One very frustrating thing crim law people report is talking to other people (lawyers and non-lawyers)about the criminal justice. The perception is that dangerous criminals are getting off on technicalities. The reality is that few rights protect anyone, and innocent people are regularly convicted. (Innocent people almost always plead guilty rather than face the trial tax.) How can our criminal system, which actually protects so few, be perceived as protecting so many? Given the recent crisis of overcriminalization and the militarization of police tactics, insiders ask: Why is our criminal system be so screwed up?
An anonymous reader offers a provacative theory. He writes:
I've heard an interesting explanation for many of the awful trends in criminal law--and it strikes me as at least a partial explanation. That's the specialization of the criminal bar. Thirty or 40 years ago, most lawyers would handle a criminal matter from time to time so everyone knew what the system was like.
After specialization came about, the arguments and complaints that come from criminal defense lawyers are heavily discounted by the rest of the legal profession as "special pleading" -- of course the criminal bar is unhappy about x, y & z--it adversely affects their interests. We can thus write these complaints off. And thus do the trends worsen and deepen. I'd be curious to hear what others have to say about this notion.
This theory has an intutive appeal. When I hear that dangerous criminals are released on technicalities, I laugh. These days it's almost more likely that an innocent person will be convicted or plead guilty than a factually guily person will somehow escape prosecution. Even the best criminal defense lawyers rarely win motions to suppress evidence. When someone wins a suppression motion, it's time to celebrate. It's a special occasion.
Also true is how ignorant most people are about how our system works. At one white collar defense firm I worked at, we had a lot of law-and-order people charged under total technicalities. They were incredulous upon learning that they could be charged with a crime for an employee's conduct, even if the employee disobyed them. (If I were a federal prosecutor, I guarantee I could find a felony to charge you with. Many federal cases have very little to do with immoral conduct, but rather, involve regulatory footfalls.) They were shocked to learn that when a police officer pulls you over and begins asking you questions, he doesn't have to read you your rights, since even though you are not free to leave, you are not in custody. (Even if you're in handcuffs, you might not be in custody - how's that for a technicality!)
Anyhow, the criminal system is not what most people think it is, and I think this commentator's theory makes sense. I also like to hear what others have to say. Please leave a comment.