Let me ask you another question: of the following group, whom would you trust to protect your Constitutional rights? Judges, legislators, prosecutors, defense attorneys.
I’ll wait while you think about it.
So when you discuss ideas about reforming the criminal justice system and your ideas get traction and are picking up by national columnists, you should perhaps pay attention when they’re criticized by those who are best in a position to determine whether they might be effective or not.
You should. I say should because it doesn’t happen. There’s a large divide between legal practitioners and law professors and an even bigger chasm between practitioners and professors who have political clout. I don’t often write about law professors and their impact on the criminal justice system because I just don’t. But that doesn’t mean I don’t notice it. It doesn’t mean that most criminal defense attorneys don’t notice that we’re the red-headed stepchild; the distant cousin with leprosy who must be invited to the party, but seated as far as possible from the normal people. We see it. We ignore it because we’ve already got enough fights to fight; for you and for me. But sometimes it bears mention.
Judicial opinions don’t cite to my blog posts or that of Mark Bennett or Scott G or any of the dozen other criminal defense lawyers on the internet who write about the practice of law and the defense of your rights. No, they cite to Volokh and SCOTUSblog and the Instapundit, because apparently academia is better suited to understanding the actual problems of being “in the trenches” (which, to be sure, isn’t meant literally).
Why is that so? Is it because academia is so revered? Is it because it’s easier to hobnob with the elite and the powerful? Is it because, deep down, we may revere the principles of individual rights, but we hate those that trade in them? Is it because it is so inconceivable to use that there is value in the profession of criminal defense, that we can only deal with the idea of it?
“I have rights and they must be defended, except everyone who defends them is a murderous scumbag” is a very odd belief to hold.
The truth is, as I said before, that some ideas suggested for reform are intriguing and some are downright terrible. They’re not terrible because they’re suggested by someone whom I don’t agree with politically, or who called me a name. They’re terrible because they are, in fact, dangerous and unworkable.
For example, explain to me a workable system whereby the State would have to pay the costs of a winning defense and the defense the cost of a loser. I dare you. It can’t be done because it’s an idea that’s so incongruous with the nature of the system itself.
If the idea of “crashing the system” by taking every case to trial – or the differently stated ‘banning pleas’ – was workable in the least, don’t you think it would have been done before? It’s a terrible idea because it’s dangerous. Because not every criminal defendant can or should go to trial. Because it would be malpractice. Because it would be suicide.
Maybe it was Aaron Swarz, maybe it’s the NSA scandal, but people are starting to realize that the Government has too much power. There is overcriminalization and there is overcharging.
What is the solution? Immunity, but that’s been rejected by the Supreme Court. How else is one to check the power of the State? Who else is left, if not Congress or the Courts?
The people. It’s taken 7 years, but I think I’ve finally come to the conclusion that juries need to know punishment before verdict and juries have to be told they have the power to nullify.
But it won’t matter a damn because the people to whom we make this temporary grant of power are also all too quick to exercise it to condemn “the other”.
When will you realize that the rights of a murderer are the same as your rights and my rights. The Constitution makes no distinction. An overreaching, high-on-power prosecutorial system won’t suddenly take a break from beating up on the powerless and the helpless just because you happen to walk in their path; you with your “technical violation” and “minor white collar transgression”.
So you may trumpet these reforms and you may get on your soapbox, but they’ll never work for everyone; they will never address the real problems with the system that you’re too high up to see. Not until there’s a seat at the table for those that have first hand knowledge of the problems with this justice system.
Otherwise all you’re doing is reinforcing the notion that there’s one system for “us” and one system for “them”.