I just happened to notice this Atlantic piece asking the logical question in the Aaron Swartz aftermath: now what? Having recognized that a problem exists, what are we going to do about it? Or, realistically, what can we do about it? The piece relies on this brief by LawProf Instapundit Glenn Reynolds. It’s only about 6 pages.
The Atlantic piece – and by extension Reynolds’ brief – are a listing of the usual bad ideas – make the state pay the legal bills of acquittees, ban plea bargains altogether (NO! BAD DOG!) – thrown in with some good ones.
But let’s start with where I left off with my previous post: if we are to have a serious discussion, then it should be an honest discussion. One that acknowledges that if the system is indeed flawed, it is flawed when it comes to all people. So when Reynolds writes:
Most of us remain safe. Prosecutors have limited resources, and there are political constraints on egregious overreaching.
And, most of the time, prosecutors can be expected to exercise their discretion soundly. Unfortunately, these limitations on prosecutorial power are likely to be least effective where prosecutors act badly because of politics or prejudice.
Limited resources or not, a prosecutor who is anxious to go after a political enemy will always find sufficient staff to bring charges, and political constraints are least effective where a prosecutor is playing to public passions or hysteria.
It is easy to dismiss him as mighty naive (or professorial?) for believing that there is an “us” or that prosecutors only overreach in political cases. The biggest transgressions occur when no one is looking; outside of the glare of the media and in the dark shadows of the assembly line productions. That is the problem and folks like Reynolds and Conor Friedersdorf at The Atlantic miss the point entirely by assuming that mostly everything is kosher or that due process serves as an effective counter to any improper charging.
But I give them credit for trying because it’s not an easy thing to tackle. The suggestion, ultimately, is that the entire criminal justice system is flawed. And how do we repair it so as it make it more…just.
Two of the ideas proposed by Reynolds (and one by Orin Kerr) deserve scrutiny: giving prosecutors only qualified immunity for their actions and that too only when they act in bad faith (after all, like the law and order crowd likes to say: if you’ve done nothing wrong, you’ve got nothing to fear) and the more intriguing idea: permitting juries and judges to know of plea bargains when sentencing.
Typically judges who sentence after a trial aren’t the same judges who preside over pre-trial negotiations and there’s a a prohibition on that judge knowing the details of the offer. More often than not, the side that wants to keep the pretrial offer secret is the prosecution: and for good reason. Offers before trial are significantly lower than what the same defendant gets after a trial. If judges were made aware of what the parties thought was appropriate, it might deter them from throwing the hammer at defendants. Or maybe we’d still get 100 year sentences. But odds are that some might think twice. This would certainly be the case if juries were given the power to sentence defendants.
Kerr’s idea is equally intriguing: eliminating the jury’s temptation to “split the verdict” when faced with multiple counts:
Multiple overlapping crimes gives prosecutors an unfair advantage at trial that in turn pressures defendants unfairly to take a guilty plea. That’s the case because the jury is easily misled. When the jury sees a multi-count indictment involving many different crimes, the jurors have two natural reactions. First, they think they can “split the difference” and convict on some but not all. This is just wrong, as it turns out; at sentencing, a conviction as to only one crime is treated just as severely as a conviction as to all crimes. But the jury doesn’t know that, giving the prosecution an advantage. Relatedly, the jury likely thinks that the defendant’s conduct is extra serious if it is charged under lots of criminal offenses instead of one. The existence of multiple overlapping crimes therefore gives the prosecutors an unfair advantage; the answer is to narrow that advantage by eliminating entirely duplicative crimes.
If you’ve practiced here in CT – and I’m sure if you haven’t, your state has an equivalent – then you know that the worst offender is the Risk of Injury statute. It means nothing and everything all at once.
But these are piecemeal solutions that are inadequate and incomplete. For these problems with the system that we decry will remain so long as people believe that the system exists for guilty people only. We need to change the perception; to alter the dialogue. Until people stop asking “how can you defend those people?”, the system will remain broken.
I think things are changing for the better in baby steps. I think, thanks to the massive expanse of the prison-industrial complex, more and more people know someone who has been touched negatively by the criminal justice system.
“Until people stop asking “how can you defend those people?”, the system will remain broken.”
I get this question less and less. And with more publicity about police abuse, jurors seem somewhat more likely to believe that cops lie.
No where near fixed, but slightly better than it was.
(This is in California. The Thomas Kelly case and the BART shooting have done some “good.”).
I think you make a good point.
It doesn’t feel like it is getting better in my California county. Too many of my jurors say, more or less, that cops are unimpeachable. Of course, the cop killings here are only summarily investigated by the DA’s office. (Fortunately, their attitudes re DAs becomes more negative after they actually sit on a trial…) Prosecutors should have limited immunity. Connick v Thompson is an unforgivable decision.
Why do you assert (without explanation) that compensating acquitted defendants for their lawyers’ fees or banning plea bargains are bad ideas? I say it’s about time for both these things to happen.
Innocent people railroaded by the system are certainly morally entitled to recompense; I would go farther and make it cover all the consequences to the defendant of the accusation (likely loss of his home, his job, and his reputation being high on the list). Indeed, I would require police departments to pay damages for every search or seizure, even with a warrant, that doesn’t result in a conviction of the person who suffered the loss for some crime serious enough to deserve the damage done. Take it directly out of the prosecutors’ or police department’s budget, to deter them from engaging in the over-speculative or personally-motivated use of their powers. If they say they can’t work under those conditions, then they should never have been trusted with badges.
As far as plea bargains, everybody knows that their real purpose is to make defendants do without all their due process rights, thus enabling the system to inflict far more punishment than is warranted. The power that plea bargains (and the too-high upper limits on punishment most for crimes) give prosecutors is not legitimate. Only a judge — not a prosecutor — should ever be in a position to grant extra leniency or inflict extra severity on accused people in order to “make the punishment fir the crime,” and only after a full trial for each and every one.
If it’s not worth a prosecutor’s time to try every case, then the system shouldn’t be arresting that person to begin with.
If you noticed, I do provide an explanation for the second assertion: that plea bargains should be outlawed. I’ve written about it before and I stand by my position.
As for the first: it’s a idea that most likely won’t work – and indeed it doesn’t already. The State does regularly pay the legal costs of the acquittee. I mean, I don’t work for free. So when a public defender client is acquitted, it’s still the State who pays. Expanding that to recompense for privately retained attorneys won’t make much of a difference in my opinion. It’s not like this existing cost to the state has resulted in better verdicts. In fact, I think if it becomes widely publicized that all exonerations will cost the state, then an equally likely outcome is that juries just won’t convict anyone.
I can’t disagree with the sentiment behind your last sentence, but I’d rather that they arrest the person and realize that they can’t prove their case and let that person go, rather than have a “if we arrest him, we go to trial” attitude.
Discretion – and here we come full circle – is what is required of them in greater measure.
True that. But it is terrible when the line DA has the life experience of a 12 year old and does not know how to exercise enough discretion to find his way out of a paper bag. I wish the State bars had the same spine vis-a-vis prosecutors that they did with the defense bar… But that circles back to your point about the routine nature of the Swartz case.
I would like to comment to you directly and personally, to ‘a public defendor’. Gideon, if you notice, I did so about 3 years ago. It took me six years to get my police report, are you starting to get it? Just one question. Is this a New England public defender- just asking. Any comment on those 15 nominated today by Gov. Malloy to superior court judgeships? Thank GOD for Seeley and Goodrow….Gideon, you seem frustrated with good reason, as I have reviewed post of prior years. Just saying, but it is all good to me.