by Josh Marquis
Special to The National Law Journal, February 9, 2004
Real justice is messy
Proving that no good deed goes unpunished, Gary Lowenthal, a law school professor, has repaid the kindness of the county prosecutor in Phoenix -- who allowed him to be a guest prosecutor during his sabbatical -- by revealing the shocking reality of plea bargaining, tired cops and less-than-perfect victims. Lowenthal spends most of the nine months working on a kidnapping case, during which he seems to identify and sympathize more with the defendant than the victim. And yet, though he may not have intended to, the picture painted by him about his experiences in Down and Dirty Justice (New Horizon Press 2003) is of a system that seems to work. In the end, the man who abducted and threatened the victim with a gun is convicted and imprisoned, aided by Lowenthal's participation.
After almost 30 years away from active practice, the world into which Lowenthal descended from his ivory tower was not what he expected. The author, who has Ivy League degrees, sniffs that, of the attorneys sharing his month-long orientation, "none of the four had attended a prestigious law school and three had grade point averages that placed them in the lower half of the graduating class."
He notes the measly $35,000 starting salary, implying that their choice of vocation is further evidence that prosecution is the rubbish bin of the legal profession. Had Lowenthal traveled the halls of state and federal prosecutors' offices across the country, he would have found that some of the best and brightest of our men and women in America have chosen to represent the community, passing up the financial rewards of private practice.
The book's title presages a discomfort Lowenthal clearly has with the untidy nature of justice in America. In a free society, justice is messy. In Malaysia, they have a very neat and tidy system: You spit on the sidewalk, the police arrest you and you get caned. It's all very orderly.
A messy reality
The reality of a criminal justice system with limited resources balanced against due process concerns is far murkier. Yet Lowenthal bemoans the fact that police investigations are less than perfect, witnesses' memories vary and plea bargaining is an absolute necessity in every jurisdiction. His greatest anguish, after repeatedly decrying what he sees as the unfair power of the prosecutor in our criminal justice system, was that during his brief tenure as a prosecutor he was bound by office policies that, rather sensibly, mandated harsher sentences for criminals convicted of using guns in their crimes. The very policies that Lowenthal found so restrictive were precisely what kept other prosecutors in his office-who he described as over-zealous-in line.
Lowenthal obviously brought to his sabbatical pre-existing expectations that the prosecutors hold too much sway. He sees the American justice system as a place where the poor and vulnerable who are victimized are in fact the criminal defendants, not the people whom they harmed. His view is shared by a majority of his colleagues in the academic community, the vast majority of whom-like Lowenthal-are disconnected from the grind of down and dirty justice.
Instead of taking some pride in playing a role in bringing a criminal to justice, Lowenthal ends his book with a lengthy diatribe directed at laws that require actual prison sentences and efforts to streamline an often ponderously slow justice system. In this way, he echoes a common theme among the criminal defense bar and opponents of the victims' rights movement, who object to mandatory sentencing as robbing judges of any discretion. Lowenthal clearly wanted to be able to apply his personal values to the case he was handling. Yet that sort of individual prosecutorial whim is exactly what the prosecutor's office policies-by which Lowenthal was constrained-seek to prevent. Lowenthal wanted to bring greater mercy to the case; mandatory rules ensured equal application of the laws for the victim.
Those who share Lowenthal's fundamental view of the American justice system as hopelessly flawed likely will find their preconceptions validated in this book. A more objective reader might well come away seeing that for all of its messiness, the justice system in Phoenix works quite well: The police arrested the right person, he was prosecuted for the crime he committed, he had good counsel who was unable to overcome the strong evidence of his guilt and then he got appropriate punishment. The only thing that seems out of place is that Lowenthal ended up visiting the man he sent to prison.
Yet in the end, it appears that justice was in fact accomplished. If this is down and dirty justice, let's all get good and muddy.