Justice: A Crisis In Perspective
Reflections From A Former Probation Officer
I.
It’s my belief that certain personality types are attracted to police work. As for myself, I was in the business of being a probation officer for twenty-two years. It took that long for me to understand that I didn’t really fit into the system. My original goal as a probation officer was to be in a position to help people make a better life for themselves. What I found was that the probation environment was surrogate law enforcement. While some people were interested in helping others, the dominant feature seemed to be controlling people. For years, I struggled against the idea that people needed to be controlled to such a degree. Further, the intense satisfaction that many probation officers expressed, in being the one in control, seemed to be directly related to certain aggressive personality traits as well as those officers’ particular backgrounds and experiences. When people like me find that they don’t fit in, we have no choice but to, sooner or later, move on. I’ve never characterized this as failure, or even futility, but rather as growth and enlightenment, allowing me now my own unique perspective on justice…
II.
The criminal justice system would actually function pretty well, except for one thing – the people working in it. The promotion of justice and truth, as the ultimate common goal of every participant in the system, has created a “crisis of perspective,” with the answer as to whether justice has been achieved in any given case, entirely dependent on one’s particular focus and interpretation of the law. For example, prosecutors have pursued people so doggedly that they refuse to accept any other version of the facts with the potential for truth. Their blindness to reality rejects the truthfulness of a witness proffered by the defense because he has a prior felony conviction and is thus unreliable. But place that same person on the other side of the fence, with information beneficial to the prose- cution, and their credibility is warmly embraced. Since the evidence is now offered by the state, there is more trustworthiness to it. And prosecution witnesses, of course, never lie, never make mistakes, and always have motives that are beyond reproach…
III.
I am constantly amazed at how little police officers understand a basic tenet of competent law enforcement work:
To spend an equal amount of time investigating a person’s innocence, as they spend investigating his guilt.
To do this means being unwilling to accept a conclusion at face value, no matter how likely it seems. It requires that additional time be spent determining if exculpatory evidence exists, locating and interviewing witnesses that may exonerate a suspect, and supplementing investigations already conducted. The standard police response is to refuse to acknowledge or otherwise validate this philosophy. Yet, logic (let alone justice) dictates that it be done, if for no other reason than to eliminate possible defenses and thereby make the prosecutorial case that much stronger.
Too often, both the police and the prosecutors settle upon the titillating features of an investigation and go no further. As a reflex, they automatically equate these with guilt, without bothering to confirm the factual accuracy of the information. One of my defense investigations as a private investigator involved prosecutorial allegations of lewd and lascivious conduct against a sixteen year old boy by a homosexual adult who had AIDS. In short, those two facts were all that the police needed to know. They had their man. A repulsive crime had been committed. Get the right kind of jury – morally outraged at the defendant’s lifestyle choices yet still anxious to hear the salacious tidbits of the story – and a conviction is assured.
However, my own investigation developed significant information – never bothered to be checked into by either the police or the district attorney – and confirmed by a number of other local witnesses – that showed the prosecution theory of illegal sexual conduct to be absolutely incorrect. Had I not brought this to their attention by, in effect, doing the work they should have done in the first place, a horrible mistake and grave injustice would have occurred. Contrary to popular belief, the government is not always right. Why didn’t the police do their job? Probably because the defendant was gay. And if he was gay, in certain people’s minds, then he couldn’t possibly be innocent.
Despite such a “near miss” as described above, police and prosecutors still eschew performing a more thorough investigation once they believe the crime is solved. Yet, that resolution often goes no further than the extent of their prejudices. One can only speculate how many persons might have been spared a jail or prison sentence had more officers done their jobs better. District Attorneys can file charges against individuals for virtually anything they want. If they simply have a report claiming something has been done, they can file a complaint alleging criminal conduct, with little or no investigation, whether the alleged conduct is real or not. Simply making the allegation changes a person’s life. The accusation is automatically equated with guilt. Facts get in the way of what people want to believe happened. The accused becomes “marked”, regardless of whether (s)he is ultimately acquitted. Reputations and lives are forever altered. That’s why it’s absolutely critical that a thorough investigation be done before charges are filed – not based solely on a single report or one victim’s statement, or a police officer’s hunch, or a prosecutor’s personal sense of outrage or morality.
IV.
Whether the principle actors within the criminal justice system (judges, prosecutors, probation officers) choose to admit it or not, they are directly responsible for the system itself creating criminality, making unnecessary enemies, and fostering a visceral contempt for its processes. Consider, for example, the common practice of “overcharging” (a device whereby prosecutors charge multiple offenses to build a case up, beyond what it is actually worth, in an effort to force a defendant to plead to one or more of them – and thereby gain a quick conviction; the reasoning is that fear will motivate an accused to admit guilt to “some” of the charges rather than risk conviction on “all” of them). Many times this overcharging occurs after a defendant steadfastly maintains his/her innocence to the original charge and elects to pursue a jury trial.
Such knee-jerk reactions by prosecutors amount to outrageously unprofessional petty bullying (“You want a trial, huh? Okay, I’ll show you!”) The overcharging results in “punishment” for a citizen (presumed innocent under our system of jurisprudence) exercising a fundamental Constitutional right. It is unlikely that the role of prosecutor was ever envisioned to include undermining such legal safeguards as the guarantee of the right to a trial.
Suddenly confronted with additional charges, many wholly innocent people give up because of the costs associated with defending the case, the increased risk of conviction of multiple offenses, or simply to get the matter over with so that they can get on with their lives. The price, however, for getting on with life becomes another “notch” for the District Attorney, and a criminal record for the defendant that can carry a lifetime of penalties, including a tarnished reputation and reduced employment opportunities.
There is something fundamentally wrong with a system that perpetuates such injustices. What remains are the bitter feelings and reactions triggered by this treatment – people convinced that, in this society, we live at the mercy of those that have a badge and the power that goes with it.
V.
The system is not interested in finding ways to create a win-win situation for everyone involved in the criminal justice process – the victim, defendant, or society. The name of this particular game is political accountability. It’s all about power, looking good politically, and appearing to be tough on crime. Yet, the persistence of this insensitivity to the human imperatives is creating a backlash of sorts. Increasingly, the American public – that is to say, average law-abiding citizens – are becoming disenchanted with how law enforcement and the courts are doing their job. The system has gained a reputation of not caring about the people it is charged with supervising. They are tired and frustrated of people cloaked with the responsibility and authority of upholding the law, in fact violating it time and time again; of making decisions based on political expediencies or upon obscure rationales that simply have nothing to do with either the best interests of society or the defendant.
Recently, I spoke to a mother whose son was on probation in the State of Oregon for two convictions of driving under the influence. He wanted help. He was tired of being an alcoholic. His parents gladly assisted him in getting that help, and arranged to place him in the Betty Ford Clinic in Rancho Mirage, California. Known as the premiere alcohol rehabilitation center in the country, it has the highest success rate of which I am aware. The State of Oregon, however, would not give permission for the young man to leave the state in order to attend the clinic. The parents did it anyway. Their son successfully completed the treatment. When he returned to Oregon, he was immediately arrested, charged with violating his probation. This appears to be an unreasonable and asinine response to someone taking responsibility for his life. Yet, it happens time and time again.
VI.
You always hear about the outrage of victims, upset with what a particular judge has or has not done. By and large, however, you do not hear about the other people that can be torn apart by the system – how defendants and families are permanently and inexorably affected by what a cop, judge, or prosecutor did with their lives. It isn’t that individuals shouldn’t be held responsible for their actions. That’s part of growth. Part of enlightenment. Part of spirituality. But ultimately, it’s about how we accomplish that. It is possible to encourage offenders to buy into the principle of accountability. Because of the way that the system is structured, however, – with mandated prison sentences, for example – people now end up going to prison who simply don’t need to be there. The interests of political accountability have been served. Justice has not.
VII.
Police officers as well as prosecutors don’t seem to believe that a defendant’s feelings count, or, for that matter, those of their shattered families. The commission of a crime does not diminish a person’s humanity. It doesn’t minimize the right to be treated with dignity or respect. The only time that this seems to sink into the law enforcement mentality is when the tables are turned. When an officer himself, or a member of his family, or the family member of a prosecutor is charged with a crime and must sit in the defendant’s chair. In those instances, defense attorneys suddenly become warriors instead of scum; the meticulous scrutiny and protection of each legal right to which an accused is entitled no longer becomes a smokescreen to hide behind or a waste of time and money, but rather a necessary activity in order to assure that justice is done.
Selective prosecutions or selective extension of respect and dignity, based on the particular person who happens to be sitting in the defendant’s chair, (the cop’s kid made a mistake; the other guy broke the law), accomplishes little except increased contempt for the system and the people in it. The solution, as I see it, is to treat everyone in the same way, with the same quotient of consideration and the same values that enrich us all as human beings – as if we were all one family. And indeed we are, in more ways than we can possibly imagine. We share the same goals, aspirations, and life experiences. We share the same fears. We have the same dreams for our children. We also share the same feelings. All of us need to try to place ourselves in the shoes of a defendant, and imagine what it must feel like, and how we would like to be treated, and the burden, loss, and shame of enduring a harsh punishment.
Assuming my theory is correct – that we are all bound together as a family – then unfortunately, with the present way in which the system is administered, the only logical conclusion that can be reached is that we are a damaged and dysfunctional family. In addition to exercising sound discretion (instead of abusive) and good judgment, the system needs to show heart. Critics will undoubtedly see this as a sign of weakness and not a proper function of an effective criminal justice system. Yet, heart & strength, rehabilitation & retribution and judgment & mercy do not have to remain mutually exclusive goals, but can co-exist, balanced equally upon the scales of justice.
by Steve Ellingson
Steve Ellingson is a former Probation Officer from Siskiyou County, in Northern California; he now maintains a private practice as an investigator and sentencing consultant. Ellingson can be reached via The Electric Review.
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