In defense of the criminal justice system

By , David A. Kurtz, formerly a deputy prosecuting attorney, is the public defender for indigent criminal defendants in Wenatchee, Wash.

The recent remarks of Chief Justice Warren Burger before a meeting of the American Bar Association have brought renewed attention to the problem of "crime in America." The common perception, reinforced by the chief justice, is that the criminal justice system is doing an abysmal job of coping with the problem.

This author knows from vivid firsthand experience that the system is far from perfect, but it causes me great concern to hear the endless wave of criticism directed against the criminal justice system. First, much of the criticism is inaccurate. Second, and most important, the attacks create a dangerous self-fulfilling prophecy.

The purported "softness" of the system is belied by the indisputable fact that the nation's jails are filled to overflowing. If indeed our judges were routinely letting crazed killers off on "technicalities," if prosecutors were gleefully plea-bargaining every charge down to nothing, and if the rest of the system's participants were totally ineffective, then why do we constantly need more facilities to handle the excess prison population?

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We live in a free and tolerant society. Our police, prosecutors, and judges to demonstrate compassion for first-time offenders; concern for principles of constitutional law; and, alas, a capacity for occasional incompetence. But the bottom line is clear: those who regularly flout the law invariably end up in the slammer. A criminal might beat the system once, twice, several times -- but in the end of the vast majority arem punished. Professional criminals know the truth of their axiom: "If you want to play, you have to pay."

The criminal justice system is much "tougher" than its critics would have us believe. This position is amply supported by statistics and by such incisive, detailed studies as Charles E. Silberman's "Criminal Violence, Criminal Justice" (Random House, 1978).

However, my principal objective is not to refute the exaggerated criticisms by Chief Justice Burger and others; it is to point out that the constant disparagement of the criminal justice system has serious, self-defeating ramifications.

"Deterrence" is one of the main purposes of any system of punishment, but the effectiveness of any deterrent is founded on its public perception. When the chief justice of the United States suggests that criminals are being mollycoddled, the general populace (and future criminals) are probably going to believe him. The perception grows that punishment is rare and haphazard, which simply feeds the notion among young people that crime doesm pay. Professional criminals know better; but a youngster might commit numerous crimes and adopt a lamentable lifestyle before he fully learns the same bitter lesson.

Hence, to the extent that criticism of the criminal justice system is uninformed and inaccurate, it has only one effect: undermining the system's objective of deterrence. The doomsayers proclaim a self-fulfilling prophecy. They say the system stinks, and thereby foster the smell. A more positive, and more realistic, attitude toward our efforts to combat crime would better serve the criminal justice system and the nation as a whole.

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