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

THE BALTIMORE 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.

Disparity between legal decrees and actual results is, of course, not new. Despite intimidating detail and liberal doses of death by stoning, Old Testament mandates seem to have been mostly honored in the breach. Much later, Roman historian Tacitus complained that "as formerly we suffered from crimes, so now we suffer from laws." Variations of this sentiment have echoed often across the intervening centuries - "Bleak House," of course and other, more recent books - "The Death of Common Sense," "A Civil Action" and "The Excuse Factory" - have continued this critical drumbeat, describing an often-dysfunctional legal system.

But Campos goes further. Legal dysfunction, he argues, has now degenerated into a kind of legal dementia. As when labor unions cripple operations by "working to rule," strictly obeying all of the work rules supposedly in force, Campos contends that "the American legal system doesn't collapse only because of a tacit understanding that its formal rules must never be followed."

The Simpson trial proved it. One of the rare cases in which the full panoply of usually theoretical legal weapons was actually available to both sides, there was "virtually no economic barrier to transforming the rule of law from classroom theory into courtroom practice." Both sides could afford teams of lawyers, dueling experts, unlimited motions. The resulting debacle, Campos suggests, "brought to mind the relative advantages of trial by ordeal."

On some issues, these two books seem to almost echo each other. For example, Estrich on the politics of crime: "Today, Democrats outdo themselves to prove that they are just as tough as Republicans. Everyone has learned the lesson of Willie Horton. No one tells the truth, and the political dishonesty is distorting and destroying the system."

Ritual dancing

Campos on Clinton "cracking down" on drugs already illegal under previous laws: "It would in truth make more sense for the President to announce he has undertaken to perform a ritualistic dance, designed to drive away the evil drug spirits. After all, it is just conceivable, empirically speaking, that the Evil Drug Spirit Dance might work. We know the legislation isn't going to work."

What might work, these provocative books suggest, is a simplified criminal justice system reminiscent of "Night Court."

Campos suggests a model: The jury would be the first 12 people in the jury pool who did not know either the defendant or the victim. The witnesses would tell their stories in their own words, without constant interruptions from lawyers and judges. Evidentiary rulings would be minimal. The attorney's modest role would be to facilitate the proceedings.

In short, these authors propose a common-sense system of justice.

And the main obstacle to attaining it?

Ironically, the main obstacle is the existing thicket of academic-inspired procedural safeguards and legal protections for defendants, designed to insure perfect - or, in Campos' view, "celestial" - justice.

David W. Marston is author of "Malice Aforethought," an analysis of abuses in law practice. U.S. attorney for the Eastern District of Pennsylvania from 1976 to 1978, he is now a Philadelphia civil lawyer.

Pub Date: 5/03/98

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