The Real Legacy of the OJ Simpson Trial - You Can Buy Your Way Out of Jail

Human Rights

Twenty years ago this week, the OJ Simpson murder case began. It ended, of course, with a not-guilty verdict that brought into sharp, cable-TV focus the gaping racial divide in the American criminal justice system. It is an over-simplification to say that white people gasped in shock while black people cheered, but many people in the African American community clearly felt that Simpson's acquittal represented a rare moment of almost real justice.

Considering that, to this day, black Americans are stopped, frisked, arrested, charged, sentenced and even executed at higher rates than any other racial group, the reaction was more than understandable. It still is.

But if the OJ verdict has opened our eyes to anything about the color-blind letter of the law, it should be this: a black man's check book is just as good as a white man's check book when it comes to putting together a legal team. In the two decades since that trial made us pay attention to court procedure again, bonds have skyrocketed, public defender caseloads have become insurmountable, and defendants who don't have enough money – or not enough of it – aren't always innocent so much as on the way to being proven guilty.

Who ends up in prison and who walks free is a black-and-white issue, sure, but it is increasingly a matter of green.

I don't mean to suggest that our justice system is so flawed that a wealthy person can buy himself an acquittal - expensive attorneys didn't help the Menendez brothers or Scott Peterson or even Martha Stewart. But as Jonathan Rapping, founder of the public defender group Gideon's Promise, told me this week:

Money determines who sits in jail pre-trial. It determines who takes a plea deal, it determines who gets to have a trial and it can influence the outcome of a trial. This is not how our legal system is supposed to work.

Just look at the case of Jonathan Fleming, a Brooklyn man who was released from prison this spring after serving nearly 25 years for a murder he did not commit – it took place in New York while he was on vacation in Florida. Fleming was finally exonerated – with $93 in his pocket, as you can see from the Guardian video above (ED note: See the video embedded in Guardian story here) – when "new" evidence surfaced, including his phone bill from a Quality Inn in Florida.

Overzealous prosecution and racial bias may have played a role in this and many other wrongful convictions between OJ and today, but sometimes all it takes to prove innocence is one piece of paper – a big needle in a very searchable haystack. Think about it: if the Jonathan Flemings of the world could afford a Johnnie Cochran or a Robert Kardashian, do you think it would take 24 years, seven months and 20 days to set them free?

In theory, the US justice system, often hailed as the best in the world, is heavily weighted in favor of defendants: reasonable doubt, a unanimous jury, a quick-and-speedy trial, the right to counsel, and all that. What more could an accused person ask for, right? But the odds are stacked against defendants – especially poor ones – because the system, beautifully designed as it was, is cracking under its own weight.

In the past few decades, before but especially after the OJ verdict, tougher law enforcement measures and the war on drugs have led to a more than tenfold increase in our prison population without any corresponding expansion of the public defense system. Considering that80% of people funneled through our courts rely on court appointed counsel, this is not a small problem. We have a criminal justice system that is not living up to its potential in four out of five cases.

Public defenders today are dealing with caseloads that far exceed the recommended federal maximums established in 1973, and they're cutting back on case spending because of it. "No matter how zealous, talented or passionate an attorney is," says Rapping, "they cannot perform at their best when they are overworked and under-resourced." Pit that lawyer against a team of high-powered attorneys with their accompanying "expert" witnesses, investigators, scientific tests, gloves and all, and someone who relies upon the Sixth Amendment doesn't stand a chance.

Not that the courts need a conviction to put poor defendants in jail in the first place. As Nazgol Ghandnoosh, a research analyst with the Sentencing Project, told me:

We have really high rates of people in this country being charged and detained in jail until they are processed, simply because they can't afford to make bail.

The bail dilemma has gotten markedly worse post-OJ: in 1990, money bonds were set in 53% of felony cases; by 2006, that figure had jumped to 70%. It's not just fundamentally unfair that defendants have to languish in jail because they can't buy their way out – it also weakens their legal position and forces them to accept plea deals that might not be in their interest, just so they can go home.

There is no easy way out of this quagmire, but we need to severely reduce the number of people in the system – that means ending the war on drugs, for a start – and we need to seriously increase spending on our public defense system. We may not like it when the OJ Simpsons of this world tilt the trial system to their advantage, but we should be a lot more upset that hundreds of thousands of defendants don't get a fair trial at all.

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