As I start to have deeper conversations with people well versed in restorative justice, I'm starting to hear really concrete ideas and practices for reforming our justice system in the US.
Edit: To clarify, restorative justice avoids the punitive approach to dealing with crime. Instead, it asks what harm has been done to what relationships when a crime has been committed. The first goal is then to work to restore those relationships. This is an incredibly valuable perspective in schools, where relationships are central to so much of what should be happening in a learning environment. It's a pretty good lens for examining situations in the larger community as well.
One resource, from a school-based perspective:
And a more general perspective:
And this is not some third world school I am talking about. This is schools in cupertino, one of the wealthiest and most "progressive" areas in the world.
> Years ago, five friends and a I were put in charge of a 150 rowdy fifth-graders for
a long weekend up in Canada. It was almost impossible to be heard over the
din—until I stumbled onto the solution. All we had to say was, “points will be
deducted,” and compliance appeared. There weren’t any points and there wasn’t
any prize, but merely the threat of lost points was sufficient.
The parallels are numerous. You are legally compelled show up under threat of violence (although usually targeted at the child's parents, in the form of being arrested). You are not free to leave when you desire. You lose certain basic human rights while you are there (e.g. [1,2,3,4]). You are subject to the arbitrary authority of non-elected persons. Until recently, you were subject to physical violence at the hands of these persons. Social cliques and violence are relatively common. In many situations, self-expression, experimentation, and curiosity is discouraged.
I know, as a child, public school left a bad taste in my mouth for some of these reasons.
 Board of Education of Independent School District #92 of Pottawatomie County v. Earls
 Bethel School District #43 v. Fraser
 New Jersey v. T.L.O.
 Morse v. Frederick
It's a good thing no one here actually went to one isn't it.
The defense should get this advantage, but the prosecution should not. If the prosecution has to stack the jury to get a conviction, it doesn't have a proper case.
Another problem is that the prosecution is looking for easily influenced jurors rather than diligent ones.
Once had a hung jury on this where one juror was voting guilty and wouldn't budge. Our take: "Look, yes, he is guilty of possession. He had the drugs. BUT THAT'S NOT WHAT HE'S CHARGED WITH. He's charged with conspiracy and he wasn't even in the country at the time the conspiracy was supposedly discussed. The government HASN'T PROVED ITS CASE."
Nope. Guilty. Won't budge. And she was a grand juror. So much for the safety check of a grand jury. Sigh.
You are essentially proposing that juries be selected by the defense. That would not result in impartial juries. It would result in juries that are prejudiced in favor of the defendant.
The real problem is mandatory minimum sentences.
Um, yes, exactly. As opposed to now where the jury is prejudiced against the defense. Most jurors believe that you are guilty by virtue of being in the defendant chair; that needs some counteraction.
The government already has all the advantages--reports, police, enormous resources, and the charging authority.
Giving the defense a prejudiced jury would be a good starting point for counterbalance.
And, I don't think you would find the juries being that prejudiced at the end of the day, anyway. Most people are far too docile and believe the prosecution without any level of skepticism.
a) A criminal jury verdict has to be unanimous. So the "defense's" jurors have to vote to convict along with the "government's." This is clearly designed to benefit the defense.to
b) The "beyond a reasonable doubt" standard of proof. Defendant friendly, to say the least.
c) Jurors are notoriously unpredictable. I don't know of any lawyer (and I know a lot of lawyers), whether a defense attorney or prosecutor, who would tell you that they can reliably predict what any given juror will do. The best you can do is ask questions like "do you think that anyone convicted of a crime is probably guilty" or "would you feel comfortable sending someone to jail" and remove the jurors who give the "wrong" answers to those questions. And note that these would typically be "strikes for cause," and therefore don't count against either side's total number of peremptory strikes.
There is a strong understanding among the populace that a jury is a majoritarian body, that unanimity is a legal fiction, and that juries which can't effectively suppress dissenting opinions are failures in their social function, and we demand both extended "deliberation", and a completely new trial to correct their issue.
We even reinforce this understanding in caselaw; A last-ditch effort to un-"hang" a jury is termed an Allen Charge, which is apparently when the judge instructs the jury's minority vote that their position isn't reasonable while glaring at them menacingly.
Yeah, and that's a good thing. The prosecution should work hard and provide facts to PROVE the defendant done the crime, not pick jurors to help them in burrying anyone they set their targets on.
The article is largely talking about the federal penalties for going to trial, where you have to be 80% sure you will win before it makes sense to reject a plea bargain and go to trial.
He may be guilty as sin, but the government has to prove it's case. If it doesn't prove the case, he walks irrespective of whether he is a bad man because sometimes he ISN'T a bad man.
Your anecdote seems to confirm this.
For the second court instances, which handles appeals from the lower court or serious cases (potentially leading to 6 years or more imprisonment, which in Norway pretty much limits it to murder, serious drug related offences, rape or other serious sexual offences or particularly serious robbery cases), there is a jury and a panel of three professional judges. The jury is selected from the same pool as the lower instance, but generally the selection takes into account experience, so that it generally consists of people with experience as lay judges from the lower court instances.
Which means you'll usually face a jury where the members have previously participated in deliberations with a legally trained professional judge.
If the professional judges do not agree with the finding of the jury, they can set it aside if unanimous (in the case where the jury votes to acquit) or with two votes in the case where the jury votes guilty (and the professional judges wants to set the guilty verdict aside).
If the judgement is set aside, something which is very rare and usually happens only if the jury made obvious substantial errors, the case is retried with three professional judges and four lay judges.
It has warts, but the system with lay judges means that you don't face a group of people who don't understand the system with no corrective input, yet at the same time it still quite frequently happens that the lay judges overrule the professional judges (and the judgement is only rarely overruled), or that the panel is split with a mix of lay judges on professional judges in the majority.
The jury system is related to the original democratic ideals: educated, responsible citizens which can be trusted (in aggregate) to take good decisions.
What you want is a society where you have more jury like systems, which would encourage the education of the people and especially educating their critical sense.
You also want low enough penalties so that jury mistakes are not too dangerous.
If he received a phone call from a co-conspirator, he can be found guilty of conspiracy charges, whether or not he was in the country at the time the other crimes were committed.
It was very clear that someone didn't take whatever threat (aka plea bargain) the government provided, and the government wanted to make an example of him.
The fact that a state can demand a mandatory minimum sentence of 15 years for selling heroin is outrageous. That's not to say, that there aren't convictions here that don't have the appearance of mandatory minimums, but not by law, merely by practice.
(Also, I find no evidence to suggest that mandatory minimums have done anything to reduce crime in the US.)
Mandatory minimums do have cruel outcomes: Usually the minimums were put in place as a political ploy (we'll make sure those bad people get put away for a long time - to keep your kids safe at night). I'm pretty sure that evidence doesnt' exist - any that does is likely against mandatory minimums.
I'm not sure if anyone has appealed mandatory minimums on the basis that they are cruel and unusual punishment: They probably have research to back up their claim. This is probably the true reason they aren't unconstitutional - because you have to appeal and sue (sometimes pretty far) to try to get those turned over. The other option is for the public to pressure legislature into changing the laws, and considering the current climate in Washington, I doubt that is going to happen soon enough.
And they're unfair because they restrict the ability for the judge to individualize the penalty.
A judge's sentencing can vary from one day to the next and can depend on factors as trivial as how enjoyable his/her lunch was.
Mandatory minimums are also intended to make justice less arbitrary.
Bypassing the trial lets the prosecution work in darkness, and darkness invites corruption or incompetency, even if only in the name of getting the job done more efficiently.
I'm thinking out loud here, but maybe the problem isn't the plea bargain, but the pleading process itself. It might be less subject to abuse if the prosecution had to present its evidence before the court and in public, and if the judge could reject the plea and compel a trial.
The problem is there are a lot of federal judges who let prosecutors continually change the charges, change the rational for the charges, add on whole new charges in an attempt to force a plea bargin etc...
Why do prosecutors seek to put innocent people in prison? What's in it for them?
They are not.
Their job is to prosecute. Hence we've seen terrible stories about people prosecuted and jailed for years because prosecutors knowingly refuse to turn over exonerating evidence.
Judges are also part of this problem. They are paid by government. Their instructions (Rules of Criminal and Civil Procedure) come from government. They have often worked as prosecutors for the government. So their loyalty is to the government. We don't have an independent judiciary. It's been wholly captured by the government.
Getting to the question as to why the innocent plead guilty, when you're faced with the cost of an attorney it's often cheaper and easier to take a plea than to fight. The stress, emotional and mental toll of a legal fight are horrendous. And there is very little guarantee that a defendant will win.
The deck is stacked against you when you go to court. Prosecutors and judges are not there to have a colloquy about the law, the facts, the issues of the case, nor to debate the motivation and intent of the defendant. The prosecutor is there to win. The judge is there to ensure that the well-oiled machine keeps running and that jurors deliver the needed verdict.
>They are not.
>Their job is to prosecute
That's not entirely true. Their job (or at least their office's job) is also to decide when and where to seek prosecution. In theory, determining truth and innocence is a significant part of their job.
The trouble is when that runs up against a politicized, failure intolerant culture that would much rather reward a prosecutor with a strong string of wins (however questionable their methods) over one with the courage to simply present the best case they have and let the jury decide on the facts like they are supposed to.
There are a couple of problems with this:
1. When everyone is guilty of something, prosecutorial discretion is a disaster, not a desirable feature of the system. It's nothing other than the power to bankrupt and/or imprison whoever you don't like.
2. They don't do things by assessing truth and innocence. When my great-grandfather's mind went, some member of another branch of the family got appointed conservator of his estate, and proceeded to embezzle over $600K in "gifts" to herself and her family. My mother discovered this by coincidence, assembled a huge pile of damning evidence, and went to a prosecutor, who said he wouldn't bother charging her because she was a middle-aged woman and getting a conviction would be almost impossible.
My mother ended up suing, and on advice of counsel settled for the documented value stolen, rather than the full legal liability (which is a multiple of the losses). The theory there, as I recall, was "judges hate it when you go to trial even after being offered a settlement, so you should take the settlement".
I wonder if changing the rules would help. Releasing such evidence and causing the case to collapse would not reduce the conviction percentage. Perhaps it could even be counted as a win, increasing the metric, because justice was done.
I understand, but how did this become gospel?
> When a measure becomes a target, it ceases to be a good measure.
Interestingly, even if we added wrongful conviction rates as a disincentive, it would probably not affect the end result. It isn't impressive being an 80% prosecutor. It's much better to aim to be a 95% prosecutor and take the risk of a wrongful prosecution. Go big or go home.
I wonder if there's a better way of determining if someone is good at a job. I mean, it is natural for us to like people who do really difficult things, but if many people take great risks, there's likely to be at least one who just happens to succeed due to circumstances. Did he succeed because he's better or because there's a 5% chance of succeeding and he just happened to do so? It seems like he succeeded against all odds, but what if that was just pure luck and it seems impressive because we don't see it as throwing a hundred darts (a hundred prosecutors) at a board and seeing one strike the bull's eye (one with no wrongful convictions)?
And rate, vs count, is also the correct metric. Unfortunately, prosecutors are often under a lot of pressure from the public (i.e., us) to put somebody away. What's a prosecutor to do after Nancy Grace tells us who the murderer is?
Why would you imagine that? Why would you assume that there was even a crime at all for there to be a 'correct perpetrator'?
>Unfortunately, prosecutors are often under a lot of pressure from the public (i.e., us) to put somebody away. What's a prosecutor to do after Nancy Grace tells us who the murderer is?
This is significant in the six cases a year that get big television coverage, but this has happened to millions of people and the media/public generally have little/nothing to do with it.
And even if that were true, why charge obviously innocent people at all? Not charging them won't affect the conviction proportion.
edit - there is also Krishna Maharaj, who it seems was completely fitted up by the Florida police and who still has a life sentence despite 6 separate witnesses putting him 30 miles away from the murder he was originally sentenced to death for. http://www.reprieve.org.uk/cases/krishnamaharaj/
Or there is Dan Taylor, who's seemingly watertight alibi is that he was already in jail when the murder he was convicted for happened. Still didn't help him any despite police records confirming this - http://www.chicagotribune.com/news/watchdog/chi-0112190353de...
Or Jonathan Fleming, holidaying in Florida with family during a murder in Brooklyn. Police withhold the evidence proving his alibi. http://edition.cnn.com/2014/04/08/justice/new-york-wrongful-...
Dan Taylor gave a detailed confession.
I'm not saying they're guilty, but it's not like the cops just picked them up at random.
As for Krishna Maharaj, whether he knew the victim of the murder is fairly incidental to having 'admissions by former Miami police and those closely associated with law enforcement that they framed Maharaj and had a deal to help cover up Colombian cartel murders'.
Most might not, but some most certainly do.
That's what I said about understanding what the injustices really are. The challenge isn't as simple as what you're saying: "just don't charge innocent people." The challenge is getting prosecutors to give defendants their due process, even when the defendants have damning evidence against them, when they have criminal records, when they are caught up in shady circumstances.
I read an article the other day about a guy who was convicted of murdering a pizza delivery driver in front of his wife and kids. There were questions about whether he had been the one to shoot, but there is no doubt that he and his friends were in the process of robbing the driver when one of their party shot the driver.
I don't actually like the you're-guilty-of-murder-if-your-cocriminal-kills-someone rule, but that seems like exactly the sort of case it's intended to work with.
Although, he was re-sentenced to a 30-60 year sentence with possibility of parole after a 2012 Supreme Court case: http://www.thealpenanews.com/page/content.detail/id/624360/N.... Big victory for criminal justice reformers. :-/
Which is actually an interesting thing to consider when you are applying laws to millions of people.
(still, from where I sit, convincing people that prison should not be a hell pit is a much bigger win right now than sweating false convictions)
I think prosecutorial misconduct is absolutely unacceptable. But I can also see why it happens, without assuming that it could only happen if large numbers of prosecutors were evil people who would convict someone they knew was innocent just to inflate their quota.
I think it's interesting that you have so many responses to your comment and none of them propose that possibility. Yes, there are corrupt prosecutors, or prosecutors who just don't care. But I think most of them do care, and think they're doing the right thing. The police won't arrest you unless they think you're probably guilty. The prosecutor won't go after you unless they think you're probably guilty. The evidence points in that direction, or else they wouldn't get far. You may be innocent, but they're not working on that angle. From where they sit, you look guilty, and things like exonerating evidence will be seen through that lens, as a way for a guilty person to go free, not a way for an innocent person to avoid punishment for a crime he didn't commit.
This is simultaneously reassuring (these are regular, good people) and terrifying (how do you fix the system then?).
I understand that. But some do, and they commit horrific crimes of injustice in so doing. Why?
Giving defendants a choice between a certain year in jail if they plead guilty or 15 years in jail if they're convicted, it becomes basically right for them to accept the former just from a risk management perspective.
Playing a game of high-stakes poker with your freedom on the line makes a mockery of the very concept of justice.
The system is designed to extort guilty pleas. The statistics are pretty straightforward: if you are standing in court facing charges, you've already lost. You just may not know it yet.
I know somebody who had some charges brought against them about 10 years ago. It was a he-said/she-said and the state had no real evidence. From the get go they were trying to get a plea bargain. The accuser even recanted, signing a witnessed statement to the effect that they lied about the whole thing. Still, they pressed forward. Delaying meetings, pushing out dates, and generally drawing the whole thing out. They waited until the very day the statute of limitation ran out to close the case. I've seen first hand how much leverage they have over people. These types of charges, even pending, can completely wreck your life. And the stress. I remember everyone saying he should take the plea bargain, but I agreed that if he was innocent he had a duty to tell them to stuff it and hold out. Justice, pride; I GOT it. We were young. Now though, at 30.. If I were in a similar situation I'm just not sure what I would do.
> I am driven, in the end, to advocate what a few jurisdictions, notably Connecticut and Florida, have begun experimenting with: involving judges in the plea-bargaining process.
Worth a read.
It didn't matter any more that I hadn't done anything (not just anything wrong, but anything - I had been arrested while sitting on the sidewalk talking to friends) the important thing was being free from a potential three year sentence for 'criminal trespassing' at 18.