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Escape of the guilty: a trial judge speaks out against crime.

Escape of the Guilty: A Trial Judge Speaks Out Against Crime. Fine lucidly sets forth various ways in which our judicial system is not merely failing us but actually "seems more intent on finding reasons to let admittedly guilty criminals escape than in doing justice for society." He writes in a measured, highly readable style, with a wealth of examples from his experience on the bench. Fine has been a Wisconsin circuit court judge since 1979. "I suspect that this will be a controversial book," Fine notes at the end. Let us hope that it is at least widely read and its lessons absorbed.

Fine addresses several importantareas of judicial breakdown, notably plea bargaining and the perversion of various "exclusionary rules," such as the one that was originally intended to prevent coerced self-incrimination ("No person...shall be compelled in any criminal case to be a witness against himself"--Fifth Amendment)but is now frequently used to exclude voluntary confessons.

The excuse for plea bargaining isusually administrative necessity: without it our courts would be hopelessly clogged. But this has been proven false in Alaska, where a resolute attorney general abolished plea bargaining in 1973. Under the new regime, the disposition time for felonies in Anchorage, declined from 192 to 90 days. The sentences wre also more severe. Plea bargaining, as Fine shows, is mostly institutionalized laziness--helpful to prosecutors who would rather spend a week on vacation than in the courtroom, and of obvious benefit to defense lawyers.

Plea bargaining is degeneratinginto the "one-law-for-the-rich-another-for-the-poor" rightly detested by liberals. "Courts in Florida and North Carolina recently permitted the ultimate quid pro quo," Fine writes. "Defendants accu sed of violating drug laws were placed on probation following their 'donations' to local governments of hundreds of thousands of dollars."

Judge Fine is particularly goodon problems arising out of the 1966 Supreme Court (5-4) ruling in Miranda v. Arizona. The "essential thrust of the decision," he writes, was that criminal investigation was no longer to be the pursuit of truth (with appropriate safeguards to prevent extortion of confessions), but rather a contest "in which one player, the police, would have to alert the other player, the suspect, if and when he was about to make a bad move."

What are we to make of a system,University of Chicago Law Professor Dallin Oakes wrote in 1970, that tolerates the following: "Where there has been one wrong, the defendant's, he will be punished, but where there have been two wrongs, the defendant's and the officer's, both will go free"?

The principle behind Miranda,that suspects should be protected from the heavy-handed tactics law enforcement officials might use to extract confessions, is, of course, sound. But a better way to fight police-state tactics--one that won't result in clealry guilty criminals being set free--is to punish severely officials who engage in beatings, unwarranted searchings, and the like.

Fine warns us, and who candispute him after the New York subway case of Bernhard Goetz, that either we repair our judicial system, or numerous potential vigilantes in our midst "will take the law into their own hand sto see that justice is done.c In straightening out the judicial mess, Judge Fine's book is an excellent starting point.
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Author:Bethell, Tom
Publication:Washington Monthly
Article Type:Book Review
Date:Mar 1, 1987
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