Massive Demand to
Lock Up the Innocent
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Massive Demand to Lock Up the Innocent in a Democracy

My friend is serving two life sentences without parole from age 21, for a crime that didn't happen.

My first surprise was the amount of lying in the process. It started with a dishonest detective and a news reporter with a personal connection. Pretty soon every witness was lying and deleting evidence. And then came something most people don't know exist, the jailhouse witnesses. These are felons who are coerced to claim a defendant confessed, and will take over the trial with a story even if it contradicts all other evidence.

My second surprise was that there was no institution to stop this. There is no institution in the government to deter police faking evidence, deter witnesses committing perjury in court, or deter prosecutors coercing felons to lie. Police and prosecutors can and will choose to knowingly victimize the innocent without consequence.

My third surprise is that my experience was not unique. Everywhere I mentioned my story on the street and on the web, I heard similar stories from other people. Police lied and faked evidence, people were prosecuted for crimes based on lies. And the problem wasn't that they couldn't prove it. The problem was there was nothing they could do about it, nobody cared, there was no institution to stop it even if they could prove what happened. Especially if they could prove what happened.

My fourth surprise was there is a massive demand to lock up the innocent. During the recent debate on police misconduct, I presented to people what I had learned, how people can be convicted based on lies, how it happens frequently, and how the system is designed to enable this. Over and over I got a response which I guess I had been naive not to expect: Yes, we want to lock people up based on lies. We don't care what really happened, we don't care what the truth is. We want to lock up undesirables, this is how we get them off the street and improve the world. Whether the police misconduct is accepted, and therefore whether the outcome of the mock trial is accepted, is decided outside the courthouse by an approving or disapproving mob.

I don't know why I imagined everybody would be obsessed with these corny concepts of truth and due process and fair trials and the Bill of Rights. Obviously the Bill of Rights, like most laws, was written because human nature produced something else. The people in Britain, who enforced justice in a way the Bill of Rights sought to protect against, were not aliens. They looked just like the people in the New World. And everywhere else, throughout history, the mob has preferred mock trials, or no trials, to fair trials. There is no reason people in the United States in the present day should be any different from people in other places throughout history.

I don't hope to persuade people my morals are better than their morals. There are upstanding citizens who are passionately in favor of the good, who think that who gets locked up should be decided outside trials, in a sort of popular local democratic process. If the police tell the paper the defendant is guilty, and the public decides the defendant is an undesirable, then trials are an obstacle to justice. Witnesses will be shamed for not lying. Law enforcement will be rewarded for engaging in misconduct, when it is necessary to lock up undesirables. And law enforcement will be punished through the democratic process if they don't fake evidence when necessary, to lock up those who should be locked up.

What I do hope is that we could have an honest debate about what policies we want, in a democracy. Instead of using this jailhouse-witness scam where we let felons out of prison for claiming inmates confessed, let's have a debate about whether we want a Constitutional amendment to do away with jury trials in some circumstances. Maybe the public would prefer an elected military tribunal, or a popular vote on guilt like a ballot measure with a list of the accused, in capital cases. These are people we would like to lock up, but we don't have any reliable way to do it. We have tried jailhouse witnesses and mandatory minimums and three strikes laws, but too many people seem to weasel around those. Must the mainstream of upstanding citizens be reduced to old-fashioned lying and operating in the shadows and looking the other way, to get the outcome that is good and right in a democracy?

Right now a large percentage of criminal cases (and people are reluctant to write down exactly how many) are built on the testimony of felons who are coerced to recite the prosecution narrative in exchange for reduced sentences. These are not real witnesses. These are people who are rewarded if and only if they recite the accusation as if they know it to be the truth. They have no penalty for lying in court, and in fact are rewarded only if they lie. But of course you are not allowed to tell the jury that. Again, the attitude of the public is who cares what really happened. We are locking up undesirables. We are turning them against each each other, and forcing them to lie about each other, this is fun. If their lowlife families don't like it, they shouldn't have been hanging out with lowlifes.

There is a genuine public demand in a democracy, to lock up people the mob doesn't like. So the real crime is not the crime they are convicted of, it is being an undesirable. Instead of localities hacking the process to get this result the majority wants, why can't we have an honest debate? Why can't we be fair and open, and pass a law to get what we want? Maybe it would be like a prior-convict bystander law. If you have a past drug conviction, and you are a bystander when a crime takes place, then you get 15 years. This will save us having to negotiate with felons to lie about each other. And it will of course save police having to drive around all day, in a fruitless hope to find enough actual evidence to lock up the people we want to lock up.

There is a massive demand in a democracy, to lock up the innocent, or at least those who are innocent of the particular crime they have been convicted of. I have seen it. I have heard from people who said it with no shame, who said it with pride. They said it with conviction of their own moral superiority, for wanting to get rid of the bad people, for not being too shy or too geeky to roll up their sleeves and lie or fake evidence or whatever, to get the result that is desirable for the public good. But we should be honest about what we are doing, in a democracy. Otherwise some people will lose elections, and half the people will be in great distress for not knowing why.

Our current social conflicts can be settled at the ballot box instead of in the streets, and without needing to be tied to other issues or to particular parties. Looking throughout history, I am sure the demand to lock up the innocent comes from all races and demographics. We just need to decide how we want to do it. And then it can be done more cheaply and efficiently within a system designed for the purpose it is used for, and with a lot less rancor.