Our Broken Justice System

We tend to focus on the issue only when some sort high-profile case comes up, but there are deep structural problems in our criminal justice system. The Washington Post has an interesting piece today that raises one set of issues:

Justice Department officials have known for years that flawed forensic work might have led to the convictions of potentially innocent people nationwide, but prosecutors failed to notify defendants or their attorneys even in many cases they knew were troubled.

Officials started reviewing the cases in the 1990s after reports that sloppy work by examiners at the FBI lab was producing unreliable forensic evidence in court trials. Instead of releasing those findings, they made them available only to the prosecutors in the affected cases, according to documents and interviews with dozens of officials.

There is, essentially, a conspiracy of silence here. Under the cover of the concept of “finality of judgment,” there has been a concerted effort, mostly by prosecutors, to suppress the introduction of potentially exculpatory information to people convicted of crimes. But worse, the process begins earlier, as prosecutors game the system to suppress exculpatory evidence even during a trial.

Have you ever wondered why rich, famous people get off so often when charged with crimes? Well, it is because they have good lawyers, of course. But people misunderstand how good lawyers win those cases. It isn’t just about tying up a jury with convoluted diversions. More commonly they are simply in a position to exploit what is absolutely rampant, systemic, pervasive prosecutorial misconduct.

Remember Ted Stevens:

A team of government lawyers prosecuting Sen. Ted Stevens of Alaska never fully reviewed evidence that could have bolstered his defense, were inadequately supervised and withheld information that would have “seriously damaged the testimony and credibility of the government’s key witness” in his 2008 corruption trial, a special counsel has determined.


“A miscarriage of justice would have been averted had the government complied with the law,” said Brendan Sullivan, the lead attorney for Stevens, reacting to the Schuelke report. “There would have been no illegal verdict. The senator would not have lost the election in Alaska. Instead, the government proceeded by any means necessary to win their case.”

“Any means necessary” is about right, but not just in the Stevens case, of course. Anyway, good lawyers can exploit these sorts of practices to secure acquittals.

In most cases, we don’t get to that point. Instead, prosecutors coerce plea bargains by threatening escalated charges and draconian sentences to force people not to insist upon their right to a trial by jury. It is a terrible system.

I get that being a prosecutor is a tough job. And indeed, probably the vast majority of the people they deal with are indeed guilty. But that dynamic creates a mindset where many prosecutors become self-righteous and self-important. They become arrogant and vindictive. And the deck is loaded in their favor.

What do you do about it?

(1) Dramatically reduce prosecutorial discretion. Their ability to escalate and dismiss charges is much too dangerous a tool to coerce guilty pleas. People have a right to a trial by jury, and should not be punished by demanding to exercise that right. But at present, if you do insist upon this, you will be charged with more severe crimes than you would by pleading guilty.

(2) In order to create space for more jury trials, we need to reduce the case load. The only way to do that is by decriminalizing most drugs.

(3) Trials need to streamlined, and the best way to do that is by dramatically simplifying rules of evidence.

If I had my druthers, I’d also like to see jury members being able to pose questions, but to make that work you’d probably need to give them some sort of legal advisor, and I am not sure how that would work.

But anyway, the bigger issue is that our current system is broken.

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