DP - Fair DP IDEALS/ABSTRACT “Criminal Justice System” “Fairness and justice for all” “Checks and balances” “Best legal system in the world” Reinforced by the media, education, etc.
DP - Fair DP “The law, in its magnificent equality, forbids the rich and the poor alike from sleeping under bridges” (French Proverb)
DP - Fair DP The reality of our “criminal justice system” is a “dual system” -- the “ideal” system for those who can afford it, and a “cut rate” patchwork system for those who can’t afford more.
DP - Fair DP Corporations and affluent individuals accused of crimes can afford lawyers who match the skills and resources of “the state” (prosecutors). They mostly get the ideal “adversary” system. For poorer people accused of crimes, the process looks more like an assembly line to punishment -- public defenders and “plea bargained” cases.
DP - Fair DP The DP is caught between these dual processes -- the FORM of the ideal system (lawyers, trials, appeals, etc.) -- the CONTENT of the poor peoples system (sham trials, cheap “justice”)
DP - Fair DP So nobody even wants to ask - WHAT WOULD A “FAIR DP” LOOK LIKE? Opponents? Proponents? Courts?
DP - Fair DP 1. FAIR SELECTION PROCESS PROBLEM: Massive systematic discrimination against poor & min/white (and minority victims!)
DP - Fair DP SOLUTIONS: • Improve indigent representation & reduce prosecutor discretion. • Raise the threshold for capital offenses (eliminate medium culpability cases). • Use statistical evidence as a guide (appoint special courts to manage statistics).
DP - Fair DP 2. FAIR TRIALS PROBLEM: Unequal resources = sham trials
DP - Fair DP SOLUTIONS: • Equalize resources: start with ABA recommendations: 2 attorneys, one experienced in capital trials, the other experienced in felony trials, and mandate special training. • Pay appropriately + independent budget for trial preparation, investigation, experts, etc.
DP - Fair DP • Abolish "death qualified" juries. • Note: these would entail huge additional system costs.
DP - Fair DP 3. FAIR & EFFECTIVE APPEALS PROCESS PROBLEMS: Unequal resources, procedural focus, waiver problem
DP - Fair DP SOLUTIONS: • Equal resources, pay, budget for appeal preparation. • Expand appeals process into substantive review. • Abolish the waiver system. • No time limits for new evidence.
DP - Fair DP 4. NON-POLITICAL FINAL REVIEW PROBLEMS: Restricted legal review, political nature of commute review (“passing the buck”)
DP - Fair DP SOLUTIONS: • Non-political, non-legal final review, no restrictions. • Must be insulated from political/public influence. • Standard should be “beyond any doubt” • Commute all questionable sentences to LWOP (or preferably a better policy!!).
DP - Fair DP SOME COMPLICATIONS (why none of the above will likely happen)
DP - Fair DP 1. Jurisdiction problem: this could only be done at the federal level (as a Constitutional issue).
DP - Fair DP 2. Cost: if federal government mandates it, the federal government should pay for it? Yes, necessary for a fair uniform system
DP - Fair DP 3. Political problem: no incentive for changing present system 4. Consistency vs. “individualized” justice
DP - Fair DP 5. Mistakes that slip through even the best and fairest process. Would execs still increase homicide rates (brutalization effect)?
DP - Fair DP Most Americans support the DP, but most know almost nothing about how it really works -- do they actually support the real DP -- or an imaginary version that is fair and just – and doesn’t exist? This is America’s death penalty dilemma!!