Evil in the American Justice System
Reducing the Amount of Evil 

Evil won't go away.  We can, however, reduce the frequency and severity of its occurence.


The diffusion of power in the United States has proven to be, as James Madison imagined it would, a powerful check on evil and injustice.  When the zealotry or shortsightedness of one branch of government produces injustice, therefore, there remains hope that another branch may see fit to correct it. When an individual state government becomes captured by a group that might deprive others of their basic liberties, one can look to Washington for possible relief.  Even within the Executive Branch  of the federal government, the political muscle of one agency can counteract another that has become beholden to special interests.  To be sure, these checks on injustice are much more likely to have real effect when the victims of the injustice are themselves persons with political clout, or the focus of media attention, or so numerous and visible that their suffering can hardly be ignored. 

   Although the effects of evil cannot always be erased, future injustices might be prevented, when news of injustices flows freely and there are concerned people to receive it.  CONTINUED

1.  Promote tolerance through free speech. Protecting the speech we hate makes us more tolerant people in general--and tolerant people are less inclined to develop the "us versus them" mentality that is often associated with evil.

2.  Pay attention to consequences. Easier said than done, but a constant focus on the human consequences of decisions--a thoughtfulness--is the most important key to avoiding evil.

3.  Reduce career incentives that lead to an underweighing of human consequences.  For example, prosecutors should be rewarded based on how well they serve justice, not on their won-loss records.

4. Facilitate interaction between legal decisionmakers and the persons affected by their decisions.  The more interaction that occurs, the greater the opportunities for empathy to develop and for the human consequences of decisions to be fully weighed.  Expand the discretion to be lenient. 

5. Facilitate the development of empathy in homes and in schools. Promote strong  families and encourage new programs in schools to develop the pragmatic art of living well.

6.  Choose heroes wisely. Hold up those who have served justice, not those who have achieved fame or financial success.

7.  Maintain a dogmatic belief in objective value. The central values of western civilization--mercy, truthtelling, respect for parents and elders, duties to children, justice, equality, magnanimity, reverence for life--should be accepted, not questioned.


   For example, news of the implementation of Zero Tolerance was widely publicized (the seizure of $ 2.5 million yachts is a good story and one that powerful interests wanted to get out). Within weeks after it began, members of Congress grilled Commissioner Von Raab and others about what generally was perceived as an extreme and indefensible policy.  Legislation was hastily introduced to provide defenses for "innocent owners of vessels seized for drug violations."  As a result, a modicum of reasonableness soon crept into Zero Tolerance. 

   A judicial conference study of the effect of mandatory minimum sentences has prompted proposals to repeal or modify provisions in the Anti-Drug Abuse Act.  It is not just the individual injustices, such as the case of Richard Anderson, that have brought calls for reform.  As prison populations grew, concerns over spiraling prison costs rose as well. Over half of all federal prisoners are now serving time on drug charges, and the percentage is increasing.  Drug cases represent seventy to eighty-five percent of all  federal cases in some jurisdictions, and civil litigation is being pushed off the docket.  The neglect of business litigation is beginning to squeeze important interests who otherwise would not shed tears over the plight of drug mules.  Reform at some date thus appears possible. 

 In the instances of Project Looking Glass and the Fifth Circuit's "significant injury" test in prison brutality cases, it was the Supreme Court that redirected the misguided programs.  Project Looking Glass was effectively killed when the Court ruled that government implementation of Looking Glass constituted entrapment. The possibility of continuing Project Looking Glass was further lessened by the media attention the Jacobson case received, including a segment on CBS's Sixty Minutes.  Keith Jacobson became more than a name on a legal document.  He was a sympathetic, slow-speaking, middle-aged farmer whose image came into millions of living rooms.  It became more difficult to be indifferent to his plight. 

   The Court's rejection of the "significant injury" test in prison brutality cases points to two important differences between the Supreme Court and courts of appeals.  First, docket management is a concern of a different sort for a court whose review is discretionary, not mandatory.  Second, the Supreme Court, although in some ways even farther removed than the courts of appeals from the parties whose cases it hears, has the resources, the committed personnel, and the institutional integrity to give a greater hope that it is a repository of justice than intermediate federal courts.  Justice always?  Of course not.  But in comparison to the courts of appeals, it is a better bet. 

   Concern about justice is the surest way to counter evil.  We must seek judges who believe passionately in the importance of individualized justice.  We should seek judges who understand that it is their job to  decide cases, and who do not become obsessed with docket management goals.  We should elect politicians who are willing at least to balance concerns for justice with concerns for their own electability.  We should promote openness among those who are closest to injustices, so that their revulsion is comprehended by those in a position to remedy the situation.  We should safeguard the right of the media to report injustices, including enabling the media to access persons and documents that allow a more complete understanding of the government's role.  Above all, we should strive to keep the "truth channels" open and avoid being swept away by the  tides of temporary enthusiasms.