Twenty Incontrovertible Truths About the American Criminal Justice System, From Someone Who Knows and Has No Interest in Lying to You About It

A Criminal Defense Attorney Tells All About the Most Misunderstood Institution in the Whole of America

1. Most criminal defendants are indeed guilty of something; due to rampant overcharging, however, many of them are not guilty of the exact crime they're being charged with. Frequently they are guilty of a less serious offense.

2. Most criminal defendants will not be incarcerated for their crimes, not because the system lacks the resources to do so, but because their offenses are insufficiently serious to warrant them being locked in a cage for any period of time.

3. Most criminal defendants who are incarcerated for their crimes will return to their communities within a matter of days or, at most, weeks.

4. Most crimes are credibly and even directly caused by one of the following circumstances: drug addiction, alcohol addiction, mental illness, homelessness, lack of education, and lack of proper parenting during childhood. On the list of factors motivating the average crime, "evil" is perhaps 127th. Police officers, defense attorneys, judges, and prosecutors all know and accept this, except when they're on television or hawking a "tell-all" book, in which case they lie to make money and enhance their career options.

5. Most police officers do not hate defense attorneys. Likewise, most prosecutors do not hate defense attorneys. Like judges, police officers and prosecutors understand that defense attorneys are an ineluctable part of the criminal justice system, and the American system of democracy would fall apart tomorrow without them. Many police officers and prosecutors even admire defense attorneys for the difficulty of the work they do, and regret inadequate understanding of the importance of that work amongst the general public. The television show Law & Order has done more to knowingly lie to the American people about defense attorneys and what they do, and about the criminal justice system and how it actually operates, than any show in the history of American television. Law & Order accurately depicts the criminal justice system in the same way Hitler actually depicts the sensibilities of the average Berlin resident in 2005.

6. Judges, in criminal cases, act almost universally in a fashion one would describe as "conservative." Reports of liberal judges "letting people off" because of rampant liberalism amongst the federal and state judiciary are grievously false, and don't, if one takes even a moment to think about it, make any sense at all, anyway. Most judges will not risk political fallout, and/or the destruction of their own professional careers, for the sake of protecting a defendant's rights--if and when there's an arguable case that they could still be considered to have "followed the law" (or even merely satisfied basic public policy concerns) by not protecting those rights. When a judge issues a "liberal" ruling, it means he is (often against his instincts) following the Constitution and/or a state statute. When he issues a "conservative" ruling, he may well be following the Constitution and/or a state statute, but it is just as likely that the decision is a thinly-veiled outcome-based election of pragmatism and public policy over settled constitutional and statutory law.

7. The nation's founding document, The Constitution, is a radical and eminently progressive document. To "follow the Constitution" in a given case is, almost always, to favor civil liberties over public policy concerns--"public policy concerns" being a bland euphemism for always favoring big government in the prosecution of individual American citizens.

8. More than 90% of criminal defendants "take responsibility for their actions" and plead guilty. Trials are rare. Well over 50% of trials arise because the government has made an unreasonably punitive plea offer to the defendant, and the defendant decides, therefore, to proceed to trial by jury in hopes of either an acquittal or simply a more reasonable sentence.

9. Prosecutors do not, as the nation has been consistently misinformed by the Law & Order series, represent the "people," or "the community," or "the citizenry." Prosecutors have one boss, and one boss only: the government (state or federal). As for the rest of the criminal justice system, it breaks down as follows: defense attorneys represent individual citizens; judges, like prosecutors, represent the government (albeit a different branch than prosecutors) as well as the impartial face of the law; and police officers represent the letter of the law, whether that law is favored by, or beneficial to, the community it acts upon or not. The only place the "people" are represented in the criminal justice system is in the institution of the jury.

10. Generally speaking, prosecutors are apt to favor trial-by-judge, and defense attorneys are apt to favor trial-by-jury. Defense attorneys prefer juries because most American juries do not view criminal cases the way prosecutors do, when they are--often for the first time in their lives--presented with the reality of what a criminal case actually looks and sounds like.

11. Generally speaking, the more serious the crime, the lower the recidivism rate.

12. Violent crimes are rare. Stranger-on-stranger violent crimes are obscenely rare. Most violent crimes occur between persons who know one another. Most crimes, generally, are either "property" or "drug-related" crimes. Most "property" crimes should actually be considered "drug-related" crimes, too, as the number one reason Americans steal from, burglarize, or rob other Americans is to get money for drugs.

13. "Getting rich" is the 127th most likely motivation for stealing from, burglarizing, or robbing another American. Nobody gets rich off property crimes, except a) in the movies, b) amongst the white-collar set, or c) in the rare instance of a serial bank robber, the sort of "career criminal" (a criminal whose primary source of income is crime) so blessedly rare in America he's become the only sort of criminal Hollywood has cared to write about for the last seventy-five years (cf. The Godfather, Goodfellas, Pulp Fiction, et. al.). Crack addicts make for bad cinema.

14. Defense attorneys want to see the crime rate reduced as much as everyone else does. Defense attorneys do not defend accused criminals because they enjoy, admire, wish to encourage, or appreciate high crime rates--or criminals. Most do so, instead, because they believe the adversarial system of justice is the best truth-seeking mechanism ever created by human beings. And also, because they see defending the despised and/or down-trodden--one of the least popular forms of employment in the United States, despite our self-reporting as a charitable Christian nation--as a form of public service. Public defenders, particularly, often become public defenders for the same reason police officers become police officers: to serve their communities in a manner most political pundits and other assorted "talking heads" would never consider doing in their lifetimes, either because it's too dangerous, too difficult, too depressing, or (over all else) too poorly compensated.

15. To say that most criminals are Democrats is to say that most trees would choose to be pines if they but had the choice. The fact is, criminals are, as a class, shockingly apolitical, don't vote, and don't know shit about politics even when they do vote. Not surprisingly, most criminals are poorly educated. Everyone knows that better public education is the best way to reduce crime rates, which is precisely why those politicians who make a living on banal, ineffective "tough-on-crime" bullshit are adamantly opposed to doing anything to improve public education.

16. Most criminals are white.

17. Most criminals are men, though women are less frequently charged with crimes than their actual rate of criminal activity would suggest should be the case. Men will often get arrested for behavior a police officer would not arrest a woman for.

18. Most police officers are honest and do the best job they possibly can. Typically, it is the court system--lawyers on both sides, and on the bench--which does a poor job of instructing police officers in how best to follow the Constitution on the beat. Of course, it is also true that being a police officer can be a stunningly difficult job: many times police officers make mistakes simply because they have been called upon to make good decisions under the worst of all possible conditions.

19. Drug addicts are immune to deterrence theory, as are most serious violent criminals, such as rapists and murderers, and those who (a larger group than you might think) commit their crimes because of a lack of education or persistent poverty. Those who believe stiff sentences alone will reduce crime are morons who have never been within two hundred yards of an American courthouse. Those who believe that local jails--where the vast majority of incarcerated defendants are warehoused--and state/federal prisons should do more to brutalize inmates are favoring a course of action which makes Americans markedly less safe. A brutalized inmate is more likely to re-engage in sociopathic behavior upon his or her release from incarceration (cf. Truth #3, above: "Most criminal defendants who are incarcerated for their crimes will return to their communities within a matter of days or, at most, weeks").

20. If wealthy communities were policed in the same manner poor communities are presently policed--that is, if the criminal code, at both the arrest and prosecution stages, was applied equally against the wealthy as against the poor in this country--50% of criminal statutes nationwide would be appealed, repealed, or dramatically amended within a year's time.