Chris Powell: The fictions of the Conn. justice system
MANCHESTER, Conn.Maybe, as the ancient Greeks wrote, even God can't change the past. But who needs God when you've got Connecticut's General Assembly and Judicial Department? For they long have enacted and enforced laws to conceal arrest and court records and even to allow people to swear under oath that they have never been arrested, though they have been.
It's a consequence of society's schizophrenia about crime and state government's failure to appropriate money equal to the crime it has legislated. For there's only as much crime as government wants to have, only as much as it defines.
On some days elected officials want to get tough on crime, defining more offenses and requiring more severe punishments. On other days they are shamed by the damage the law does to criminal defendants and want to reduce it.
There is a kernel of fairness here. People who have been acquitted or accused but not convicted should not be presumed guilty, though of course they often are, and the public, largely indifferent to due process of law, may assume that mere arrest is as good as guilt.
But in Connecticut that assumption is usually correct, and it is encouraged by the failure of the criminal-justice system to deliver a clear resolution in most cases, since nearly all cases end inconclusively: in expiration of the time allowed to prosecute (13 months from the prosecution's filing a "nolle," a decision not to prosecute but not to drop the charges either); in shady plea bargains that, sometimes in exchange for testimony helpful in prosecuting someone else, discount the charges brought by the police; and probationary devices that not only fail to find guilt or innocence but also put the record of a case beyond public review, devices like the pre-trial probation euphemistically named "accelerated rehabilitation."
Any observer taking these judicial outcomes seriously would have to conclude that most arrests in Connecticut are mistaken or grossly overstated and that the police are overwhelmingly incompetent or vicious. Thus by default the reports of Connecticut's news organizations have become the best available records of crime.
As a result many criminal defendants, including some who have been squarely convicted, are now so shameless that they demand that news organizations remove arrest reports from their Internet sites, since the accessibility of arrest and conviction information impairs people's employability and social lives -- as well it should.
A Greenwich woman arrested on drug charges in 2010 has even been suing the news organizations that reported her arrest, on the grounds that their reports became falsely defamatory when the prosecution let the charges against her expire after 13 months. Last week a federal appeals court rejected her claim, holding that while Connecticut's criminal records concealment law creates "legal fictions" by pretending that certain events didn't happen, the law "cannot undo historical facts to convert once true facts into falsehoods."
That is, in Connecticut fiction is permissible for the criminal-justice system. Only news organizations must stick to the truth.
Of course this doesn't mean that all arrest information provided by police and reported by news organizations is accurate, just that news organizations have the absolute and constitutional right to report arrests -- and indeed that they must report arrests lest police gain the totalitarian power to make secret arrests.
Short of the public's appreciating due process of law more, there's no perfect solution here. But two changes might make criminal justice in Connecticut a lot more honest.
Inessential criminal laws, especially those involving drug offenses without a victim, could be repealed. And probation concealing criminal records could require a defendant to admit that he did something wrong, if not everything he was accused of, with "accelerated rehabilitation" being stripped of euphemism and renamed "let off." Chris Powell is managing editor of the Journal Inquirer, based in Manchester, Conn.