By David Hoffman
While doing research for this article, I began to review some old textbooks from my teaching days, and happened across a theory, initially developed by some sociologists, to explain why and how crime exists: the Social Control Theory.
The fundamental underpinnings of the Social Control Theory are that the inclination towards deviance (meaning nonconformity to social norms) and crime is actually a normal part of human nature; consequently crime prevention programs should not focus on why some people become criminals, but instead on why others do not.
Critics of the Social Control Theory contend that its almost fatalistic embrace of biological determinism not only undermines the concept of "free will," it also fails to explain why people often feel guilt or remorse after committing antisocial or criminal acts.
In response, Social Control theorists argue that, while guilt and remorse may indeed be present during early stages of criminal activity, human beings have a remarkable (and, as this article contends, dangerous) ability to neutralize any guilt they feel about their wrongdoings through the use of rationalizations.
Soon I began to realize that the Social Control Theory supports a maxim of mine that I've frequently proffered in many Pravda.Ru articles over the past ten years: human nature is basically inclined towards evil; therefore most of the world's conflicts are not caused by clashes between good and evil, but between what degrees of evil are considered to be "acceptable," and what degrees are not.
There is some historical evidence to support this maxim. America's founding fathers, having fought and won a war against a monarchy, saw how easily evil can manifest when too much power is concentrated into too few hands; thus they created a government with three branches-legislative, executive, and judicial-in the hope that each branch would "check and balance" the power of the others.
By contrast, theoretical communism was created on the belief that human nature was basically good; that people would be willing to labor not for their own benefit, but for the betterment of humanity as a whole; that human beings will act communally and share their resources to ensure that everyone has enough and nobody has too much; and that distribution of these resources would be based upon one's need, instead of upon one's abilities.
Logic naturally dictates that if human beings are fundamentally good, no check and balance system is required. The result was that communist regimes (or, perhaps more accurately, regimes that claimed to be communist) produced some of history's worst dictators.
America, thanks to its "check and balance" system, has historically avoided this drift into dictatorship. But that is beginning to change. Americans seem to be increasingly accepting of the dismantlement of everything the founding fathers sought to install. Some examples: in 2010, the United States Supreme Court removed democracy from the hands of the voters by declaring, in its Citizens United decision, that corporations are "people" for purposes of political speech. The result has been that numerous state governments (like those in Wisconsin, Indiana and Michigan) and the legislative branch of the federal government have become nothing more than venal cheerleaders for the interests of big business and billionaires; the executive branch, using as its rationalization the "war on terror," has given unchecked power to unaccountable, undemocratic entities like the National Security Agency (NSA), the Federal Bureau of Investigation (FBI), and the Central Intelligence Agency (CIA)-entities that, during the course of their sordid histories, have often engaged in criminal activities and human rights violations; and the judicial branch has become nothing more than a rubberstamp to excuse or rationalize the abuses, tortures, injustices and murders this unchecked power has spawned.
As I thought more about the Social Control Theory, I came to realize that the situational ethics it inspires is the stuff that hypotheticals, television shows, and movies are made of-the "what ifs?" if you will: If you were starving, would you kill another person in order to eat? If you were told to kill an innocent stranger, would you do so to save the life of a friend? If you knew you could get away with it, would you rob a bank if you were poor? Would your decision be different if you were rich?
This list could go on ad infinitum, but ultimately what these "what ifs" are really asking is whether social controls designed to inhibit deviant or criminal behavior can be effective in all environments and circumstances, or if they are only effective in certain environments or circumstances, or if changes in environments and/or circumstances are simply used as excuses to engage in deviant or criminal behavior that one had the proclivity to engage in all along?
So I decided to begin my analysis by examining America's legal system, particularly its criminal justice system, where external social controls are arbitrarily enforced and often nonexistent, and where internal social controls, such as conscience and personal integrity, are considered to be sufficient to prevent abuses of power.
This analysis took me back to my law school days, when, during my second year, I personally witnessed how easily those in power in the criminal justice system would use rationalizations to excuse injustices. One of my professors also worked as a deputy prosecutor, and, at the beginning of one class period, she announced she was probably going to be late the following week because a case she was prosecuting would be going to the jury. She concluded by saying, "They will probably deliberate about an hour and find [the defendant] not guilty."
This piqued my curiosity, so I asked her why she believed the jury would respond this way. She explained that the defendant was on trial for committing a sex offense, but the testimony was making it evident that the alleged victim, a known crack addict, had simply manufactured the sexual abuse accusations out of anger after the defendant refused to give her money to purchase drugs.
The following week this professor arrived on time and announced, "I was wrong. They deliberated a half-hour and found him guilty. Oh well!"
After class I approached her and said, "If I were to kidnap an innocent person off the street at gunpoint, and restrict that person's freedom of movement for several years, I would undoubtedly be labeled a criminal once I was caught. Yet somehow you believe your actions are excusable simply because you chose the legal system, instead of a gun, as your weapon. By your own words, you possibly sent an innocent man to prison for committing a crime that is even frowned upon by other inmates, thus not only taking his freedom, but also endangering his life. And your only response is 'Oh well!'"
Predictably, her rationalizations began: "The alleged victim was entitled to her day in court"; "I was just doing my job"; "It was the jury who convicted the defendant, not me." But she became silent when I remarked that it was her office's decision to take the case to trial in the first place; that the Rules of Ethics state a prosecutor's job is to do justice, not pursue convictions at any cost; and that nobody is entitled to a day in court for making false accusations.
Although my statements brought tears to her eyes (which wasn't my intention), to this day I don't know if they made a dent in her thinking. But this early exposure to the use of rationalizations to defend injustices made me realize that the thought processes of those responsible for enforcing the law are often little different from the thought processes of those who break it.
What makes the thought processes of those who enforce the law even more dangerous, however, is that criminals, despite the rationalizations they may use to "justify" committing a crime, still have to fear arrest and potential punishment for their deeds, but prosecutors and judges, no matter how egregious the injustices they've perpetrated or ludicrous the rationalizations they've used, are insulated from most legal repercussions by "absolute immunity doctrines." And rationalization plus immunity equals the reality that oftentimes the most callous, conscienceless and remorseless criminals in a courtroom are the ones claiming to uphold the law and the ones draping themselves in black robes.
Prior to this law school experience, I had, like most Americans unfamiliar with the legal system's machinations and corruptions, bought into the mythology that law enforcement officers, judges, and prosecutors are infallible crusaders for truth and justice, while defense attorneys are the scum of the earth for incessantly trying to free the guilty.
I recall how well this phenomenon was addressed years ago in an episode of the excellent legal drama The Practice, when an angry defense attorney asked a judge, "Why is it when people are acquitted it is never because they are innocent, but always because their defense attorney 'got them off,' yet when a prosecutor convicts an innocent person it's always called 'a mistake?'"
Due to the abysmal lack of external social controls on prosecutors, they have almost unbridled power to charge people with crimes based upon scenarios they've fabricated, even when little or no evidence exists to support these scenarios. And if the evidence should ultimately discredit their original scenario, prosecutors are incessantly allowed to alter it, rather than admit they were wrong.
While I will cite several examples in this article, one of the most egregious that comes to mind is the case of Clarence Elkins, an Ohio man who was wrongfully convicted of rape and murder. No physical evidence linked Elkins to the crime, just the eyewitness testimony of his six-year-old niece, who made the identification shortly after she had been sexually abused by the perpetrator and traumatized from finding her grandmother's body.
Years later, when DNA evidence found at the crime scene was tested, none of it belonged to Elkins. Yet prosecutors, who hadn't even bothered to test this evidence prior to putting Elkins on trial, argued, and an idiot judge agreed, that his conviction should be upheld because it had not been based on DNA. In other words, by failing to do their jobs, prosecutors were ableto successfully argue that their failure provided the legal basis to uphold a wrongful conviction.
Later Elkins's wife, with the aid of an Innocence Project attorney and Elkins himself, was able to secure and match the crime scene DNA to a suspect-a neighbor of the murder victim. Tragically, after committing the crimes Elkins had been convicted of, the real perpetrator had gone on to sexually abuse more children, and was serving time for these offenses in the same prison as Elkins. Elkins had been fortunate enough to retrieve a cigarette butt this perpetrator had discarded that retained traces of salvia.
In a television documentary on the Elkins case, this Innocence Project attorney explained why he was reluctant to share the name of this suspect with prosecutors: "My immediate thought was we have to keep this absolutely quiet, because what had happened in other similar cases in other states is, when prosecutors learn that this is the case, they would go to the other person . . . and say, 'Hey we know you committed this crime with Clarence Elkins. We got your DNA. You're looking at the death penalty. So explain to us how the two of you did this if you want to cut yourself a break.'"
This is not an exaggeration. Prosecutors who vehemently insist during a trial that the defendant and the defendant alone committed a crime, routinely invent phantom accomplices when evidence comes to light that contradicts their original contentions.
Evidence of this practice can also be found in an episode of the crime drama, Unusual Suspects, entitled "Innocent Bystandards." In this episode, a bloody palm print was found at the scene of a double murder. During the police investigation, an "eyewitness" claimed she had seen two men lurking outside the home shortly before the murders occurred. Two men matching her description were soon arrested. The problem seemed to be that the DNA from the palm print failed to match either of them. But, to creative prosecutors, this was no problem. They charged these two suspects with the murders, alleging that they had been able to enter the house, participate in two bloody murders, and yet were so careful that they left no DNA behind, while an unknown "third" suspect, whom the "eyewitness" had not seen, was careless enough to leave a bloody palm print.
Fortunately for these two suspects, a DNA match to the real murderer was obtained right before they went to trial, and the charges against them were dismissed. I say fortunately, because had the two men been tried and convicted before the match was obtained, prosecutors, in keeping with the practice described above, would undoubtedly have continued to insist they had some involvement in the murders.
But the creation of imaginary phantoms was even more ludicrous when a prosecutor in California filed murder charges against serial killer Gerald Gallego's brother and several of his friends, even though not a single shred of evidence, DNA or otherwise, linked any of these individuals to the crime. Since Gerald Gallego was in jail awaiting trial for committing similar murders, the prosecutor contended that Gallego's brother and his "accomplices," all members of "a highly sophisticated criminal gang," committed "copycat" murders in the belief they would cast doubt on Gerald's guilt. By the time the truth was discovered and the real killer was caught, these individuals had already spent several months in jail, all because of a prosecutor's fantasy.
Sadly, not even allegations of wrongful convictions based upon torture will disturb the prosecutorial conscience. This was evidenced when allegations arose that, for a period spanning almost twenty years, former Chicago detective Jon Burge, and those under his command, routinely tortured suspects, primarily African-Americans, to extract false confessions. Instead of investigating or denouncing Burge, prosecutors visited some of his imprisoned victims and advised them that they would only be released if they agreed not to sue the city for their years of wrongful incarceration, and a "special prosecutor" refused to indict Burge on state criminal charges, claiming that any prosecution was barred by the Statute of Limitations.
In another Chicago area case, that of the "Ford Heights Four," prosecutorial misconduct was just as despicable. Four African-American men were charged with a vicious double murder (charges against one, Verneal Jimerson, were later dropped), and the remaining three were convicted based upon the coerced and perjured testimony of one witness. Two were given life sentences, and the third, Dennis Williams, was sentenced to death. Later, this witness admitted her perjury, and was sent to prison on this charge, in addition to being an accessory to the original crime.
But when Williams was granted a new trial, prosecutors offered this witness a "deal": She would be released from prison if she reverted back to her perjured testimony during this new trial. Murder charges were also reinstated against Jimerson, and this time both he and Williams were convicted and sentenced to death.
Eighteen years later, according to a report on Nightline, even after DNA had revealed that all four men were innocent, prosecutors, in an unconscionable act of depravity, still tried to have Jimerson and Williams executed by telling the two men serving life sentences that their release was contingent on them giving statements claiming Jimerson and Williams had actually committed the crime. To their credit, and in what can only be described as an act of courage, they refused, and with their refusal demonstrated more integrity than the prosecutors who wrongfully imprisoned them.
Of course, no mention of Chicago area racism, corruption, and injustice would be complete without mention of the Nicarico case, where police officers and prosecutors also used perjured testimony to send two innocent men to death row.
And no discussion of prosecutorial fantasy and depravity would be complete without including Ed Jagels, the former Kern County, California prosecutor who, during the 1980s and 1990s, convicted twenty-five innocent people of child sex abuse charges.
According to an article in Reason Magazine (December 21, 2009), Jagels initially won election to the prosecutor's office after a colleague of his "illegally lifted" a confidential file from the county courthouse containing information that Jagels subsequently used against his opponent. This colleague went on to become a judge, and undoubtedly has since sentenced people to jail for the very type of crime she herself committed. And, like many prosecutors who care more about convictions than justice, the people Jagels targeted in the abuse cases were almost always poor, and thus easy targets because they were unable to afford defense attorneys and expert witnesses to refute his allegations.
Despite these twenty-five wrongful convictions, and the irreparable harm Jagels also did to the children who were duped into proffering false testimony, in some cases against their own parents, he was constantly reelected, and served as prosecutor of Kern County for twenty-six years. And, instead of being outraged at the injustices he perpetrated, the idiots who repeatedly elected him even joked that Kern County's informal motto was, "Come on vacation, leave on probation."
As the Reason article also explains, Jagels was never sanctioned for his actions. Instead he was rewarded for them, by serving as president and director of the California District Attorneys Association. In fact, given his record, it is surprising that (for reasons soon to be explained) he has not yet been hired by Eric Holder's so-called "Justice" Department.
Even when police and prosecutorial misconduct is addressed in the criminal justice system, the outcomes are usually farcical. After Chicago's corrupt and racist political machine refused to indict Burge or any of his co-torturers on state criminal charges, Burge was subsequently charged and convicted in federal court for lying under oath about the torture. He received a "slap-on-the-wrist" sentence and continues to draw a government pension. Chicago's Fraternal Order of Police Organization (FOP)-who had fought to prevent a street from being named in honor of the late Fred Hampton, the Black Panther leader the Chicago police extrajudicially executed in 1969-wanted to "honor" Burge in a Chicago area parade, and even paid his legal expenses.
And when police and prosecutors went on trial for their misconduct in the Nicarico case, a jury not only acquitted them, several jury members actually partied with them afterward, as if getting away with conspiracy to commit murder via wrongful execution was something to celebrate.
Some may wonder why prosecutors engage in such criminality. The answer is simple: because they can. Why should they have even a modicum of concern about discovering the truth when they know they are insulated by ludicrous immunity doctrines that serve as little more than invitations to criminality, and when they know that by the time a wrongful conviction is discovered they will have already been elevated to a higher government office, or be earning a lucrative salary in a private law firm, or have become judges? (Most judges, appointed or elected, are former prosecutors, because defense attorneys are usually viewed as being "too soft on crime").
To Be Continued
David R. Hoffman
Legal Editor of Pravda.Ru