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12.08.11

In Rush to Punish Sandusky Authorities Are Covering Their Own Failures

Many are urging harsh punishment for the ex-coach, including high bail that would keep him in jail. But that is contrary to U.S. justice—and an attempt by Pennsylvania authorities to cover their own failure to stop him.

Among the most difficult undertakings imaginable is the defense of the rights of someone who, in the public mind, is almost universally regarded as despicable: a Jerry Sandusky. If indeed he is found guilty of the revolting crimes against children that he’s being charged with, he undoubtedly should be locked away for the remainder of his life—without question or doubt.

With that said, however, Sandusky has yet to be put on trial, yet the media are baying for his blood—sans a conviction. And prosecutors in Pennsylvania are more than happy to feed the beast, but they’re doing so for one glaring reason: to cover their own asses. Nevertheless, the presumption of innocence is a bedrock principle of our system of jurisprudence, and we cannot abandon it at will—not even if we strongly suspect we have a monster in our midst. 

Now that the jig is up (not only on Sandusky’s alleged crimes, but on the nonfeasance of law enforcement at every level in the county and state in which the crimes allegedly occurred), it appears that law enforcement officials in Happy Valley are preparing to engage in a bit of prestidigitation—the magician’s craft of misdirecting. They want to keep the public’s attention and the hot spotlight of TV cameras focused on the alleged monster Sandusky and not on them and what they collectively failed to do to stop him for all these years.

Even when Sandusky was initially arrested, no one in that part of Pennsylvania seemingly expressed the thought that the judge who set the original low bail (even though she was associated with Sandusky’s Second Mile charity) should have recused herself. A number of lawyer friends of mine were outraged at that all-too-cozy arrangement.

Penn State’s Jerry Sandusky Scandal: Who’s Who
Clockwise from top left: Centre Daily Times, MCT / Landov (2); AP Photo (2)

But now that two additional potential victims have come forward and Sandusky’s back in custody, the prosecutor is asking for $250,000 bail (he should also be requesting that Sandusky be required to wear a monitoring device to track his movements), which no doubt will be granted. Making Sandusky do another “perp walk” (instead of calling him and instructing him to come in, which, of course he would have done) was pure dog-and-pony. They probably called media outlets so TV cameras could be at the scene of the “arrest.” 

One frothing-at-the-mouth cable-news commentator—a lawyer no less—suggested that every time a new alleged victim comes forward, Sandusky should be hauled back into court again and again and additional bail set. The obvious implication being that eventually he won’t be able to make bail and will have to sit in jail until the charges are adjudicated. The commentator stopped just short of saying, “That’ll show the pervert!”

But here’s the problem: under our system of justice, bail is supposed to be “reasonable,” not punitive; its purpose is assure a defendant’s appearance in court, not used as a device to keep anyone incarcerated—no matter how unsavory or unpopular—who has yet to be convicted of a crime. The one exception is capital murder, where no bail is set.  

Sandusky has yet to be put on trial, yet the media are baying for his blood.

Law-enforcement officials in Pennsylvania might try to execute this underhanded legal maneuver to exculpate themselves in the public mind—to show the world how tough they are now being on Sandusky. And they would be able to get away with it because, as now-deceased Harvard Law School professor William J. Stuntz posits in his brilliant new book, The Collapse of American Criminal Justice, the system of adjudicating crimes in this country is broken.

Stuntz was ranked among the foremost legal minds of his generation. Supreme Court Justice Elena Kagan said in an interview immediately after his death in March: "Despite his self-professed conservative inclinations … what was fascinating about him was that everybody read him and listened to him and took seriously what he said.” And from the grave he’s saying the system is deeply flawed.

So flawed, in fact, that Congress has proposed the National Criminal Justice Commission Act of 2011, which would “create a blue-ribbon commission charged with undertaking an 18-month, top-to-bottom review of [America’s] criminal-justice system.” Better late than never, I suppose.

The entire Sandusky scandal points out one of the glaring aspects of injustice Stuntz makes in his book: laws are applied unequally—in many cases wildly so—in this country according to many variables Lady Justice is supposed to be blind to: wealth, station, and power.

While officials might want to be tough on Sandusky now, the parents of some of the alleged victims complained about his behavior years ago but were blown off because of who he was—the powerful—and who they were—the powerless. But our Founding Fathers supposedly designed the Bill of Rights and constitutional guarantees for the latter demographic, not the former.

If indeed Sandusky is guilty as charged (and I, for one, believe that he is), the question has to arise at some point: how could he have continued with his alleged activities for so many years without tacit approval and a blind eye from virtually everyone in law enforcement in the state of Pennsylvania, those who were sworn and duty-bound to protect and serve the citizenry?

When Sandusky stands at the Bar of Justice—as he eventually will—he should not be standing in the dock alone. His enablers should also be there with him to answer charges.

Those law-enforcement officials who now want to trample on the rights of a man who has yet to be convicted of any crime (just to show the media how tough they are being on him) should be held accountable for any underhanded actions they take now, and for the action they failed to take back then when they should—and could—have been protecting vulnerable children.