How the Justice System has excluded input from the people

Last time I was called for jury duty in Delaware there were 42 cases scheduled. We figured we were just unlucky, and we’d surely be called for a jury with so many cases, despite all the tales we’d heard about people getting out of the courthouse by noon. But indeed we were out by noon. Only one case went to a jury. That means 41 people pleaded guilty to something that day, either a crime they’d committed, or a crime they felt was the least they would get away with given the system and the warnings from their defense attorney, the only person who might be expected to be on their side, that coming before a jury would be a crapshoot.

If over 90% of cases are decided by attorneys, prosecuting and defense attorneys together, we are no longer looking at an adversarial system. The only adversarial part of the system is that of the accusation versus the accused. Both prosecutor and defense have accepted the prevailing wisdom that everyone is guilty of something, the system must be preserved or total chaos will result, and therefore their roles have reverted to  highballing the punishment (prosecutor) and lowballing the punishment (defense). The prosecutor is building his or her reputation, the defense is trying not to be swamped amidst a case burden that might have applied to a whole law firm of defense lawyers in a previous time.

Nobody takes time to discover if the facts presented are true, hardly anybody even thinks about if the accused had criminal intent when he did what he was accused of. The police and prosecutor pile on enough charges to ensure that something will stick. The accused is bulldozed into pleading guilty to something so as to avoid a bigger charge. Sometime she did something criminal, sometimes she didn’t. Either way, once arrested the chances of being declared innocent are remote, and require much more money than a typical defendant is going to have.

Preserving the system is already a lost cause. The only thing attorneys are preserving at this point is their jobs. The man in the street thinks of TV shows when he thinks of the justice system, believing juries decide cases based on impassioned pleas from defense attorneys, that lack of evidence will be sufficient to free the innocent. This isn’t a part of the current system.

The first exposure to the system comes in meeting the police. Police are so overwhelmed and cynical about  whole communities that they see their job as being to preserve order, not to bring justice. Therefore when they say “If there is anymore disturbance, someone is going to be arrested” they really mean that. It really is fairly random who gets to go into the system and lose the next decade of their life to court appearances, jail time, probation, supervision, fines, etc. Add on to that reality the fact that police are often given quotas, or offered rewards to make more arrests, and sooner or later no one wants to call the police in the first place. Antonio LeGrier could tell us that, having watched his son (and an innocent neighbor) be gunned down by the Chicago police he called to help calm his son during an argument last December.

There is no point now to try to go back to the past. We have to move forward. A very helpful  first step would be to require the prosecution to prove criminal intent before someone can pay for a crime. Second, given the almost complete responsibility and control placed in the hands of attorneys today, who negotiate sentences without any jury oversight, we must surely demand that such attorneys be well qualified to make decisions concerning human motivations. Legally trained professionals cannot be expected to make decisions concerning criminal intent without further training in behavior and personality theories when they are the only  professional making decisions about people’s lives, and when they have a conflict of interest, their careers often being enhanced by gaining guilty pleas.

Given the overwhelming case burden of attorneys in the system today, this part may be facilitated by a third party involvement, not necessarily a trained psychologist, but a person trained specifically for this position. In the past guilt of motivation was decided by a jury presented with enough facts, having heard arguments from both sides, without need for psychological training. Today this assessment simply doesn’t happen, even if only because usually a jury doesn’t happen.

If a law can be passed that requires proof of criminal intent, then there must be some way that this can be decided. Here we can bring together the wisdom of age with the needs of society, given the huge numbers of older people who are retired but not ready to do nothing. Even without a cadre of people trained for careers based on a new role within the system, many such people would perform this function well based on life experience and training without great expense. The human factor can be restored to the process leaving the legally trained professionals to focus on the law.

One argument typically brought to bear when it is suggested that anyone else be brought in to the system is that it opens up the slippery slope to the privilege of privacy. Given that the public defenders’ role is now reduced to assuming guilt and arguing for reduced sentences rather than for innocence, this becomes something of a moot point. Guilt already seems to be assumed.  And whereas previously it seemed reasonable to argue for protecting the system and its safeguards, now it doesn’t seem reasonable any more. The system has already changed beyond recognition, so why not demand further change?