The tragic consequence of our romanticism of the law

Radley Balko writes in Reason magazine about the most tragic consequence of both our romanticism of the law and the most recent moral panic we've experienced around sex and sex crimes.

Blinded by the Law

A 17-year-old boy, Genarlow Wilson, is sentenced to 10 years in prison for oral sex with a 15-year-old girl at a New Year's Eve party. The sentence was overturned. But the prosecutor will appeal arguing, "It is my responsibility to follow the laws of Georgia as they are written, not how some may wish they were written."

As Balko argues:

"In other words, as the Charles Dickens character Mr. Bumble famously proclaimed in "Oliver Twist," "the law is a ass." And it's Thurbert Baker's job to slavishly follow that ass wherever it may lead.

That, unfortunately, is an increasingly common sentiment among many prosecutors-"I don't make the laws, I just enforce them." It's also not entirely honest.

Prosecutors have enormous discretion in when and how and against whom they bring charges. They can overcharge and pressure the defendant to plea bargain. They can undercharge if they feel there are mitigating circumstances associated with the crime. Or they can determine that despite the fact that a crime has been committed, in the interest of justice, charges ought not be brought at all.

What's more, every prosecutor's office battles with limited resources. A prosecutor can't possibly enforce each law against each person who breaks it. So prosecutors set priorities. And in choosing which laws they will enforce vigorously and which laws they will let slide, they make public policy.

It's entirely appropriate, then, for citizens to question those policies.

So why were the charges against Wilson brought in the first place? Why would Wilson's prosecutors choose to pursue a charge of "aggravated child molestation"-a law clearly aimed at pedophiles-against a teenage boy who had consensual oral sex with a teenage girl? And why would Georgia's attorney general continue to expend taxpayer resources to ensure that Wilson stays in prison?

Part of the answer may lie in the crime's sexual nature. Whether because of latent Puritanism, moral panic or the media's infatuation with them, prosecutors seem particularly aggressive in prosecuting sex crimes. This, of course, is what we want when talking about actual sexual predators. But that clearly is not the case here. And there has been a rash of stories of late about similar overreaches.

In one of the more egregious examples, in February, the tech news site CNET reported a case in Florida in which a 16-year-old girl and 17-year-old boy were prosecuted for producing and distributing photographs depicting the sexual exploitation of a child. The two had photographed themselves having sex. The distribution charge came when the two e-mailed the photos from the girl's computer to the boy's. Inexplicably, a state appeals court upheld the conviction.

From silly anti-sodomy laws, to prostitution stings, to prosecutions of consenting minors, sex seems particularly adept at clouding a prosecutor's judgment.

More generally, after 40 years of "get tough on crime" rhetoric, many prosecutors and politicians have unfortunately come to measure success in our criminal justice system by the number of people they put in jail. Criminal laws-particularly those pertaining to drug and sex crimes-are increasingly written with extraordinary breadth and reach. Police officers typically are rewarded for arrests, not for preventing crimes. Prosecutors tend to be promoted or re-elected based on their ability to win convictions, not their fairness or sense of justice. Appeals courts, meanwhile, generally focus on constitutional and procedural issues. Only in extreme cases will an appellate court review the appropriateness of a verdict.

From the writing of laws to their enforcement and prosecution, our system has evolved to the point where justice, mercy and fairness often go overlooked. It's no surprise that the U.S. leads the world in its rate of incarceration, and by a wide margin.

Polls show that most Americans think our criminal justice system usually gets things right. Yet we're finding through the use of DNA evidence just how alarmingly often it doesn't. Sometimes the culprit is incompetence. Sometimes it's malfeasance or corruption among forensics experts, police officers, DNA lab technicians and other criminal justice gatekeepers.

But as the Wilson case shows, even when there is no corruption, no lying and no shortcuts taken-even when everything is done by the book-you can still get a result that's far from just.

Traditionally, that is why we grant executives the power to issue pardons and clemency. It's why the Founders gave those powers to the president. As Alexander Hamilton explained in Federalist No. 74, "The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel."

Unfortunately, we've drifted from that notion. Today, governors (and the president), loath to appear soft on crime, tend to be stingy with their pardon power, using it more for political patronage or to bestow mercy and forgiveness on repentant lawbreakers than to seek out and correct real injustices. (Georgia's pardons are granted by an appointed pardons board, not the governor.)

That makes it essential that prosecutors choose cases in which there is a clear demonstration of guilt, where the crime caused real harm to another person and where the potential punishment is proportional to the crime. The ability to secure a conviction isn't enough.

In the Genarlow Wilson case, there was no question of the teen's guilt. Yet the jury's forewoman shed tears as she read the verdict. Other jurors expressed regret after the trial, outraged that they weren't told their verdict would result in a 10-year sentence. The point here is that the prosecutors should have shown the good judgment never to have brought the molestation charge in the first place.

Prosecutors need to be more than inveterate slaves to the (often poorly written) law. And more broadly, we need to stop gauging our criminal justice system's effectiveness by how many people it puts in jail. We need to measure it by how well it metes out justice."

That's been my favorite part of this whole period. Noone is responsible. No matter how ugly and wrong the consequences, noone is responsible. Because, as in Nazi Germany, everyone is afraid of the consequences they will face if they do not mete out the consequences that they believe that everyone else wants.

That is one of the most tragic consequences of our romaticism of the law. That it makes cowards of us all, and unwilling to face our own cowardice.

But it is not the most tragic consequence of this godforesaken political period. The most tragic consequence is 16-year-old and 17-year-old kids going to jail for our pride and cowardice and unwillingness to acknowledge our failure to do much good at all with all of this fear and prosecution and bullying in the name of doing good in the world.

The saddest tragedy of the old Soviet Union and Nazi Germany was that so many Russians and Germans cheered and actively supported or said nothing and followed orders towards the ugly ends of those regimes.

And the saddest tragedy of the 21st century is that we are repeating their mistakes out of our own fear and ignorance and cynicism and cowardice.

We have seen the enemy and he is us.

The question is whether we will summon the courage to face our cowardice and the tragedy that it has produced.

Love,
Ben