In pursuit of simple, ordinary justice.

AuthorMuse, Robert F.
Position50th Anniversary of the American Criminal Law Review

On any day except Sunday, you can walk a few blocks and visit the Superior Court for the District of Columbia. At the very bottom floor Courtroom C-10, down the hall from the cell block--where a U.S. Marshals poster reads "Let No Guilty Man Escape" below an image of a gallows--you'll see men and women, escorted in one by one. But before you see them, you'll hear them: that is, you'll hear the jingling of their chains. They will stand below the judge and be told that the United States of America wants to convict them of a crime, forever changing their lives. Then the judge, the Assistant U.S. Attorney, and the defense lawyer will take about three minutes to decide if the defendant will sleep in his bed that night, or on a cot at the D.C. Jail. Listen to the clerk intone the litany of one case after another: "United States v. Smith, United States v. Jones, United States v. Johnson ..."

Imagine hearing the "United States of America versus" you.

This is our criminal justice system. In every state, in every city, every day: "The United States of America charges ...;" "The State of Maryland charges ...;" "The People of the City of New York charge ..." With each case, one man's freedom, one woman's freedom, is put into play.

Back upstairs at the Superior Court, the long, dark hallways are filled with the lawyers, families, defendants, victims, and police, sitting, standing, pacing, waiting to be called into court. There are groups standing off to the side, quietly negotiating, dealing, advising, reviewing, like actors waiting in the wings offstage, or athletes standing on the sidelines, waiting to be called into the game. Beyond the large wooden doors of the trial courtrooms sit the judges (some of you will be there as judges one day), the prosecutors (some of you will prosecute the accused), the defense counsel (many of you will defend them), and the defendants (pray to God that none of you have that role).

It is an extraordinary world that many try to understand, examine, and critique. We must study it, for nowhere else in our society--other than in combat--are the competing forces of good and evil, justice and injustice, victory and defeat, and hope and despair so powerfully on display. It impacts every citizen. Its controversies hold our emotions and define who we are as a people, what we are as a society.

For fifty years, the American Criminal Law Review ("ACLR") has been contributing to this study by offering insights, opinions, and wisdom on the myriad topics that define this strange, often inexplicable world. This anniversary provides a unique opportunity to reflect on the role of the ACLR: its purpose, its service to the cause of criminal justice, and its importance to Georgetown University Law Center ("Georgetown" or "the Law Center"). I am honored to give these remarks and to participate in the celebration of the journal.

By way of background, I was one of the editors of the journal when it first came to Georgetown; I had a close association with Sam Dash, the man who brought the ACLR to Georgetown; I have had writings published in the ACLR; and for years the journal--particularly its annual survey--has occupied a prominent place on my bookshelf. So, let me spend a few moments discussing the ACLR. Then, I will use it as a backdrop to discuss a couple of issues at the forefront of criminal law, and how you as lawyers may want to view and shape our criminal justice system. First, though, I need to give you a bit of background about Sam Dash.

Sam was a professor of criminal law and ethics at Georgetown for almost forty years, arriving here in the mid-1960s. His career was legendary, both at the Law Center and around the world. Perhaps his most notable achievement was as Chief Counsel to the Senate Watergate Committee, where he set the gold standard for how investigations should be conducted. (1) Ultimately, the work of the Senate Watergate Committee led to the impeachment hearings and resignation of Richard Nixon.

But Sam's impact went well beyond Washington. Throughout the world, he was involved in numerous epic battles relating to human rights, including the investigation of Bloody Sunday in Ireland and helping to free Nelson Mandela from prison in South Africa.

His greatest impact, though, was as a professor at Georgetown. Thousands of students learned from Sam, and his goal was to blend the world of academia with the practical world outside the walls of the academy. He was always looking for opportunities to help the students. Through those efforts, he brought the ACLR to Georgetown.

The journal has become a staple of the legal profession, particularly in the criminal law community. An extraordinary and comprehensive range of articles has been published in this journal. It has been a canon of the criminal law for the last half-century. Over the last ten years, it has been the most cited criminal law journal in the country. (2) It has powerfully and incisively illuminated the developments in the law relevant to defense counsel, prosecutors, judges, academics, and students. Sam would be proud of--but not surprised by--its success at the Law Center and beyond. So congratulations to you all at the ACLR.

Apart from these congratulatory words, permit me to comment on two of the topics that have come under scrutiny in the pages of the ACLR: first, our prison system; and second, the role of counsel, particularly your role.

Our prisons constitute the most vile, most depraved, and most racist aspect of our criminal justice system--perhaps our society. I make these comments because I do not believe that anyone who is concerned about criminal law, and has the pulpit, should let the moment pass without confronting this grotesque system of injustice. Consider the following:

* The United States, with 5% of the world's population, has 25% of the world's prisoners, (3) the highest incarceration rate of any nation in the world (4), at the cost of $75 billion per year. (5)

* 2.3 million people are in our prisons and jails. (6)

* More than 60% of the people in prison are racial and ethnic minorities. (7)

* In some states, 80%-90% of...

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