Rendering Judgment on Criminal Justice

By Beichman, Arnold | The Washington Times (Washington, DC), December 6, 2001 | Go to article overview

Rendering Judgment on Criminal Justice


Beichman, Arnold, The Washington Times (Washington, DC)


Byline: Arnold Beichman

Macklin Fleming has been a defense counsel, prosecutor, trial judge and appellate justice. In retirement with time to reflect and write, he has become a severe but scholarly critic of our criminal justice system.

In its preoccupation with "perfect procedure," the criminal justice system, he argues, has, thanks to judicial activism, forgotten its reason for existence - to safeguard life, person and property. The system, he says in his fifth and latest book, "Perfect Justice," is paralyzed because of the judiciary's unceasing hunt for perfectibility in the judicial process. Here are some of his findings which are calamitous in their implications:

* Cases have been reviewed by up to 12 different courts, tried as many as five times and have dragged on, believe it or not, for 20 years.

* Criminal trials have been converted from adjudication of the defendant's guilt or innocence to issues of competency of judge, jury, prosecutor, defense counsel, news media, police.

* Criminal cases have taken up to seven years just to get to trial. The trials themselves can go on for a year or more.

* Jury selection can take up to five weeks. The ideal of "perfect justice" came on the scene in the 1960s. Its supporters contended that effective enforcement of criminal law posed a threat to personal liberty and equality and could lead to government oppression.

That new ethos clearly resulted in an unbearable consequence during the following 20 years: the tripling of major crime rates per 100,000 inhabitants. Despite public outcry and the rise of self-help in the form of neighborhood watches, private patrols and passage of stricter laws against crime and increased appropriations for fighting crime, says Judge Fleming, "These changes had little perceptible impact on the volume of crime." How come? The answer:

"The criminal law is a three-legged stool whose legs are legislative, enforcive and adjudicative. In its adjudicative leg, i.e., the courts, little change has occurred during those years of ferment. As a result reinforcement of the other two legs of criminal law had little effect on the volume of crime or on major crime rates, which remained at high levels throughout the 1980s, and the instance of violent crime continued to rise."

By 1990, the United States Supreme Court in a series of decisions began "to recognize the impotence of theory at variance with fact . …

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