Sunday, May 10, 2020

Michael Flynn, Windfall Benefits, Constitutional Criminal Procedure, and Race

Mark Graber

Readers of the New York Times and Washington Post are likely to reach the conclusion that the decision to drop the prosecution against Michael Flynn is abnormal, the implication being that the operation of the criminal law system in general is normal.  From a different perspective, Michael Flynn achieved the normal windfall benefit that guilty defendants routinely get from the criminal justice system.  What is abnormal from an historical perspective is the lack of windfall benefits to guilty defendants who are poor, poor persons of color in particular.

In late eighteenth century theory and practice, convicting criminal defendants was extraordinarily difficult.  At the time of the framing, a very high percentage of juries, particularly by contemporary standards, refused to convict.  Given no evidence exists that colonial and early American prosecutors were particular prone to trying innocent persons for crimes, we may conclude that a great many guilty criminal defendants got windfall benefits.  When juries were debating the fate of neighbors, persons they could to some extent identify with, or simply persons they believed were not bad persons even though they had committed bad acts, they demanded very high burdens of proof and often would not convict when they felt the act or the person did not merit the legally mandated punishment.  Constitutional criminal procedure, in short, was structured in ways that provided many guilty defendants with windfall benefits.

Similar factors play out today in high profile criminal cases, particularly when the defendant is well represented.  Juries do not like convicting their neighbors, persons they identify with, or defendants they believe are not really bad people, even though they may have done a very bad act (police are a good example).  Moreover, contemporary criminal law contains lots of safeguards that a good lawyer can use to make the prosecutor's life quite difficult.  While I have not done the studies, I would not be surprised to learn that conviction rates (subtracting for convictions thrown out on appeal) for high profile defendants who are investigated for criminal behavior resemble conviction rates for ordinary persons at the framing.  Windfall benefits, the evidence suggests, continue to be built into the structure of constitutional criminal procedure.

What is abnormal from a framing perspective is the high conviction rate, resulting from both jury convictions and plea bargains, of poor persons, particularly poor persons of color.  They are convicted and go to prison at much higher rates than ordinary defendants during the framing or high profile defendants at present.  Juries have a far greater tendency to treat them as bad persons and, hence, in practice, lower the burden of proof at their trials.  Poorly represented, they cannot fully take advantage of newly developed safeguards for criminal defendants. 

In short, Michael Flynn’s experience highlights the many windfall benefits that have always been baked into the structure of constitutional criminal procedure (consider the reasonable doubt rule).  Rather than obsess about this guilty defendant who has gone free, we might think harder about the substantial racial and class disparities in the guilty defendants who get that windfall benefits, the ways in which contemporary criminal law is not alleviating those disparities, and, to a fair degree, even aggravating those class and racial disparities that existed at the framing between guilty defendants who received windfall benefits and those that did not..

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