Ideas for a Better Justice System
I have written about our police, prosecutors and courts before,
and often in unflattering ways. What we call a justice system
is a mess, although not necessarily for the reasons many people
think. Many people think the courts are too easy on criminals
and so contributing to higher crime rates, even as crimes rates
have actually been dropping. They seem to think that defense
attorneys exist just to put guilty people back on the streets.
The result is that, as a society, we are now willing to jail
innocent people regularly, rather than risk a criminal going
free. We used to feel that it was better to let a dozen go for
a lack of evidence rather than imprison an innocent person. Now
it appears that most people have the opposite sentiment.
Before adding a couple notes to what I have already written,
and then a few suggestions for making the justice system better,
here are three of those previous pages on the failures of our
system, from another website:
Police Lie in Court
Guilt by Dislike
Television programs and movies that glorify prosecutors and
make every arrested person appear to be guilty have changed our
justice system. In their book, Mistrial, Mark Geragos and Pat
Harris explain how the standards for convicting a defendant have
changed as a result of a cultural shift in attitudes. Now, to
get a conviction, it is enough for a prosecutor to make the jurors
dislike the defendant and to prove that the defendant acted oddly.
As an example, they tell the story of Cynthia Sommer's case.
Her husband died of a heart attack, leaving her a $250,000 life
insurance payout. She spent some of the money partying and getting
plastic surgery to enlarge her breasts. When it was discovered
that her husband had high levels of arsenic in his liver, she
was charged with murdering him. The prosecutor's entire case
was based on the fact that "she didn't act right" for
a grieving widow. This was certainly enough to make the jury
not like her, but should not have been sufficient for finding
her guilty. They convicted her in any case, after a string of
witnesses confirmed that she did not "act right." after
her husband's death. It was later discovered that the liver sample
had been contaminated; that there was no arsenic. She spent two
years in prison before she was released.
Is Defending People an Ignoble Profession?
Defense attorneys are seen as a necessary evil at best now,
with people usually assuming that they are there to help criminals
go free. Few people understand how many innocent people are sent
to prison, and how the system has changed so that virtually everyone
arrested is considered guilty. In fact, to be elected as a judge
these days you usually have to have been a prosecutor, because
voters want what they call "justice," which is apparently
means locking a lot of people up for a long time. Defense attorneys
are rarely elected, because they are seen as "soft"
on crime. In their book, Mistrial, Mark Geragos and Pat Harris
point out that even for all the lawyers elected as president
of the United States, the last one who was a defense attorney
was Abraham Lincoln, and they say, "If he ran today, he
wouldn't even get out of the primary."
When prosecuting attorneys convict innocent people -- even
knowingly -- they are forgiven by the public (not to mention
that they usually face no professional or legal consequences
either). Meanwhile, defense attorneys are seen as "sleazy"
because they represent people who are sometimes criminals. This
is a change from the days when Perry Mason and others on television
and in movies presented defense attorneys as noble people who
provide a valuable service. It is not a change we should welcome.
It is an unpredictable and chaotic world, and we all are one
minor misunderstanding away from being charged with a crime for
which we are innocent. When that happens we might come to appreciate
the services of a good defense attorney.
Changes in the Justice System
Yes it is important to put dangerous people behind bars. But
it is also important to let innocent people remain free. With
those goals in mind, here are some changes I think might help
create a better system.
1. Eliminate prosecutorial immunity
Prosecutors have virtually unlimited immunity from prosecution
for what they do on the job. They can lie and knowingly withhold
evidence without fear of going to jail. This needs to change.
Since we cannot read minds we cannot say with certainty when
a prosecution is going forward for political purposes rather
than a true belief in the guilt of the accused, but we can at
least go after the prosecuting attorneys who do unethical and
illegal things in the process.
2. Have three judges or professional juries
Judges make mistakes, and some judges are corrupted by money
or, more often, by their own biases. Having a three-judge panel
hear cases would eliminate most errors and corruption. Another
alternative is to have professional juries. Having heard a number
of cases these jurors would know when "expert" testimony
is credible, and they would have a better feel for what is a
3. Do more Jury sequestration
Most juries in big cases are tainted from the start. But let's
at least not let them be swayed by the media in cases that are
big news. Put them in a hotel without television.
4. Appoint judges rather than electing them
The election process means that judges have to rule according
to what the public wants or they might lose their jobs. Justice
is not about majority vote. Let's have judges appointed in some
way that is less political (this will take some further thought
to accomplish properly).
5. Tell jurors about jury nullification
Most people do not know that when they are on a jury they
have the right to judge the law itself and the application of
the law, and not just the technical guilt or innocence of the
defendant. In other words, if the jury wants to find the grandmother
who smoked a joint for her arthritis pain not guilty of drug
possession by reason of bad law, they are free to do that. However,
in almost all courts the defense attorney is not allowed to tell
the jurors that they have this right. Let's change the law to
allow people to know about this safeguard against bad law and
questionable police priorities.
6. Punish prosecutors for hiding evidence or lying
Once we take away prosecutorial immunity we should also establish
the practice of punishing prosecutors for lying or hiding evidence.
They should lose their jobs for a while on the first offense
in my opinion.
7. Use double-blind procedures for witness identification
Witness identification is not all that certain, and it is
made worse by the subtle hints offered by police and prosecutors.
Even a simple line-up should be viewed by a witness with officers
who do not know which person is the suspect.
8. Allow the defense to test providers of evidence
Often lab tests are done in criminal cases with the lab technicians
having full knowledge of the results they are looking for. This
isn't very objective. If they can really determine from a bullet
which gun was used, there is no reason they can't be given ten
bullets, with no idea which is the one collected from the crime
scene, and then asked to say if any of them came from a given
gun. We might be surprised by how often they fail this test.
The defense should be allowed to test the reliability of other
procedures as well. If the expense is a problem let the defense
pay for any additional testing. For example, if a crime scene
investigator is going to testify about a blood-spray pattern,
let the defense set up a couple test scenarios to see how well
the investigator really can do his job. If the time is paid for,
what complaint could he have? And if he can be easily fooled
by a defense-arranged test, why should his testimony be trusted?
9. Eliminate jail time for victimless crimes
People will always want to punish people for behavior they
don't like, so decriminalizing "crimes" that have no
victim is not a realistic goal, but let's at least stop filling
our prisons with these supposed criminals. Use fines and other
civil punishments for drug users, prostitutes and others who
engage in activities which are illegal despite violating nobody's
rights. At least we will have a more civil society -- and a cheaper
10. Exclude dog evidence
The courts have been ruling in favor of allowing evidence
obtained with the help of dogs. Now we have reached the point
where if a police officer sets a dog next to your home or car
and says the dog "signaled" something suspicious, the
officer can enter without a warrant. No judge seems to seriously
question what a "signal" is or even to look at the
research which shows just how unreliable dogs are for sniffing
out contraband. As a practical matter, having a dog handy now
voids the constitutional protection against unreasonable searches,
and allows searches anytime an officer wishes. We need to change
11. Fire prosecutors who convict innocent people
Mistakes are made, but shouldn't there be a limit when it
comes to putting innocent people in prison? I recently read about
a prosecuting attorney who said it was much more fun to convict
an innocent person. He should be in prison for many years, but
since that isn't allowed and most prosecutors will not admit
to pursuing cases for political purposes, let's at least have
a limit to how many times they can put innocent people away.
If we can prove innocence in say, three cases where someone was
successfully prosecuted by a district attorney, that guy loses
his job forever. It's a serious a matter to have innocent people
locked up, and prosecutors should face some consequence for doing
so too often, even if it is by mistake.