The Arizona Republic

Tough, speedy justice often is neither 
Retired jurist says the system is broken
By O. RIcardo Pimentel 

Oct. 11, 2001 
   Rudolph J. Gerber retired from the Arizona Court of Appeals in May. He sat on that court for about 13 years. Before that, he was a Superior Court judge for nine years and in the County Attorney's Office for about three years.  So Gerber has seen criminal justice up close and personal.

   Which is why his article in the spring issue of the Arizona Law Review is such an eye opener. It amounts to a scathing indictment of the justice system from someone in a position to know.

   And as such it should be required reading for every attorney considering a career in criminal law and for every law-and-order legislator tempted to get "tough" on crime.

   An inescapable conclusion after reading the article: Our justice system is broken, concerned more with expediency than justice and with appearing tough far more than being effective.

   Gerber reserves much of his criticism for this societal penchant of ours for getting tough, as reflected in mandatory sentencing, drug laws and the death penalty.

   Mandatory sentencing, for instance, has resulted in more severe sentences than deserved, the effective abridgment of a person's right to trial and virtually no deterrence. In other words, it's not working. This abridgment occurs, says Gerber, when prosecutors purposely load up a defendant with charges that carry mandatory sentences to induce a plea bargain to avoid a trial. 

   In 1976, he said, the state Legislature enacted a law that permitted prosecutors to add firearm-possession charges and then dismiss them in exchange for guilty pleas. In 1982, the Legislature increased sentences for people convicted of felonies while on parole or probation, making life imprisonment possible.

   Within a decade, the number of cases going to trial in Maricopa County fell from 10.74 percent to 3.77 percent, according to Gerber. "Severe mandatory sentences effectively make the constitutional right to trial too risky to be exercised, even for an innocent defendant (my emphasis)," Gerber wrote.

   In other words, in the name of getting tough, we've mandated tough sentences that are, nonetheless, not imposed. That's because they are more useful as guns to the heads of defendants to avoid trial.

   Consider: Ninety-five percent of all defendants now enter guilty pleas in Arizona. "When ajudication appears on the horizon, prosecutors use sentencing mandates to threaten a greater sanction to discourage it," Gerber wrote. "Our court system has become a vice: The system favors a plea and penalizes the constitutional right to a trial . . . ."

   Mandatory sentencing has been the rage, so much so that the U.S. now imprisons 476 of every 100,000 Americans, higher than any other industrialized nation. Make that 507 of every 100,000 in Arizona, the eighth-highest in the country.

   Gerber also criticizes a number of other legal monstrosities.

* The felony murder rule allows a murder charge, for instance, against a pot dealer because someone might have suffered a heart attack while witnessing the sale of a small amount of medicinal marijuana.

* On the drug war. "Thousands of youngsters are serving prison terms for a first-time, non-violent pot offenses while being guarded by uniformed tobacco and alcohol addicts." Draconian drug laws cannot be the first line of defense, Gerber argues.

* On the death penalty. "For those who do not or cannot address the moral issues, there remain the disturbing facts . . . that our capital punishment falls disproportionately on minorities . . . and sweeps some innocent defendants . . . in its wide nets . . . ."

   I know many will dismiss Gerber as some liberal, bleeding-heart former jurist.  And I am quite certain that at least the first of his solutions is a non-starter. He recommends removing criminal policy from legislators and turning it over to a non-partisan panel of experts. He calls for the appointment rather than election of all judges and law enforcement officials and simply more research to guide us as we consider the administration of justice.

   They are all suggestions with merit, though, sadly, politically difficult to achieve.

   Nonetheless, to ignore Gerber's observations and eschew any fix would be tantamount to ignoring the canary in the mine shaft.

Getting tough has really only meant getting mean - and ineffective.

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