The Price the Innocent Pay for the Politics of Prosecution

Revelations emanating from the Rampart Division scandal suggest that significant numbers of defendants pleaded guilty to crimes they didn’t commit. Those sworn to uphold the law undermined a basic, 200-year-old tenet of the U.S. justice system: It is better to free 100 guilty people than unjustly imprison an innocent person. Yet, the assault on this ideal does not begin and end with corrupt police officers. The changing attitude toward crime suppression and the politics of prosecution have eroded age-old protections against erroneous conviction of the accused.

While the acquittal of the culpable may be an outrage, convicting the nonculpable is unacceptable. It is out of this concern, among others, that the founding fathers crafted the Bill of Rights, and courts have adopted procedures to honor those rights.

The right to counsel stands out as the most fundamental, because it provides a defendant with a trained advocate who scrutinizes the integrity and strength of the people’s case. Another protection is the prohibition against involuntary confessions, which are inherently unreliable. To minimize the possibility of misidentification, various procedures are made available to a defendant, such as lineups.

With rare exceptions, the public and law-enforcement professionals have accepted and endorsed these rights. But when Californians perceived that the complex web of search-and-seizure rules developed by the courts excluded evidence that resulted in the release of guilty defendants, a public outcry ensued. Voters resented the court’s elevation of technicalities over truth to regulate police behavior. They concluded that the courts were more concerned about criminals than the law-abiding. The political backlash culminated in 1982 in the passage of Proposition 8, which limited the exclusion of evidence to federal standards, thereby reducing the likelihood that the guilty would go free.

But the movement to change the system went beyond ensuring a more truthful trial. By taking advantage of the public fear of and the media’s infatuation with crime, opportunists from both sides of the political aisle pushed through laws that had the result of increasing the danger of wrongful convictions.

One example was passage of California Evidence Code Section 1108. Before this law, evidence of past crimes committed by a defendant could not be used to show a propensity to commit the charged crime. This type of evidence was not allowed in the belief that it would unduly prejudice a jury against the accused. The only exceptions permitted were instances in which such evidence proved an issue in the case, such as intent or identity.

With passage of Section 1108, evidence of previous criminal sexual activity can now be used to show propensity to commit a new charged crime. While such evidence facilitates the conviction of the culpable, it also increases the possibility of convicting someone wrongfully accused. If a man accused of a sexual assault is innocent, evidence of that innocence can easily be overwhelmed by the jury’s knowledge that the defendant committed such an act in the past. Some jurors might be less concerned about his present guilt and more worried about his potential for future crime. This, of course, is a notion of preventive detention that has no place in the criminal-justice system.

Another law increasing the likelihood of erroneous convictions is “three strikes.” The law provides for lifetime incarceration for any third felony conviction. Sold to the public as a measure to end early release of violent offenders, three strikes cast such a broad net that it initially offended even the California District Attorneys Assn. It should be noted that the district attorneys have since changed their position, succumbing to the politics of prosecution.

In an attempt to lessen the draconian impact of three strikes, which permits lifetime imprisonment for even relatively minor offenses, a prosecutor may offer a significantly lower sentence if the defendant pleads guilty to the charge. Unfortunately, the resulting disparity of punishment between taking the deal and a life sentence after trial is so great that a defendant is not likely to go to trial to contest the charge even if he is innocent. The unintended consequence is to coerce pleas in the name of justice while once again undermining the importance of accurate verdicts.

What makes the three-strikes law even more likely to result in an innocent man pleading guilty is that draconian sentencing can be triggered by conviction on a minor drug charge. Consequently, the danger of coercive pleas is combined with the danger of corrupt enforcement. The Rampart scandal reminds us that a corrupt cop can more easily manipulate the outcome of a drug case than other street crimes. Drug enforcement rarely involves nonpolice testimony, and the facts of a particular crime are often subsumed by the broader goal of crime suppression. This can lend itself to an ends-justifies-the-means mentality when the officer has any inclination to break the law.

Section 1108 and three strikes reflect a growing and understandable intolerance for repeat offenders. These laws also demonstrate a willingness to increase the likelihood of convicting some individuals for crimes they didn’t commit based on the fact that they have committed crimes in the past. It is not that recidivism shouldn’t be considered when determining punishment. It most definitively should. Punishment should be increased for those who continue a criminal course of conduct. A person’s past can and should be considered by a jury if a defendant takes the stand: Prosecutors can reveal the defendant’s past criminal behavior if he chooses to testify and put his credibility on the line. But an individual’s past is not the crime. It is a grave injustice to convict an innocent man, even if the accused committed crimes in the past. Innocence doesn’t mean goodness or decency. It means he didn’t do that crime.

Unfortunately, a robust debate about criminal justice has been replaced by the politics of prosecution. A long-standing principle of justice has been cast aside in an attempt to reap a windfall of votes for the toughest politician in town.