The U.S. Criminal Injustice System.

I'm sure I wasn't alone in losing sleep over Frontline's "The Case for Innocence," which aired nationwide on PBS during February and March 2000. Although excellent, this documentary barely scratched the surface in exposing the appalling state of the so-called criminal justice system in the United States today. The following is a brief discussion of the problems I consider particularly deplorable.

Egregious errors. Although new DNA testing methods have helped determine the guilt or innocence of criminal suspects, they have also revealed the many past mistakes that have wrongly convicted a significant number of individuals to prison and death row. The exoneration and release of prisoners from death rows in recent years has confirmed that innocent people have been sentenced to die. Worse yet, it has been documented that innocent people have been killed by the state. What more egregious error can exist than this?

Imagine, if you can, what it would be like to be given a life sentence for a crime you didn't commit and to finally be able to prove your innocence, only to have the court refuse to consider the evidence. Prosecutors are notorious for their inability to admit they were wrong in a case. "The Case for Innocence" documents the deeply ingrained refusal of judges to consider past errors of the system.

Mandatory sentences. Mandatory sentences are an obvious abuse of the separation of powers, as they allow law enforcement to stipulate sentencing--and the judiciary has no choice but to comply. This has become most evidentiary in relation to the United States' drug war, which has been an abysmal failure.

Even with multibillion-dollar funding and full military power, the United States has not been able to intercept more than 1 percent of the illegal drugs coming into the country. Translation: in federal prisons, the average drug offender spends more time imprisoned (82.2 months) than do rapists (73.3 months); in California, more inmates are serving life sentences without possibility of parole for marijuana possession than for murder, rape, and armed robbery combined. Surely we can't permit this so-called justice to continue!

Overuse of grand juries. The grand jury system must be fundamentally restructured. Today, 99.9 percent of all federal cases involve indictment by grand jury. That means no preliminary hearing, no discovery prior to indictment, and no lawyer present on behalf of the accused. In fact, in grand jury investigations, the accused isn't even present and doesn't see, hear, confront, or cross-examine his or her accusers. There are rare circumstances in which this process is necessary--and for which grand juries were originally created--but their overuse is now seriously undermining the very concept of justice.

Erosion of bail Over the past ten years, a presumption against bail has evolved that inherently challenges the fundamental presumption of innocence and has resulted in thousands of people sitting in jails who have not been convicted of any crime. As a result, the constitutional right to a speedy trial has become something of a joke, as the accused are sometimes kept behind bars for a year or more before their cases are even adjudicated.

Inhumane treatment. An unprecedented trial began in Seattle, Washington, in early March of this year. For the first time, maximum-security isolation cells, used in many special facilities across the country, went on trial. Public defender Marybeth Dingledy argues that the many years spent by twenty-two-year-old Rodney Gitchel in these "intensive-management units" so damaged his thought processes that the prison system is responsible for his increasingly violent behavior. Tragically, countless other mentally ill people who enter the criminal justice system at an early age can legitimately make the same argument.

By his teens, Gitchel had been sent to-and had escaped from--numerous juvenile facilities. At age eighteen, he slit his wrists in a suicide attempt. By age twenty-two, he had spent time in several prisons for armed robbery and had attacked three guards. Much of this time was served isolated from human contact, often strapped by his ankles and wrists for up to twenty-three hours a day. On one documented occasion, he was kept in this state for seven weeks.

Dr. Fred Davis, the psychiatrist who approved such restraint for Gitchel at Monroe State Prison in Washington State, testified that it was intended as "therapy" to "help" the inmate learn to control impulsive violence. This callous attitude, which is widespread among prison professionals, has resulted in a nationwide boom in the construction of "supermax prisons," many of which lock all prisoners in solitary confinement with no human contact for years on end.

Buying testimony with freedom. In 1998, a three-judge panel of the Tenth Circuit Court of Appeals unanimously decided to overturn the drug-dealing conviction of Frances Singleton because the primary witness against her had been offered leniency in exchange for testimony. In its groundbreaking decision, the court said such deals are in violation of the following longstanding federal statute:

   Anyone who directly or indirectly gives, offers, or promises anything of
   value to any person for or because of testimony ... shall be fined ... or
   imprisoned for not more than two years, or both.

Seems straightforward enough, but this statute is violated thousands of times every day in the United States.

Sadly, upon rehearing the case, a majority of the entire court reinstated Singleton's conviction, observing that no

   practice is more ingrained in our criminal justice system than the practice
   of the government calling a witness who is an accessory to the crime for
   which the defendant is charged and having that witness testify under a plea
   bargain that promises him a reduced sentence.

Ingrained? Obviously. Just? Of course not. According to the dissenting judges in the case:

   The government's argument that discontinuing the pervasive practice of
   buying testimony for leniency would jeopardize law enforcement is just
   another way of saying that the end justifies the means; not only is such a
   premise unsound policy, it also serves to demean the profession and all who
   strive to continue our system of justice as the fairest in the world.

There is no question that the entire U.S. criminal justice system is in desperate need of sweeping reform. Often, the proper course of action is self-evident. Until we have the conviction to take on this task, we will continue to sacrifice the fundamental principles of fairness upon which this country was founded. As the late Circuit Court Justice William Burciaga wrote:

   We must understand that ethical standards are not merely a guide for the
   lawyer's conduct, but are an integral part of the administration of
   justice. Recognizing a government lawyer's role as a shepherd of justice,
   we must not forget that the authority of the government lawyer does not
   arise from any right of the Government, but from power entrusted to the
   Government. When a government lawyer, with enormous resources at his or her
   disposal, abuses this power and ignores ethical standards, he or she not
   only undermines the public trust, but inflicts damage beyond calculation on
   our system of justice.

Barbara Dority is president of Humanists of Washington, executive director of the Washington Coalition Against Censorship, and cochair of the Northwest Feminist Anti-Censorship Task Force.