How about expanding the right to council to equivalent resources? That way if the government spends a million trying to convict someone, they have to make an equivalent level of resources available to the defense.
Seems like a good idea but I can imagine government accounting gimmicks.
I'm very curious about something that I read in Lessig's post about not being able to reach out to others for funds without incurring the ire of the District Court Judge. I wonder what that is about?
The effect of this would be the government would be prosecuting either cheapest cases (read: defendants most likely to be intimidated, confused and railroaded with minimal effort, including weak, mentally unstable, drug addicts, etc.) or very high-profile cases on which careers are made. Other ones would be completely neglected due to high costs and low cost/benefit ratio, or delegated to the cheapest personnel government service can find.
Since pleading out is much less expensive that jury trial, the current trend of forcing defendant to plead out will become overwhelming - basically, a mere fact jury trial would mean complete failure for a prosecutor ("you let that sucker have jury trial and cost our department whole next year budget?! good luck getting promotion anytime this century!"). They would behave accordingly - given that by now we have 5000 federal crimes and more will be inevitably created just for this purpose, standard scenario would be "we got you for 95 counts of federal crimes, summarily you could get 280 years in jail. Even if jury throws out 90% of them, you are still in for 30 years. How about accepting this one 2 year charge on the cheap and we are done here and now?"
Also, government wouldn't usually spend a million. Locking down someone's assets costs nothing do the government. Setting excessive bail and denying him opportunities to defend himself is also very cheap. So this measure would create incentive to concentrate on such methods of winning the case - why bother with expensive forensics if you can bankrupt him with asset forfeiture and he'd have no money to pay for a lawyer that would ask questions requiring expensive forensics?
It's not the question of money, unfortunately. It's the question of vastly asymmetric power.
It would just be a factor of two in costs. Surely you're exaggerating its effect.
Additionally I would propose that in some random subset of accepted plea bargains, a trial is forced and if the plea is consistently unreasonably far from the plea, there should be some negative consequence for the prosecutor.
It's all about incentives and incentives not always work arithmetically. Also note, that symmetrical funding will mean costs inflation - if defendant gets a million, prosecutor probably would have to spend more on prosecution, since now he has to overcome a million-dollar lawyers. So those cases that get to trial would be much more than twice expensive as before - because while prosecutors have huge resources behind them, they rarely use all of them, unless the other side has equally huge resources. If you force resource match, every case would require all huge resources. And this means incentive to not let that happen would increase dramatically, because the difference is between quick case close in couple of days and prolonged attrition battle with complete involvement of all resources.
>>>> Additionally I would propose that in some random subset of accepted plea bargains, a trial is forced
So, let's say the defendant pleads out and the jury can not convict him because of whatever stupid thing. How it makes prosecutor necessarily bad? Remember in the recent case of Blagoyevich outright selling senate seat the jury could not convict him because one of the jurors thought it's just politics as usual and there's nothing criminal was going on? How something like that makes prosecutor bad? Juries are never certain. It would be hugely unfair and would definitely drive good ones from the job, because good people are usually sensitive to unfairness. Bad people would stay and manipulate the system so that their cases either don't get randomly selected somehow or get to a sympathetic judge, or some such.
> Also note, that symmetrical funding will mean costs inflation - if defendant gets a million, prosecutor probably would have to spend more on prosecution, since now he has to overcome a million-dollar lawyers.
I don't see how that makes sense.. If the prosecutor completely relies on having far more resources than the defendant, then surely the case is weak enough to lose?
It would definitely mean that prosecutors give up on more of their weaker cases.
> So, let's say the defendant pleads out and the jury can not convict him because of whatever stupid thing. How it makes prosecutor necessarily bad?
