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Mar 26 2014

The Broken Criminal Justice System

Glenn Reynolds, law professor and the infamous Instapundit, has a good op-ed in USA Today wherein he declares, correctly, that our criminal justice system is a crime in and of itself. He points out how prosecutors vastly overcharge to force plea bargains:

Here’s how things all-too-often work today: Law enforcement decides that a person is suspicious (or, possibly, just a political enemy). Upon investigation into every aspect of his/her life, they find possible violations of the law, often involving obscure, technical statutes that no one really knows. They then file a “kitchen-sink” indictment involving dozens, or even hundreds of charges, which the grand jury rubber stamps. The accused then must choose between a plea bargain, or the risk of a trial in which a jury might convict on one or two felony counts simply on a “where there’s smoke there must be fire” theory even if the evidence seems less than compelling.

This is why, in our current system, the vast majority of cases never go to trial, but end in plea bargains. And if being charged with a crime ultimately leads to a plea bargain, then it follows that the real action in the criminal justice system doesn’t happen at trial, as it does in most legal TV shows, but way before, at the time when prosecutors decide to bring charges. Because usually, once charges are brought, the defendant will wind up doing time for something.

The problem is that, although there’s lots of due process at trial — right to cross-examine, right to counsel, rules of evidence, and, of course, the jury itself, which the Framers of our Constitution thought the most important protection in criminal cases — there’s basically no due process at the stage when prosecutors decide to bring charges. Prosecutors who are out to “get” people have a free hand; prosecutors who want to give favored groups or individuals a pass have a free hand, too.

Not to mention the complete lack of competent counsel with the resources to actually defend them about 80% of the time.

In a recent Columbia Law Review essay, I suggest some remedies to this problem: First, prosecutors should have “skin in the game” — if someone’s charged with 100 crimes but convicted of only one, the state should have to pay 99% of his legal fees. This would discourage overcharging. (So would judicial oversight, but we’ve seen little enough of that.) Second, plea-bargain offers should be disclosed at trial, so that judges and juries can understand just how serious the state really thinks the offense is. Empowering juries and grand juries (a standard joke is that any competent prosecutor can get a grand jury to indict a ham sandwich) would also provide more supervision. And finally, I think that prosecutors should be stripped of their absolute immunity to suit — an immunity created by judicial activism, not by statute — and should be subject to civil damages for misconduct such as withholding evidence.

If our criminal justice system is to be a true justice system, then due process must attach at all stages. Right now, prosecutors run riot. That needs to change.

Hear, hear.

11 comments

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  1. 1
    Marcus Ranum

    It works for the rich, though. Is this the invisible hand of the market at work? We’ve got the best ‘justice system’ money can buy.

  2. 2
    eric

    The first one is probably a legislative non-starter (it would increase state and local budgets) and the third may be a judicial non-starter (any judge considering removing judicial immunity has a self-interest bias not to), but #2 would seem to me something that could be changed without ruffling many feathers.

  3. 3
    Pierce R. Butler

    Yet some people still say the US has no working railroad system!

  4. 4
    colnago80

    The sad part of this is that plea bargains are an absolute necessity. If all criminal suspects went to a jury trial, the system would utterly collapse as there aren’t any where near enough judges, prosecutors, or defense lawyers to try all the subsequent cases, not to mention that it would probably prove impossible to find enough jurors. The costs to eliminate plea bargains or at least greatly reduce them would be astronomical and would require increases in (gasp) taxes. Thus, it ain’t going to happen.

  5. 5
    psweet

    What proportion of those cases involve simple drug possession charges? That’s something we could eliminate very quickly if we so chose, which would ease a lot of the pressure on the system. (Has anyone reported on that issue in Colorado or Washington?)

  6. 6
    Area Man

    First, prosecutors should have “skin in the game”…

    This tired phrase really needs to be put to pasture. He’s not even using it correctly.

  7. 7
    Modusoperandi

    (a standard joke is that any competent prosecutor can get a grand jury to indict a ham sandwich)

    To be fair, it did fit the description.

  8. 8
    Synfandel

    (a standard joke is that any competent prosecutor can get a grand jury to indict a ham sandwich)

    Especially if its on dark rye.

  9. 9
    Kalli Procopio

    It’s actually worse, because prosecutors are rewarded for convictions, even plea bargains. So for them, getting a conviction is good for their career. So they have lots of reasons to stack the deck in their favor.

    Meanwhile, if you are poor, you end up some over worked public defender who is just trying to reduce his work load. If you are middle class you don’t get an overworked public defender you have to pay large legal fees to get an even half way competent attorney to represent you in pre-trial motions etc. If the case goes to trial, you get hit with a second bill and if it is a jury trial that second bill is even larger. A competent attorney on a simple case could run you $10,000 all the way to a trial by jury. During pre-trial the prosecutor tries to run up the charges and threatens with years in prison for a minor infraction, then offers some probation, reduced sentence, community service etc. for a plea bargain and people take it rather than risk 10 years in the state pen for something stupid not to mention cutting their legal fees by more than half. The justice system is broken, severely broken.

  10. 10
    jaybee

    This tired phrase really needs to be put to pasture.

    Oh, the irony.

  11. 11
    slavdude

    psweet:

    What proportion of those cases involve simple drug possession charges? That’s something we could eliminate very quickly if we so chose, which would ease a lot of the pressure on the system. (Has anyone reported on that issue in Colorado or Washington?)

    IIRC, the state bar association here in Colorado is allowing lawyers to advise pot-growers and -sellers if they believe the individuals/companies are doing business legitimately. Also, at least some jurisdictions here have decided to drop cases for possession of marijuana that were pending at the time the law went into effect.

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