Reasonable Doubts.

• Author: POMPER, STEPHEN
• Position: Reforming the criminal justice system

Crime's down but the systems broken: The Monthly's guide to criminal justice rearm

CRIME MAY BE DOWN BUT THE CRIMINAL justice system remains something of a mess. If you've ever spent time on a jury, if you've worked in a criminal court, or if you caught even 10 minutes of the O.J. trial on TV, you've seen some of the problems. The system has an Alice-in-Wonderland quality: The guilty are over-protected, the innocent are under-served, and much of the time the public interest simply fails to enter the picture. Jurors spend days in court dozing through endless delays and witnesses who dare come forward find their lives imperiled. When all is said and done, too many violent and dangerous felons wind up with Get-Out-of-Jail-Free cards and too many non-violent and just-plain-innocent people wind up doing time.

How do we make it better? Read on for the Monthly's guide to criminal justice reform.

Get the Truth Out

Courts are supposed to be finders of fact. Yet there's an awful lot about the criminal justice system that keeps them from ever getting to those facts. Some of the obstacles are straight-forwardly bad laws. Others are more a question of resources and oversight. We could help our courts get past some of these obstacles and here's how:

1. End "Two Wrongs Make a Right" Criminal Procedure: The judicial system labors under rules crafted by the Warren Court, which protect defendants even if it's at the expense of the truth. In a 1997 law review article, University of Minnesota law professor Michael Stokes Paulsen casts this as the "Dirty Harry" problem. In the movie of the same name, Detective Harry Callaghan gets increasingly violent as he goes after a serial murderer named "Scorpio." He busts into his place without a warrant, nabs the murder rifle, and savages Scorpio until he spits out the location of a kidnap/rape/murder victim. But here's the kicker: Although Scorpio is a monster, and Harry does some monstrous things, neither of them is actually punished. Scorpio goes free because all the evidence against him is tainted by Harry's antics, and Harry slides by because cops get away with stuff.

   Decades later, this lose-lose approach is still at the heart of criminal procedure. To be sure, the failing has noble origins. Back in the Civil Rights era, the Supreme Court, concerned about segregationist states deploying policemen to harass and imprison minorities, developed a set of constitutional principles that stopped them from doing that: Ill-gotten evidence was treated like fruit from a poisoned tree and had to be discarded. If the police ransacked your car without a warrant, the resulting evidence could not be produced at trial.

   But the days of officially-sponsored police racism are over. And while there's still racism and police abuse on a different scale, it's hard to see why they are best dealt with by excluding otherwise helpful evidence. It's one thing to say that forced confessions should not be considered: That protects innocent people who might be beaten into confessing crimes they did not commit. But what kind of protection does an innocent person get from an "exclusionary rule" that prevents a court from considering ill-gotten evidence? If Harry busts into an innocent person's apartment and doesn't find anything to seize, then there won't be any evidence for a court to exclude, and there won't be any negative consequence for the police. Not that exclusion is such a negative consequence anyway: when police are evaluated in cities like New York, the emphasis is on the number of arrests to their credit--not convictions. If Scorpio goes free because Harry trashes his place, Harry still may be eligible for a promotion.

   Part of the problem with the exclusionary rule is that it assumes that the Bill of Rights is focused on protecting the guilty rather than the innocent. But some leading constitutional scholars have begun to suggest that this assumption is backwards--protecting the innocent is in fact the top priority. The correct way to control police abuse is not by tossing potentially useful evidence onto the compost pile. It is by punishing the policeman or the police department through a lawsuit or through criminal charges. But the court should, by all means, be allowed to consider Scorpio's rifle and any other relevant evidence that Harry has managed to dig up.

   In 1995 Congress considered a bill that would have gone in this direction--by getting rid of the exclusionary rule and making it easier to sue delinquent cops--but it fizzled. Supporters of the status quo argue that it doesn't really matter: There are so many exceptions to the exclusionary rule that only a small percentage of arrests are lost as a result. They also argue that the rule is useful because it provides at least some check on police abuse--and that creating an alternate system of checks would be a real challenge. This, however, ignores the problems in the current system. Read the recent coverage about the Los Angeles and New York police departments and you will see that the exclusionary rule is not an especially effective mechanism for controlling police brutality. Meanwhile, courts and lawyers waste their time on motions to suppress evidence that can only undermine the truth-seeking process.

   Getting to the truth should be the court's foremost objective. And this principle doesn't apply just to the exclusionary rule. For example, a majority of states have deadlines after which a convict cannot introduce new evidence to prove his innocence. In Virginia, the deadline is a scant 21 days after trial. The idea is to keep appeals from dragging out endlessly, but that's not a good rationale for keeping innocent people in jail. If a convict can present credible new evidence, then a court should review it. But if a case reopens for...