Conservative Law and Order
by Donald Devine
Issue 208 – July 25, 2012
Baseball Hall of Famer Roger Clemens has just been acquitted on all six charges of lying about taking drugs 14 years ago, after having faced trial two years previously from the same Federal prosecutors. Barry Bonds encountered a similar experience a few years earlier. The recent decision followed acquittal on one count and deadlock and dismissal on others for former Senator John Edwards for supposed campaign finance violations. In all three cases, the accused were charged and put in jeopardy for minor infractions carrying long sentences and so were forced to expend funds that few other American could afford to prove their innocence.
Even more seriously, Californian Frank O’Connell was charged and convicted of murder in 1985 based on eyewitness testimony and an ambiguous dying declaration by the victim. He served a quarter century in jail but was exonerated in 2012 after the key eyewitness admitted he never recognized the killer in the first place, and it was discovered that police had hidden evidence of other suspects and improperly influenced the now recanted identification procedure.
Conservatives have always been for law and order. But it is essential to understand what that phrase means. Obviously, there was some type of law and order even in Nazi Germany and the Soviet Union but that, contrary to the hallucinations of the Left, is not the type of order conservatives propose.
Most conservatives recognize the arbitrariness of much of U.S. bureaucratic law these days but what is more alarming is the increasingly capricious nature of criminal law. A National Registry of Exonerations from criminal convictions has recently been compiled by the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law to list all known exonerations in the United States since 1989. This registry now contains 891 case files of the estimated 2,000 legal exonerations as a result of pardons, dismissals, acquittals or certificates of innocence during this period. DNA evidence has resulted in 37 percent of exonerations, 63 percent in cases of accused rape.
The cases are disturbing. A 56 percent majority of homicide exonerations resulted from misconduct by police or legal officials. The leading contributing causes to these miscarriages of justice, 66 percent, were perjury or false accusation - mostly deliberate misidentifications (44%). Some exonerates were falsely implicated by a co-defendant who confessed. Including such cases, the convictions in 39 percent of homicide exonerations were caused in part by false confessions. Homicide exonerations represent 76 percent of all false confessions in the data. Juvenile and mentally disabled were, respectively, five times and nine times more likely to falsely confess than adults without known mental disabilities.
Or consider sexual assault exonerations. These resulted overwhelmingly, 80 percent, from cases with mistaken eyewitness identifications. A majority of 53 percent of all sexual assault exonerations resulted from mistaken eyewitness identifications involving black men who were accused of raping white women. The study suggests this huge racial disproportion (about 10 to 1) is probably caused primarily by the difficulty of cross-racial eyewitness identification. Many sexual assault cases also include bad forensic evidence (37%). Child sex abuse exonerations are even more troubling, primarily resulting from fabricated crimes that never occurred at all (74%). Robbery exonerations (like adult rape exonerations) are overwhelmingly cases with mistaken eyewitness identifications (81%).
Most exonerations depend on otherwise finding proof that someone other than the defendant actually committed the crime for which the defendant was convicted. Obviously, if in truth no crime occurred no one else can be found. A small number of no-crime exonerations involve mistakes, usually cases in which a suicide or an accidental death is mistaken for homicide. Five exonerated defendants were convicted of killing or severely injuring infants by shaking them under circumstances that recent evidence has shown could not result in death. Six exonerated defendants were convicted of arson or murder based on forensic evidence that is now recognized as valueless. The investigators believe there are many more false convictions such as these.
Most no-crime exonerations are sexual assault cases in which the complaining witnesses fabricated crimes (89 of 129 cases). Most of these fictitious reports were child sex abuse cases (70). Two-thirds of the child sex abuse exonerations are child sex abuse hysteria convictions from the 1980s and early 1990s. By far the largest concentrations of no-crime cases are group exonerations: at least 1,170 defendants were exonerated in the aftermath of the discovery of 13 major scandals around the country in which police officers fabricated crimes, usually by planting drugs or guns on innocent defendants.
As the Report concedes “even 2,000 exonerations over 23 years is a tiny number in a country with 2.3 million people in prison and jails.” The problem is that we do not know how many others exist and logic suggests there must be more. “If we could spot them easily they wouldn’t happen in the first place.” Moreover, 83 percent of the exonerations were for the serious crimes of murder and rape but these represent only two percent of crimes. Surely, criminal actions that receive less publicity have similar problems. It is difficult to know. The Center for Wrongful Convictions will not even investigate if a prisoner has less than ten years to serve given limited resources, the time necessary to gather the facts and the greater stakes involved elsewhere.
The problem is compounded by the fact 90 percent of criminal convictions today are by plea bargaining. It is enormously difficult to exonerate someone who pleads guilty although given the errors we know about, some accused who are not guilty fear going to court to receive even harsher sentences. Indeed, the files show 135 people who confessed to a crime who were later exonerated. Sixty percent of these exonerations were originally based on coerced confessions. Even assume that this is rare. There is something very disturbing about a legal system that the vast majority of accused people is afraid to use.
The American public views violent crime as the more serious but half of state and ninety percent of national prisoners are jailed for nonviolent crimes. There are so many of these today a popular book is titled Three Felonies a Day, saying that number of crimes are committed by average persons every day without even knowing it. Narrowing the number of supposed crimes is a first step so that the law can at least be known. As far as sentencing non-violent criminals, certainly more can be done with supervised restitution regimes paid to victims, fines, more effective probation, house arrests with electronic monitoring, weekend jail time, halfway houses, public shaming such as on neighborhood billboards and other such punishments rather than jail that many consider more effective in reducing future crimes.
Even restricting the number of crimes will still leave murder, assault, robbery, rape and sexual battery, and the rest. Of course, violent crime is a serious business that needs to be controlled and prisons will be necessary for some. Even for serious crimes alternatives are possible such as required alcohol or drug breathalyzers turning off ignitions for dangerous drivers or even chemical castration for repeat sexual offenders. Unfortunately, it is not even clear much crime is prevented by punishment regimes anyway since the legal system normally acts only after something happens. Obviously, once convicted, a guilty criminal is placed where he cannot hurt society again – and that is necessary. But 67 percent of prisoners commit similar crimes within three years of release and that suggests the present system does not work very well.
Americans used to be more creative. The Declaration of Independence was to a great degree a rejection of using a professional standing army quartered on the people to control them. The Constitution specifically wrote in local militia clauses, time restrictions on military appropriations, protections of habeas corpus and a 10th Amendment limiting national control. As noted by historian George Liebmann, even a professionalized police force in the U.S. is only a bit more than a century old, and for 600 years in the mother country and from the birth of the U.S. order was kept by a local elected constable responsible to a small community whose purpose was to deter rather than apprehend, relying primarily on consensus rather than force. This lone constable was backed only by a neighborhood watch and then by a posse commitatus and militia of all adult citizens, supervised by a circuit-riding judge.
The best and most just anti-crime program creates an order that prevents crime from occurring in the first place. In his wonderfully creative book Neighborhoods Future, Liebmann reports the interesting fact that dissatisfaction with the effectiveness of the modern professionalized and militarized police force has led to a “spontaneous recreation of the earlier institutions. Today nearly 30 percent of the American population lives in residential-community associations with elected officers, a large percentage of which have assumed some security functions.” Wanted posters have moved to neighborhoods, shopping bags and local newspapers, neighborhood policing has been revived, and gated communities and neighborhood watches have grown exponentially with little or no national encouragement or even attention.
News stories are usually limited to very rare examples of violence such as the recent killing of Trayvon Martin by watch volunteer George Zimmerman. Even if he overreacted, it is clear that Zimmermann was injured by Martin and that the community had created a neighborhood watch to keep a peace they thought was threatened. In fact, neighborhood watches do limit crime. These watches tend to be limited to more affluent areas but there is no reason they could not be encouraged everywhere since costs are minor. Deputy New York City Mayor Stephen Goldsmith was notable encouraging what he called “municipal federalism” as Indianapolis mayor and in New York and Liebmann demonstrates that sub-local institutions still flourish in the U.S and throughout the world. That should be the model for a true conservative law and order program.
A criminal justice system is the first responsibility of government and none can be perfect. But there are too many errors in the present system: it is too adversarial, too bureaucratic, too nitpicking, too large, too much based on locking people up and, generally, too unimaginative. Conservative ideas about decentralization, experimentation, and restricted scope of criminalized behavior can help to make it better, more humane and more efficient in promoting order.
Donald Devine, the editor of ConservativeBattleline On Line, was the director of the U.S. Office of Personnel Management from 1981-1985 under Ronald Reagan and is Senior Scholar at The Fund for American Studies.
