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Justice Delayed

Poor O.J. According to his friend and partner in crime, he was "set up." Too bad. Couldn't happen to a nicer guy.

The truth is you can't really set anyone up to be part of a group that barges into a hotel room with guns drawn, orders people not to move, demands that they turn over items in their possession, all the while shouting phrases and words that can't be repeated here. You can provide the occasion, but not much more. As we say in the law, if you're predisposed to fall into a trap, it's not entrapment. Besides, entrapment is only a defense when it's the police that do it.

Of course, O.J. and his defenders will say he's being treated unfairly, that if he were anyone other than O.J. he would never have been arrested, or would be out on bail, or would face lesser charges, or some such. In fact, if he were anyone other than O.J., he would have spent the last decade in prison for murder.

There are still people who believe O.J. really didn't do it. There is a whole new generation of kids who know nothing about the facts of the case, but know there are many instances where blacks are treated unfairly by a predominantly white criminal justice system. It's true. But it's also true that this wasn't one of them. O.J. has now given them a chance to see his character up close, to see him for the arrogant, vulgar, explosive criminal he is.

It's almost a public service.

Should O.J. be punished more severely for his crimes in Las Vegas, however you choose to define them, than someone who didn't get away with murder (two of them) would be? Of course he should. Al Capone was imprisoned for tax fraud not because everyone went to prison for tax fraud, but because he was Al Capone.

The question of whether the punishment should fit the crime or the criminal is much discussed, but the right answer is almost always "both." You can't punish someone who hasn't been convicted of a crime, and the punishment must somehow fit within the range appropriate for the crime, but that's hardly an exact measure.

How much is an armed robbery "worth"? The answer depends on who did it, what they've done in the past, and what we have reason to fear they might do in the future.

Once a person is convicted of a crime, the length of their sentence almost always depends on judgments about blameworthiness and dangerousness, and efforts to take away the discretion to make those determinations — for instance, by imposing mandatory fixed sentences — almost always fail, producing sentences that don't seem to "fit," or making the prosecutor's decision as to what crime to charge (a decision that is made invisibly and not subject to review by anyone) the critical one. Discretion in the criminal justice system, it has often been observed, is like the toothpaste in the tube: Squeeze it at the back end and you just have more at the front.

The most striking part of the current O.J. situation is how surprised O.J. seems to be about the future he faces. There he was, just days ago, whistling the apt song, "If I Only Had a Brain."

Who could blame him? He beat the system not only by getting away with two murders, but also by evading the force of the civil court judgment against him. He must have expected that he could continue to operate outside the law and without regard to the rules that we mere mortals must live by. Clearly he thought the suit he was wearing when he was acquitted, the certificate attesting to his membership in the Hall of Fame and whatever else people were holding on to in that hotel room belonged to him, and didn't see himself, as he should, as someone whose past misdeeds left him entitled to nothing. The idea that he was simply taking back what was rightfully his ignores the fact that nothing was rightfully his, not to mention the rule that the ends do not justify the means.

Sometimes justice delayed is justice denied. Not here. I hope Fred Goldman burns the suit.

To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.