A Balanced Approach is the Only Way to Truly Change Our Criminal Justice System

Earlier this week the U.S. Congress started looking into fixing the United States criminal justice system. Elected officials of the Judiciary Committee all had something to say. Terms like “liberal” and “law and order types” were casually tossed around the room to bolster various positions. While it is refreshing to see Congress finally jumping on the band wagon of criminal justice reform, I am deeply concerned that they continue to view “the system” through compartmentalized perspectives. Right now, Congress is mainly focused on amending mandatory minimums and the power of judges to have more discretion in deciding sentences for offenders. While that is a great start, it is clear from their discussions that after changing mandatory minimums, they are going to pat themselves on the back and say “all done, let’s move on”.

This isn’t Congress’ fault, because most lawyers and lay people think the same way. Criminal justice discussions often resemble legal shows on TV, meaning they can only focus on one of the great spheres of power in the court room at a time (Boston Legal is all about the defense or Law and Order which is all about the prosecution). America’s short sighted goals and limited attention span is precisely how we got here in the first place. Look at most articles on justice reform and you will see a common theme of finding the silver bullet to stop excessive punishments, waste, and recidivism in our justice system. The discussion usually focuses on either the prosecution, judge, or defense and almost always over-estimates the power of that entity to fix all the problems. Don’t get me wrong each piece has a part to play and needs advocates (I am a constant loud mouth for defense). Where Congress has me worried, is not what they’re talking about, but what they are forgetting to talk about. The cancer in our justice system has critically spread to all three spheres of power.

CRITICAL PROBLEMS IN ALL THREE SPHERES:

The Defense (read previous blogs for examples):
– Public defenders are underfunded and undermanned.
– There is very little training for attorneys on how to represent the mentally ill or resources for mentally ill clients.
– Plea deals are encouraged by prosecutors and judges.
– Racial and economic disparities from institutional discrimination still run rampant.

The Prosecution:
– Win and loss trial ratios are closely monitored. Example: some prosecutors are openly humiliated in their office when they lose at trial. Prosecutors, especially young ones, need to be free to exercise discretion and make good faith mistakes.
– Prosecutor offices are often understaffed and overwhelmed by high caseloads, which in turn forces them to discourage defendants from challenging the evidence in their case through motions hearings and trials. Example: Prosecutor has 150 cases at arraignment calendar one week, next week she has 10 motions hearings. She physically only has time to skim over a police report for each case before making a plea recommendation that effects someone for the rest of their life. Prosecutors should have case limits just like any other attorney.
– Prosecutors are often blamed for rising crime rates. Example: Prosecutor has to dismiss a murder case because of blatant constitutional violation. Another local murder takes place that is completely unrelated to first case and prosecutor is blamed in the media for upholding constitutional protections or “technicalities”.
– Prosecutors have limited options available for mentally ill defendants.

The Judge:
– Judges are bound by statutory mandatory minimum sentencing. This means prosecutors actually control the sentencing of defendants instead of judges. The prosecutors are the ones who choose what crimes to accuse. If certain crimes have certain mandatory sentences, that means they get to decide what the sentence is if a person is convicted. Example: A Georgia 13 year old who makes A’s and B’s in school is charged with armed robbery because he took $20.00 from someone while holding a water gun that looked real. Judge looks at the facts and wants to sentence the child to 2 years in juvenile detention and 6 years on probation, including various anger management and theft treatment programs.

Judge is forced to sentence the child to 10 years to serve every day because mandatory minimums don’t allow for deviation or judicial flexibility based on facts in the case. Some judges have tried to counteract mandatory minimums by telling the jury how a defendant will be sentenced, but this practice has been extremely controversial and is generally frowned upon.
– Judges are overwhelmed by the number of cases on their calendars so they encourage efficient processes instead of fair and constitutionally sound practices. Example: Judge has 10 cases on motions calendar and states in open court that defendant will be sentenced to twice what the prosecutor would recommend if the case has a motions hearing. The defendant hears this and is too scared to go forward, he does not challenge the evidence in his case out of fear of retribution. This practice not only coerces people into taking a plea deal but also undermines the two lawyers who know the most about the merits of the case. Just like public defenders and prosecutors, judges have too many cases on their calendars. Counties and municipalities are more concerned about making courts financially self-sufficient and procedurally efficient instead of paying for a society that values justice as a moral principle.

These points are just a few of the problems each sphere in our legal system faces. If true criminal justice reform is a priority for Federal and State governments, then it is essential to have a complete discussion with an equal number of judges, prosecutors, and defense council sitting at the table. That is the only way to have a fully informed and constructive discussion of the actual issues facing the professionals who work in these areas.