When I was first introduced to the Magna Carta when I was in school, it made no sense to me. I just couldn’t get my head around the idea that at one point, the King of England was literally beyond the law. Because that’s basically all that the Magna Carta says: you can’t just kill us. (“Us,” of course, being the feudal lords, not the “little” people.) This is interesting, because I often argue that today, the United States is moving toward a feudal system. But at least we have rights and no one is above the law, right? Well, maybe not.
After O. J. Simpson was acquitted of murder, many people I knew groused about how he only got off because of his million dollar legal defense. I was not a fan of Simpson, but I countered this argument. The problem was not that Simpson got a great legal defense; it was that not all defendants get that kind of legal defense. Under normal circumstances, it is the prosecution that basically has unlimited resources. It was really nice to see things evened up and that is the way it should always be.
That subject has come up again in the trial of George Zimmerman. Matt Yglesias wrote a brilliant article, What if George Zimmerman Had a Public Defender? His conclusion is that in that case, Zimmerman wouldn’t have even gone to trial. He would have done as 94% of all those with state charges have done: he would have pleaded down and taken a manslaughter charge. His point is not that justice would have been done in that case or even that it was done with his good defense. No, his point is more general about the state of our justice system.
Yglesias asks the question, “Why has no one been indicted for the financial crisis?” And the answer is basically: because those guys won’t plead. If you thought the defense that Zimmerman bought for $300,000 was good, you ought to see the kind of defense that $10 million would buy. And the truth is that our “justice” system is not set up to deal with defendants who can mount a vigorous defense. On the federal level it is even worse: 97% of the cases are pleaded.
This makes me wonder if we aren’t further toward a feudal system than I had previously thought. It isn’t that the rich can’t be convicted of crimes. It is just that the government doesn’t even much try. Our laws and institutions have grown so long in the tooth that they simply can’t handle prosecuting people who don’t lay down. And the only people who can afford to fight back are the rich. So we are left with a system where we have rights and opportunity in theory. But as a practical matter, we are no better off than we were in the 13th century.