Ain't Nobody's Business If You Do

PART II: WHY LAWS AGAINST CONSENSUAL ACTIVITIES ARE NOT A GOOD IDEA

THE COPS CAN'T CATCH 'EM; THE COURTS CAN'T HANDLE 'EM; THE PRISONS CAN'T HOLD 'EM


There are not enough jails,
not enough policemen,
not enough courts to enforce a law
not supported by the people.
HUBERT H. HUMPHREY

THE MORE THAN 4,000,000 arrests made each year for consensual crimes aren't even the tip of the iceberg; they're more like the ice cube of the tip of the iceberg.

When you consider the ubiquity of the drug trade, and all the prostitutes paid, bets made, illicit sex bade, loiterers in the shade, vagrants on parade, and transvestites in masquerade, it's easy to see that the cops can't catch 'em, the courts can't handle 'em, and the prisons can't hold 'em.

To give one obvious example: In 1994, fewer than 15 million people were arrested for all crimes in the United States. In that same year, according to the Department of Health and Human Services, almost 26 million people illegally used drugs. The criminal justice system was burdened beyond capacity with the 15 million arrests (1.35 million of which were drug arrests). Can you imagine what would have happened if they had added 25 million more drug arrests? And that's just drugs.

When it comes to consensual crimes, the term criminal justice is an oxymoron. There's no justice because they're not criminals. As we explored in the chapter, "Enforcing Laws against Consensual Activities Destroys People's Lives," putting consensual criminals into a system designed for real criminals has significant detrimental effects on the former.


Concepts of justice
must have hands and feet
or they remain sterile abstractions.
The hands and feet we need
are efficient means and methods
to carry out justice in every case
in the shortest possible time
and at the lowest possible cost.
JUSTICE WARREN E. BURGER
It also has detrimental effects on the system itself. Avowed to treating all criminals alike (the woman holding the scales of justice is blindfolded), the courts, when they become overcrowded, treat all criminals a little bit easier.
The scales of justice are a delicate balance. We may be able to add more jail cells by spending more money, but an effective court takes more than just an additional wing on the courthouse. Good judges take decades of seasoning. Around each judge must be assembled a support system of court clerks, legal researchers, court reporters, bailiffs, and other individuals.
In our courts we seek the highest wisdom—the guidance of intelligence and maturity. Overcrowding the court system with consensual noncriminals keeps the bad judges in place, encourages incompetent lawyers to become judges, and prevents the truly good judges from doing their best.
As Legal Times accurately predicted in 1989,

Before long the judiciary could become just another bureaucracy, with thousands of judges and magistrates processing dreary caseloads likely to attract only hacks and drones to the bench.

The courts can be corrupted at any of four levels: prosecutors, judges, juries, or witnesses. The techniques of corruption include threats of violence, blackmail, and bribery.
The sophisticated will, of course, remember this exchange from The Addams Family:

GOMEZ ADDAMS: I've gone through the city ordinances, the Bill of Rights, and the seventeen volumes of assorted jurisprudence—and I've come to a conclusion.

MORTICIA ADDAMS: What?

GOMEZ: That we haven't got a leg to stand on.

UNCLE FESTER: Not even if we bribe the judge?


Judges . . . rule on the basis of law,
not public opinion,
and they should be totally
indifferent to pressures
of the times.
JUSTICE WARREN E. BURGER

The jury is as susceptible as its twelve members. With enough investigation money (and the perpetrators of organized consensual crimes have plenty of that), the defense can know by the first day of the trial almost everything there is to know about each juror. Which would be most susceptible to a threat, a bribe, or a little blackmail? Except in rare cases, the jurors go home after court adjourns and can easily be contacted. One or two highly motivated jury members can often create enough reasonable doubts (and juries in criminal cases are instructed to reach their conclusion of guilt beyond a reasonable doubt) in the minds of the other jurors to bring in a verdict of not guilty. At worst, it only takes one member of a jury to withhold his or her guilty vote for there to be a hung jury. After a hung jury, the prosecutor is usually more than willing to enter into passionate plea bargaining: the concept of retrying the same case from scratch (which is what must happen with a hung jury) is, at best, disheartening. After a second or third hung jury, the case might be dropped entirely. Bribing or threatening jurors is such a common practice that it's known by the relatively trivial phrase jury tampering, which in no way conveys the seriousness or the significance of the crime.

Finally, there are witnesses. Far from the melodramatic courtroom myth, the last-minute "secret witness" almost never appears. (In courtroom dramas, whenever a surprise witness is introduced, the judge invariably proclaims, "This is highly irregular!") By law, the witnesses each side plans to call to the stand must be presented to the other side some time before the trial. Thus witnesses, like jurors, judges, and prosecutors, are open to pretrial persuasion. Many trials are never brought to court because someone "gets to" the main witness for the prosecution, who "suddenly remembers" a different set of facts.


ALEX REIGER:  Louie, when
you walk into that hearing room,
you're going to be under oath.
You know what that means?

LOUIE DE PALMA: Yeah.
It means they gotta believe you.
I love this country.
TAXI

And then there are witnesses who are paid to bear false witness. Their payment may be in the form of money, drugs, or favors; or they may simply be blackmailed. These people will claim that the defendant couldn't possibly have been at the scene of the crime because they were all spending the weekend together in Wyoming—fishing by day and reading the Bible aloud at night. False witnesses can also be used to impugn the credibility of otherwise credible witnesses.

When you combine the delicate balance of the criminal justice system with the large amounts of money made by the peddlers of consensual crimes (especially drugs and gambling), the potential for corruption is high and all too often realized. The big players with the big money tend to get off, while the little players with little money tend to get big sentences. In this way, defenders of the criminal justice system can say, "See, we're doing so much about drugs (or whatever the consensual crime may be). Our conviction rate is up and the sentences are stiffer."

In courts that aren't corrupt, the massive overloading caused by the burden of processing consensual criminals as though they were real criminals creates, at best, a system with enough loopholes for plenty of real criminals (especially the ones who can afford the best lawyers) to go free.

This editorial from the Los Angeles Times, April 25, 1993:

Two more senior federal judges recently joined a growing list of their colleagues nationwide in refusing to preside over drug cases as a protest to the extreme and counter-productive sentences they are required to impose in these cases. We are sympathetic with their distress. Tough, inflexible federal sentencing rules, once considered "the answer" to rising drug use and crime, threaten to make a mockery of our federal criminal justice system. . . .

A young offender convicted of first-time possession of $50 worth of drugs might be sentenced to a 20-year prison term or even a life term without the possibility of parole. . . .

Nearly 60% of all federal prisoners are now drug felons. Average prison terms for federal drug offenders have shot up 22% since 1986—while those of violent criminals fell by 30%. . . .

Congress has been unwilling to amend the Draconian sentencing law for fear of seeming "soft on crime." But the protests of these respected judges, along with the private rumblings of hundreds more across the country, must signal Congress that the law is unfair and unworkable.


Efforts to combat this tidal wave
of [violent] crime
are continually frustrated
by a criminal justice system
that is little more
than a revolving door.
SENATOR ALFONSE D'AMATO

The solution? Obviously, stop pretending that consensual activities are crimes. This would stop most organized crime—with its threats, blackmail, and bribery—overnight. Ending multi-prohibitions would immediately cut the workload of the criminal justice system in half. This would give the courts time to decide the guilt or innocence of people accused of crimes such as murder, rape, robbery, aggravated assault, burglary, larceny, theft, motor vehicle theft, arson, hate crimes, forgery, counterfeiting, fraud, embezzlement, buying and selling stolen property, vandalism, carrying concealed weapons, child molestation, and driving under the influence of alcohol or other intoxicating substances.


Of all the tasks of government,
the most basic is to protect
its citizens from violence.
JOHN FOSTER DULLES
Prisons, as previously noted, are filled to capacity and beyond. In most areas an early-release program has been instituted, which, of course, does not differentiate between prisoners whose crimes had innocent victims and prisoners whose crimes did not. This puts truly dangerous criminals on the street sooner, giving them extra months—and in some cases years—to rape, rob, and plunder anew.

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