Making the Case for a Truly Equitable Justice System

In a new book, Susan Estrich tells how politics has damaged public faith in the law.
by Meg Sullivan
Legal expert Susan Estrich, far left, contends in her new book, Getting Away With Murder: How Politics Is Destroying The Criminal Justice System, that “abuse excuses, sympathy defenses and other forms of group-based entitlement” are eroding the justice system.

photo: Irene Fertik
Ask Susan Estrich how O.J. Simpson's infamous murder trial should have ended, and the USC legal scholar sounds like she's describing a 1990s version of Mr. Smith Goes to Washington.

"The jurors would find him guilty based on the evidence and then march en masse to the office of the chief of police and mayor and demand changes or else," Estrich writes in a new book. "Think how much might have been accomplished. They could have united the community. They could have been a voice for change."

In Getting Away With Murder (Harvard University Press, 1998), Estrich refers to this imaginary scenario as her "Frank Capra ending," in reference to the resolutely upbeat director whose 1939 character sets out to bust corruption as a neophyte senator.

But instead of giving a Capraesque coda to the crime of the century, the Simpson jury members used their power to acquit a guilty man in order to protest a racist system, Estrich contends. And she sees that act as the prime example of a troubling trend in America's criminal justice system.

"Political reactions that should be part of the solution to the loss of faith in the system instead have become part of the problem," Estrich warns in the book, subtitled How Politics Is Destroying the Criminal Justice System.

THE PROLIFERATION of message verdicts, when coupled with unworkable anti-crime legislation and the mounting popularity of "sympathy defenses" and "abuse excuses," are causing the American public to "lose faith in our ability to find a common ground and trust in the rule of law," writes Estrich, the Robert Kingsley Professor in Law and Political Science.

"Three-quarters of all blacks in America believe that the criminal justice system is racist and unfair," Estrich writes. "Nearly half of all whites think it's ineffective, and getting worse."

Only through a process that embraces a common standard of criminal responsibility can we avoid what she calls "the lowest-common-denominator search for false equity." In this important quest, not just juries, but lawyers, judges, lawmakers and the media have an important role to play, Estrich says.

"While the rule of law does not require homogeneity, it does require trust and faith in our ability to judge one another as we would ourselves," she writes.

Estrich is just the person to explore the extent to which politics affects criminal justice. Having served as the campaign chief for Michael Dukakis' 1988 presidential campaign, she remains a Washington insider. She also boasts considerable experience in criminal law, having worked with Alan Dersho-witz on such high-profile criminal cases as the successful appeal of Claus von Bulow's 1982 murder conviction. Having come to USC from Harvard Law School in 1990, Estrich also has a deep commitment to protecting professional legal standards.

"I think there is a lot of common ground on crime and criminal justice policy that gets obscured in the political debate, and never, ever gets translated from the legal and public policy debate into the popular debate," she said.

Estrich said she got the idea for Getting Away With Murder from a string of high-profile criminal cases that held Los Angeles spellbound in the four years between the acquittal of four Los Angeles police officers in the first Rodney King trial and the O.J. Simpson acquittal on murder charges, she said.

"It was a phrase that just kept recurring," said Estrich, a frequent legal analyst in the media. "Somebody was always getting away with murder and people kept saying, 'If this one gets away with murder, why doesn't this one get away with murder?'"

The issue of mercurial standards of culpability is most frequently raised in such far-fetched "sympathy defenses" or "abuse excuses" as the "adopted child syndrome," Estrich said.

While she stops short of calling for an end to all group-based defenses, Estrich does say their increasing popularity is resulting in a "balkanization of criminal responsibility" that is diminishing the ability of our diverse society to live by a common standard.

"The logical extreme of the argument for abuse excuses, sympathy defenses and other forms of group-based entitlement is that only hit men are murderers," Estrich writes. "Everyone else, judged by the standards of his self-defined cultural or abuse group, is doing no worse than someone just like him would do."

The proliferation of abuse excuses and sympathy defenses also adds to mounting cynicism.

"Many of the efforts misfire, but there are enough successes to contribute powerfully to the sense that everyone who can afford an expensive lawyer can avoid being held responsible for his or her behavior," Estrich said.

Another reason for the crisis of confidence in the criminal justice system is the long shadow of Willie Horton, a first-degree murderer who, while on weekend furlough from a Massachusetts penal institution, brutally raped a Maryland woman in her home, Estrich said. Dukakis, governor of Massachusetts at the time Horton was furloughed, supported the furlough program even after Horton's crime. Dukakis' position is widely believed to have cost him his presidential bid.

"Today, Democrats outdo themselves to prove that they are just as tough on crime as Republicans," Estrich writes. "Everyone has learned the lesson of Willie Horton. No one tells the truth, and the political dishonesty is distorting and destroying the system."

PRIME EXAMPLES, Estrich said, are the three-strikes law and mandatory drug sentencing. More often than not, the mandatory terms and life sentences end up being applied to drug users and thieves instead of dangerous predators, she has found. In fact, more than 70 percent of the three-strikes convictions in the first two years of the California law's application were for nonviolent offenses.

"We spend more and more money locking up less and less violent people," Estrich said.

Far from eliminating capricious sentencing as intended, such anti-crime legislation has only shifted discretion from the judiciary to prosecutors and lawmakers, cloaking the process in secrecy.

WHEN JUDGES alone de-termine sentences, their decisions are made out loud, supported by written opinions that are subject to review by higher courts, Estrich pointed out. But under judicial reform, prosecutors in-creasingly determine the eventual sentence by deciding whether to pursue convictions under three strikes or manda-tory sentencing guidelines. Such tactics are determined behind closed doors in staff meetings with the local district attorney.

"Even at its best, prosecutorial discretion gets exercised invisibly," Estrich said.

Meanwhile, the tough-sounding anti-crime legislation is having the opposite of the intended effect by increasing prison overcrowding.

"Mandatory sentences are in fact the best thing that ever happened to violent criminals [from the criminal's point of view], because overcrowding forces across-the-board release," she said.

Yet no politician dares criticize either three strikes or mandatory sentencing for fear of appearing soft on crime, Estrich said.
Treating petty thieves and drug users as if they were killers is also helping to convert juries into instruments of race politics, she said.

"Invisible discretion in a system still dominated by black defendants and white decision-makers is bound to be attacked as racist, and it has been," Estrich writes.

While largely critical of mandatory sentencing, Es-trich maintains that judicial reform does hold part of the solution to the creeping cynicism that threatens America's criminal justice system.

If sentencing discretion were returned to judges and they were required to explain all sentences in writing, we would be able to build what Estrich calls a "common law of sentencing" that would be far more nimble and just than today's mandatory guidelines.

"We should say to judges, 'Explain as you go,'" Estrich said. "Tell me how this case is like or different from the ones before so that some day in the future anyone in the legal system could walk in and say, 'Ah ha! Here's how I can make a pretty good judgment of what's likely to happen.'"

JURIES ALSO HAVE a re-sponsibility to restore confidence. Instead of allowing themselves to become instruments of race politics, they need to embrace their traditional role as the conscience of the community, Estrich said.

"Isn't the answer to racism to fight racism, not to protect guilty people from punishment they deserve?" she asked.

But punishment is not the only answer, Estrich said.

"Studies that have found that graduation incentives and parent training actually cut crime more cost-effectively than three strikes," she said. "But those efforts don't command top priority, even among representatives whose districts stand to gain the most, because they are afraid of being seen as soft on crime."

Lawmakers, she said, need to find the political courage to divert resources now destined for prisons to prevention. "It's not racist to lock up Willie Horton," Estrich writes, "but planning prisons for preschoolers is."

And lawyers, with their terrible public relations problem, should do a better job of celebrating their heroes, she said. It's absurd, for instance, that the nation has 500 cable channels but no television cameras to cover the Supreme Court - where lawyers, like the Capra character, can be a force for good.

"Mr. Smith comes to Washington on a regular basis in the Supreme Court," Estrich said.