Can Justice Be Mass-Produced? : ROUGH JUSTICE Days and Nights of a Young D.A. <i> by David Heilbroner (Pantheon Books: $19.95; 280 pp.; 0-394-58191-1) </i>

David Heilbroner’s vivid account of his three years as an assistant district attorney in Manhattan should be compulsory reading for every politician whose answer to crime is more jails and longer sentences. The criminal-law system revealed here is an insatiable bureaucracy whose single goal is to “keep the cases moving” without much regard to notions of justice. In this system, which Heilbroner calls “assembly-line litigation,” the gravity of a crime is measured, ultimately, by what it’s worth in a plea bargain rather than by the degree to which it offends the social contract.

In “Rough Justice,” Heilbroner shows how he attempted to obey the bureaucratic imperative without becoming a bureaucrat. Tellingly, after three years, he resigned.

Heilbroner, whose father is a professor and whose mother writes children’s books, seems an unlikely prosecutor. He had been attracted to the job of district attorney because he thought it would satisfy his curiosity about the “dark world of criminal law” while putting his law degree to a socially useful purpose. And he had been encouraged by his first mentor at the office, who told new recruits that they had not been hired merely to “win cases and seek the maximum penalty” but to “do justice.”

There is nothing more seductive to a freshly coined lawyer than that siren song; doing justice, after all, is the ratio decidendi of the profession. In theory, prosecutors, with their significant discretionary powers, actually may be in a position to carry out the collective fantasy. As Heilbroner points out, it is the prosecutor who decides whether to file a case or seek a grand-jury indictment, whether to reduce a charge or even dismiss a weak case in the interests of justice. While a defense attorney has but a single client to represent, the prosecutor, as attorney for the People, represents the system itself--the system by which justice, however imperfectly, must be dispensed.

Yet, as Heilbroner soon learned, in practice the prosecutor’s discretionary powers are circumscribed by both political and bureaucratic necessity. For instance, district attorneys are sometimes compelled to crack down on relatively minor criminal activity in response to constituent complaints--witness the prostitution sweeps in Hollywood a few years back. Inevitably, the effect of such a hard line is to clog up court calendars with marginal cases that would otherwise have been rejected at filing or reduced. More often, it’s simply the need to keep the cases moving that sets the limits on the exercise of discretion.

With so many cases, only a few can be considered thoughtfully and only a tiny fraction can make it to trial. The system’s solution? Squeeze dazed pleas of guilty from unsophisticated criminal defendants, a process that left Heilbroner “sick at heart.”

Heilbroner also was disillusioned by his relationship with the police. Although the police are indispensable to the prosecution, police officers and prosecutors make an uneasy team because each suspects the other may be subtly selling his teammate out. Police officers complain that prosecutors engage in legal hair-splitting when they reject meritorious cases or reduce or even dismiss others. Prosecutors, in turn, may come to believe (as did Heilbroner) that the police routinely violate proscriptions against illegal searches and seizures and then lie about the violations in order to secure filings and convictions.

Clearly, the two sides are operating under different notions of justice, making clashes both inevitable and rancorous. Heilbroner was sufficiently upset by his experience with what he sees as police duplicity that he advocates fining and ultimately prosecuting officers who engage in illegal searches, seizures and arrests. What the police thought about him is not recorded.

Heilbroner is equally dubious about another of the system’s sacred cows, the insanity defense. Under the M’Naughten Rule, first set forth in the mid-19th Century, a criminal defendant could not be held responsible for his crimes if “a disease of the mind” prevented his knowing the “nature and quality of his acts” or distinguishing “right from wrong.” The M’Naughten Rule remains the cornerstone of the modern insanity defense.

One of Heilbroner’s early assignments was to the city’s insane asylum, where he represented the People at hearings that determined whether inmates adjudged criminally insane had become “non-dangerous” and eligible for release. It was here that he came up against the contradictions inherent in the insanity defense.

While acknowledging that the inmates were compelled to commit their criminal acts by mental illness, nonetheless Heilbroner observed that their illness “did not rob them of the ability to understand what they were doing at the time (they committed the crimes), or (to) grasp the proceedings that determined their fate.” How, then, he wondered, could the insanity plea be justified? Putting this question to his supervisor, he was told that the insanity defense is “the right thing to do. End of story.”

Right by whose standards? the reader may well ask. Implied throughout Heilbroner’s book is the question of whether the criminal-justice system has any moral content at all, or if it operates simply on principles of bureaucratic and political expediency. The question was vividly dramatized for me in a little story Heilbroner tells about being yelled at by a judge who found Heilbroner’s plea offer on a “farebeat,” e.g., a defendant charged with hopping a subway turnstile, excessive. Because the defendant had many previous arrests, Heilbroner asked for 60 days. The incredulous judge replied, “Sixty days for a farebeat? Listen, Mister, you better get it together or you’ll be practicing law in Poughkeepsie.”

“Getting it together” means, in this context, learning how to keep the cases moving. To that end, each offense, from farebeat to first-degree murder, is worth a certain amount of time from which there is virtually no variation. This kind of law-by-numbers may move things along but what it provides is statistical uniformity, not justice.

Heilbroner clearly is troubled by this lack of justice but fails to truly grapple with his concern. His book suffers from a sort of identity crisis in that he wants to have written both a picaresque memoir of his passage through the criminal justice system and an indictment of that system. Some of his anecdotes actually serve his polemic purposes, but many seem included simply for their bizarreness.

Perhaps his literary purposes would have been better served either through fiction or a frank nonfiction expose. Still, “Rough Justice” is a useful antidote to the lynch-mob mentality that the mere mention of crime seems to inspire these days, a mentality perhaps best typified by gubernatorial candidates posing proudly next to the pictures of criminal defendants whom they promise they will, if elected, send to their deaths.

BOOK MARK: For an excerpt from “Rough Justice,” see Opinion, Page 5.