It feels like the criminal justice system is under siege these days.
Law enforcement officers are being vilified. Prosecutors are portrayed as unprincipled. People are questioning whether incarceration is an effective means of controlling crime.
In the midst of all this, OJ Simpson was back in the public eye with the FX series “The People versus OJ Simpson,” and the ESPN documentary “OJ: Made in America.”
I remember the 1994 murders of Nicole Simpson and her friend Ron Goldman, starting with the surreal, low-speed chase of the white Ford Bronco along a California highway, with OJ inside, threatening to kill himself, and ending with his acquittal after “The Trial of the Century.” Every step of the process was televised at home and abroad.
I was a homicide prosecutor in Washington, D.C., at the time. The district had about 600,000 residents and was about 60 percent black. It was the murder capital of the country, mostly because young black men were killing other young black men, in black neighborhoods, over drugs. My office handled thousands of cases, and hundreds of homicides, every year.
It may be hard to remember now, but OJ was an enormously popular figure. He was a Heisman Trophy-winning running back at USC and an NFL Hall of Fame running back for the Buffalo Bills, who parlayed that fame into TV sports broadcasting, movies, and ads for Hertz Rental Car. He was widely adored and a prime example of how a black man could make it big in America.
I was at work on Oct. 3, 1995, when the acquittals were announced on TV. The country’s reaction to the verdict divided along racial lines. The witnesses in our waiting rooms all stood and cheered. On the other side of the walls, we slumped in our chairs, demoralized by what seemed such an obvious miscarriage of justice.
The Los Angeles district attorney’s office got outmaneuvered from the start. Prosecutors were goaded into giving up the grand jury and charging Simpson by public, adversarial, preliminary hearing. They called a key witness, Mark Fuhrman, whose racism bolstered the defense theory. They conducted a demonstration that was destined to backfire, inviting Simpson to try to put on a blood-stained glove. They over-tried the case, taking more than eight months to get it to the jury. By the time they got to closing arguments, the prosecution was on the defensive.
The defense, led by Johnnie Cochran, played the race card by making the case a referendum on a criminal justice system rushing to judge black men. The jury acquitted OJ because of a combination of his celebrity, the sense that the system was prejudiced, and wariness about the 1992 acquittals of the officers who beat Rodney King and the riots that followed.
No one was served by the result, including OJ. His life spiraled down. He lost his family, his good-natured image and his fortune. In 1997, he was found civilly liable for the deaths and ordered to pay millions in damages. In 2008, he was convicted of burglary, robbery, kidnapping and assault for stealing sports memorabilia. He is serving a 33-year prison sentence.
The Black Lives Matter movement certainly doesn’t believe that OJ’s acquittal 20 years ago cured the system.
One of my former colleagues at the Office of the U.S. Attorney in D.C., law professor Paul Butler, is back in the news, too. Butler has reprised his argument that black jurors should acquit young black men in drug cases because the criminal justice system is racist. He also says jurors should acquit in any case where they think the police or prosecution “have crossed the line.” Butler even traces his argument back to current founding darling, Alexander Hamilton.
The Cochran-Butler models of criminal justice don’t make sense. They don’t do justice and they don’t control crime. Race (much less celebrity) is no more proof of innocence than it is proof of guilt. You can’t rectify one injustice by committing another. You only perpetuate the cycle.
I prefer the traditional model for controlling crime with individualized responsibility. It starts with the assumption that if a person understands right and wrong and can control their own behavior, then it is fair to expect them to obey the law and to hold them accountable for their actions. If they commit a crime, they should be punished.
And the punishment should fit the crime. That vindicates the rights of the victim and restrains people from taking the law into their own hands. It sets an example that encourages others to abide by the law. Meanwhile, the criminal’s acceptance of responsibility for their crime is the first step toward their own, personal rehabilitation.
If we apply those principles to everyone – black, white, civilian and law enforcement – then we will have a relatively peaceful, orderly and fair society.
Halsey Frank is a Portland resident, attorney and former chairman of the Republican City Committee.