Is U.S. justice a form of insanity?: BOOKS: JURISPRUDENCE

May 03, 1998|By David W. Marston | David W. Marston,SPECIAL TO THE SUN

In our history, racism has clearly made it too easy to convict people. But it can also make it too hard. The man who raped me when I was 21 deserved to be punished without regard to race or racism. Whatever happened to him in his life, he was still %J responsible for what he did to me. That much, at least, I always knew."

At once coolly analytical and emotionally supercharged, it is an extraordinary statement, especially because of who said it: Susan Estrich. In 1988, she was the national manager of the Dukakis presidential campaign, a liberal run doomed by the candidate's soft-on-crime shrug after a black murderer named Willie Horton, enjoying a weekend pass from a Massachusetts prison, violently raped a Maryland woman. (Estrich should have been the candidate. Asked later what Dukakis should have done about Willie Horton, she replied crisply: "Kept him in prison."

Now a law professor at the University of Southern California, Estrich serves up more surprises in her new book, "Getting Away With Murder: How Politics Is Destroying the Criminal Justice System" (Harvard University Press, 161 pages, $19.95). Surveying the post-O.J. Simpson legal landscape with acuity, she covers much of the same territory as Colorado law professor Paul F. Campos in his new book, "Jurismania: The Madness of American Law" (Oxford University Press, 198 pages, $23). While Estrich is not as cheerfully iconoclastic as Campos - legal academics, he opines, inhabit "an irony-free zone," an observation that should make him persona non grata in faculty clubs across the country - they share common, sometimes startling, insights.

For example, Estrich, long a liberal's liberal, admits that a central objection to the death penalty (disparate racial impact) "doesn't even persuade me anymore," and rejects the currently fashionable "abuse excuses" claimed by battered wives and children (e.g. Menendez brothers). Campos, coming from everywhere on the political spectrum, contends that "law professors of a certain age" suffer from "a collective case of arrested emotional development" in their continuing worship of the Warren Court. He describes the revered former chief justice "with his grandfatherly shock of white hair" as a "paternal figure in comforting ceremonial garb - a sort of juridical Santa Claus - who goes about dispensing justice in much the same way reformed misers in Dickens shower pounds and guineas on everyone they meet."

American jurisprudence, these books suggest, has become so dysfunctional that the old liberal-conservative labels have lost their meaning. It's not yet clear where the new lines will be drawn. But when the stones crashing through the windows of legal academia are being tossed not by the lawyer-hating public, but rather by two respected, poles-apart members of the priesthood, the legal elites inside and everywhere should not only take cover, but also take note.

Picking through the vast tangled web of American jurisprudence, both authors conclude that the law that seems to be working best is the law of unintended consequences. Consider:

* Defendants' rights in American criminal trials are protected by the most extensive due process and evidentiary safeguards in human history, which turn out to be about as useful as flood insurance in the mountains, since more than 95 percent of all criminal convictions are obtained without a trial. The legal

intelligentsia, Campos contends, is committed to a "celestial" degree of justice, which is in practice so expensive that only the rich can afford it.

* In a chapter titled "The Long Shadow of Willie Horton," Estrich argues that mandatory sentences and punishment by slogan - "three strikes and you're out" - has Americans spending "more and more money locking up less and less violent people." Moreover, some of the most violent criminals - including the notorious kidnap-killer of California teen Polly Klass - are actually freed by mandatory sentencing laws, when courts or legislatures move to reduce the prison overcrowding they cause.

* The mania to regulate all human interaction, driven by legal theories Campos calls "a form of mental illness," has led to the absurdity that the same act may be at once protected and prohibited. For example, a T-shirt with a sexist slogan worn by an employee is protected under the First Amendment, and also actionable for creating a hostile work environment. Should - or must - the employer take any action? No and yes.

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