Thursday, January 5, 2017


Most people who enter the criminal justice system are guilty. And that is how it should be; our law enforcement system would not be worth much if it only arrested guilty people half the time, and the remainder of arrestees were innocent. When I was in law school, one of my professors opined that only half of the people who enter the criminal justice system were guilty of anything. I thought that was a low estimate of the number of innocent people in the justice system then, and still do. It is true that the advent of DNA testing revealed that there are more innocent people convicted than was previously thought. Conviction of the innocent is a serious problem. But so is oppression of the guilty. The question is, who are those guilty people, and how should we treat them?

I’ve learned a lot about who they are from dealing with them for almost 40 years of legal practice. The main thing I’ve learned is that most of the time, there but for the grace of God go I. They are just people. It is easy to think that someone who has killed another person, or robbed a bank, or burglarized a home, or sold drugs, or snatched a purse, must be a different species from me. But she is not. She is just someone who made a wrong choice or a mistake. He likes hot chocolate in the winter and swimming in the summer. He looks out the window of his cell and enjoys watching the farmer let out his cows. My clients worry about their families, their loved ones, even about me. “Drive safe!” they say as I leave the prison—and they mean it!

Prisons these days do little to rehabilitate those who inhabit them. But the one gift they can give is unstructured time, which can allow those who are so inclined to rehabilitate themselves through prayer, study, and consideration of those they have hurt. Given the lack of foundation many of them experienced in early life, that happens more often than I, at least, would expect.

So, why should we protect the guilty? Here are some important reasons.

1. If we want to enforce moral and legal imperatives, we should abide by them.

2. We are all guilty and all members of the human family.

3. If we take shortcuts to convict the guilty, we run the risk of convicting the innocent.

4. If the guilty feel they have been treated with fairness and compassion, they are more likely to be rehabilitated.

In future posts, I will examine each of these principles individually. But for the present, it is sufficient to say that the criminal justice system exists, and should function, to protect the guilty as well as the innocent.

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