evidence.

The Times interviewed several important players in New York's justice
system--including its chief judge and the state's director of criminal
justice--who confirmed the awful failings of indigent defense.

Readers were presented with stories about people wrongfully imprisoned
thanks partly to bad lawyering.

Still, some observers were unimpressed. In Slate, Mickey Kaus expressed
skepticism about the harms caused by bad lawyers--as if he'd ever agree to
be represented by one. I doubt that many pundits would question the dangers
posed by untrained physicians who treat gravely ill patients without
actually examining them; but the average pundit is more likely to identify
with a sick person than with a suspect in a homicide.

When people start identifying with the victims of law enforcement, they
stop accepting its systematic abuses.

Laws against medicinal marijuana are vulnerable because their targets
include respectable citizens.

So if we want to rein in bad cops and bad laws, we might first unleash them
on the white middle class.

Imagine the political consequences of subjecting affluent whites to the
same degree of police surveillance and abuse that poor blacks and Latinos
endure.

The war on drugs is a war on minorities, partly because police pay
relatively little attention to drug-law violations by whites. Nearly 70
percent of people in prison are blacks and Latinos, who together constitute
about 25 percent of the nation's population. Prison conditions would
improve dramatically if statistics like these were reversed.

We would also witness huge improvements in crime control if police and
prosecutors were held accountable for misconduct. Criminal justice abuses
are threats to the public safety as well as to individual rights.

When the innocent are persecuted, the guilty roam free.

Wendy Kaminer