Thursday, September 19, 2002


We have come a long way from the days of yore and gore when the convicted were drawn and quartered or burnt at the stake or subjected to other horrors, often as part of a spectacle conducted before mobs comprised of ordinary folks. Criminal justice is now more genteel, more attuned to procedural rights that protect the accused. But criminal justice is never a pretty affair. Its aim is punishment, a goal that is unfortunately necessary to maintain civil society but also a goal that can give nourishment to base instincts.

For all of the trappings of law, there is much that is amiss in contemporary criminal justice. Prosecutors have too much power and like everywhere else, power is corrupting. While for understandable reasons the focus is usually on capital cases where persons have been wrongfully convicted and even executed, the incidence of wrongful convictions is far more prevalent in lesser cases than many of us recognize. From the FBI down there are credible reports of doctored evidence, as well as evidence of prosecutors withholding information that might cast doubt on what they want juries to believe.

An instinct for cruelty enters at times into the workings of criminal justice, affecting prosecutors, as well as the media and the public. The promotion of spectacle that accompanies important cases is a manifestation of this instinct. There is an obligation to resist the temptation to add to the punishment and pain of those who are accused of wrongdoing. Sadly, it is common to yield to the desire to be bloodthirsty.

A good example is what has become known as the “perp walk,” the practice of parading manacled persons accused of crimes before the cameras, the only purpose of which is to get publicity for prosecutors and to inflict more pain on the accused and their families. The term is offensive to the ideal of justice since those who are paraded have been accused but not convicted. But why worry about such things in a period when prosecutors act like judges and juries and the media inflame the public?

Added to questionable standard operating procedures in high-profile cases is the ugly practice of rousing the accused very early in the morning – of course, after the press, our guardians of liberty, have been alerted – and all the better if this can be done in front of children and spouses. It’s good to be cruel so long as it’s all in the pursuit of justice.

We have come a long way from the gore of yesterday, but those deprecations were visited on persons who somehow were convicted, while ours are now reserved for those who have been accused and not yet convicted.

While many have contributed to the descent into sadism that characterizes the new criminal justice, top honors toward the institutionalization of cruelty go to Rudy Giuliani who as U.S. Attorney in Manhattan reveled in exacting an extra measure of pain, at times from persons who were not guilty. Mary Jo White, lately of the same office, added to the trend. Her colors were on display in a late August interview buried in the Business section of the Sunday Times. Asked, “Why make a public spectacle of the arrest of a non-violent executive,” a reference to the arrest of John J. Rigas, aged 78 and ailing, of Adelphia Communications and his sons after they offered to turn themselves in, she replied:

“It’s obviously to send a strong message that the government is serious and acting vigorously, to deter other corporate executives. It’s done dramatically in part to restore investor confidence. It certainly catches people’s attention in the right places, from the prosecutor’s point of view.”

Similar humane wisdom provided an answer to another question: “The early hour of the arrests seems gratuitous. Is there a reason for the timing?” We’ve reached the brave new world of the accused being guilty until being proven innocent.

Much of what is wrong arises from the adversary nature of our legal system. Prosecutors represent one side in a case and like lawyers generally they are likely to claim too much. We might wish to see restraint from those who are sworn to uphold the Constitution; in fact, there are prosecutors who show restraint. Unfortunately, their ranks are thinning, as the world of prosecutors has become enveloped in a subculture where spectacle is regarded as appropriate and where gratuitous pain evokes approval rather than criticism. Pain is inflicted for pain’s sake, which is the definition of sadism. We are expected to welcome this development and why not since few judges are willing to rein in our Inspector Javerts.

Prosecutors who seek to transform their cases into circuses of cruelty are aided and abetted by the media who readily accept the most sordid accusations as the whole truth. In their desire to gain audience share, the media take pleasure in inflicting pain via headlines that are like pointed daggers. Little and decreasing concern is shown for the rights of the accused. We have had the sickening feeding frenzy directed at Martha Stewart. In their excesses, the media as always hide behind the First Amendment to justify their sins.

Of course, Ms. Stewart and other newly certified public enemies who are now being subjected to humiliation were themselves essentially the product of media hype. In this age of celebrityship, there are benefits to be reaped from idolizing the rich and famous and there are benefits to be reaped from tormenting them. It’s all for the bottom line.

Or to revise and perhaps improve the old apothegm: “Those whom the Gods would destroy they first made famous.”