The Rules of the Justice Game

Georgia killed Troy Davis by lethal injection earlier this week. He might have been innocent; he certainly should not have been executed. One thing seems clear to me regarding the Troy Davis case, the Cameron Todd Willingham case, and others: The fact that judges and others believe the defendant to be guilty allows them to overlook real problems with the way evidence is collected and cases are tried.

Such botched death penalty cases and wrongful executions bring the American public face-to-face with unpleasant realities of our criminal justice system we would rather not confront—realities that render our legal system utterly unprepared to make the kinds of decisions one needs to make in ending a human life.

Our federalist system gives local majorities great discretion—I believe too much discretion–to inflict injustices on genuine or merely alleged perpetrators of crime. For that very reason, it provides people with an opportunity to witness these injustices, and thus to learn from them and do better. I am convinced that public support for the death penalty will decline as increasing numbers of Americans perceive this reality.

The injustices are most pronounced and intolerable in the relative handful of capital cases. Many of these injustices are obviously more common in non-capital cases. Eyewitnesses prove surprisingly fallible. There is the mistreatment (in multiple senses) of mentally-ill and intellectually-disabled people. Tragedies result from incompetent or grossly under-resourced legal counsel. There is the sorry spectacle of elected officials tolerating or upholding visibly unjust outcomes when this seems politically expedient to them.

Perhaps most pernicious, there are the toxic consequences of he’s-probably-guilty-anyway jurisprudence, whose on-the-ground realities depart from (indeed sometimes invert) the version of due process our children learned in school. It’s hard to understand how an apparently innocent defendant might be railroaded unless you place yourself into the mindset of the police, prosecutors, attorneys, judges, and other human beings who cut some legal corners in the sincere belief that this defendant was probably guilty.

Long ago, Alan Dershowitz noted this last reality in what he called thirteen rules of the justice game. Rule XIII is way too cynical for me. Yet rules I-XII have uncomfortable validity. With Professor Dershowitz’s permission, I’ve reproduced these rules below. The more one ponders the environment that gives rise to these rules, the easier it becomes to understand how tragedies emerge from the normal workings of our justice system.

There is no silver lining to Troy Davis’s death. There is, however, one potential redemptive element. If his wrongful execution and others lead us to take a long hard look at the real operation of our criminal justice system, some good may come of it.

Rules of the Justice Game

I. Almost all criminal defendants are, in fact, guilty.

II. All criminal defense lawyers, prosecutors and judges understand and believe rule I.

III. It is easier to convict guilty defendants by violating the constitution than by complying with it, and in some cases it is impossible to convict guilty defendants without violating the constitution.

IV. Almost all police lie about whether they violated the constitution in order to convict guilty defendants.

V. All prosecutors, judges and defense attorneys are aware of rule IV.

VI. Many prosecutors implicitly encourage police to lie about whether they violated the constitution in order to convict guilty defendants.

VII. All judges are aware of rule VI.

VIII. Most trial judges pretend to believe police officers who they know are lying

IX. All appellate judges are aware of rule viii, yet many pretend to believe the trial judges who pretend to believe the police officers.

X. Most judges disbelieve defendants about whether their constitutional rights have been violated, even if they are telling the truth.

XI. Most judges and prosecutors would not knowingly convict a defendant who they believe to be innocent of the crime charged (or a closely related crime).

XII. Rule XI does not apply to members of organized crime, drug dealers, career criminals, or potential informants.

XIII. Nobody really wants justice.

[Cross-posted at The Reality-Based Community]

Harold Pollack

Harold Pollack is the Helen Ross Professor at the School of Social Service Administration at the University of Chicago.