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Douglas McFarland begins his Oct. 30 counterpoint (“Prosecutors represent society, not criminals”) by asking “Who isn’t familiar with the iconic opening lines” of a certain television show.
I am not. I don’t come by my knowledge of criminal justice from television. I come to it by 20 years’ experience trying cases, meeting with the accused (and presumed innocent) in filthy, noisy jail cells while trying to prepare a case that the other side, in what McFarland — a professor of law emeritus at Mitchell Hamline School of Law in St. Paul — quaintly describes as two equal sides battling to find truth, prepared with many multiples of the resources the accused can bring to bear. Nationally, 85% of all criminal defendants are represented by farcically overworked public defenders.
If the American criminal justice system in fact pitted two equal adversaries in a battle for truth, as McFarland imagines, his might be a viable system for rooting out crime. It doesn’t.
Don’t take my word for it. “The criminal justice system in the United States today bears little relationship to what the Founding Fathers contemplated, what the movies and television portray, or what the average American believes.” Those are the words of a prominent federal judge, Jed Rakoff.
No, instead of a Hegelian battle of opposites reaching a synthesis, instead of a reasoned conclusion based on a fair measure of conflicting ideas, we have a system that pits one heavily overwhelmed opponent against another who has all of the resources the “awesome power of the state” can muster against him.
As a result, the U.S. has a quarter of all incarcerated people in the world (according to the Brennan Center for Justice) in spite of having less than 5% of the world’s population. We incarcerate six to seven times as many people per capita as other Western democracies. Yet we have much more crime, more violent crime and more inequality.
Our shared goal is to reduce crime. The American model over the last 60 years or so (since President Richard Nixon’s War on Drugs) proves that mass incarceration — more people in prison for longer periods — does not reduce crime. The data are unequivocal that mass incarceration increases crime (by increasing the number of broken families and people who cannot get work).
“Prosecutor-lites” — the term McFarland uses to disparage Hennepin County Attorney Mary Moriarty and other reformists — see that our current paradigm has resulted in mass incarceration and more crime. Progressive movements for social change always produce reactionary resistance.
I invite Prof. McFarland to turn off his TV and join me in a jail or a courtroom.
Barry S. Edwards is a criminal-justice attorney in Minneapolis.
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