The college course that required the creation and maintenance of this blog has ended, with a final grade of A! I couldn't be happier! Because of this and my inordinately busy schedule, this is the last entry. Thanks to all of you who read my blog.
I'm especially grateful to those who provided feedback-your comments helped greatly in the development of the blog. As most of you know, there is an abundance of information available about the justice system out there-this but one of many blogs. Check out the links I've posted both in the blog entries and in the links listing on the right side of page.
If you're interested in reforming the justice system, please visit those blogs and websites, but most importantly, contact your elected officials, start petitions, and VOTE!
Jeffrey Deskovic spent 16 years in prison for a cime he didn't commit. He was sent to prison at age 16 for rape and murder. Eventually, DNA testing vindicated him and proved that another man committed the crime. As much of an injustice as Mr. Deskovic’s imprisonment was, what makes this case especially unjust is that this man could have been exonerated and released 6 years earlier than he was-but his lawyer filed paperwork four days late.
Supreme Court Justice Sonya Sotomayor was one of the judges on the appeals court who made this indefensible decision. Of course, the justification of this decision was that the law specifies a limit of time to file motions and barring extraordinary circumstances, there are no exceptions. Unfortunately, common sense is often lacking in legal proceedings. Justice is denied based upon technicalities by people who aren’t as interested in serving justice as they are in technical compliance with a law.
Appeals courts rarely hear new evidence, even when long prison sentences or even the death penalty is involved. While limits on appeals make sense for civil actions and perhaps even for minor criminal convictions, appeals for criminal convictions involving lengthy prison sentences or the death penalty should have different standards. Because so much is at stake, new evidence should be considered and appeals and motions should be entertained at ANY TIME when the accused is still incarcerated. Often those in the courts see these as cases-mere numbers-instead of people, who are possibly being denied their right to life and liberty because of a miscarriage of justice.
While the backlog in appeals courts is very significant, the answer should not be to potentially deny justice to some in the name of efficiency. More resources should be dedicated towards the appeals process, as with indigent defense. The ability of politicians to manipulate the system for political and personal gain needs to be eliminated. If we could do these things, chances are we could reduce the massive size of our prison population-which most likely would mitigate, if not eliminate the increased costs of adequately funding criminal defense and appeals. What’s even more important is that we would be living up to our nation’s ideals of liberty and justice for all.
Imagine being charged for a crime which you didn’t commit, then being convicted and sentenced to die for that crime. You spend years on death row, agonizing, hoping that the truth will be discovered before you’re put to death. Finally, a break comes, your innocence is discovered, you’re exonerated and set free. Does this scenario sound far-fetched? Well, it has happened to 138 people in 26 states since 1973. They’re the fortunate ones, some have not been so lucky and have actually been executed.
Sister Helen Prejean, in her book “The Death of Innocents,” documented the case of Roger O’Dell, who in 1986 was convicted of murder and sentenced to death based on circumstantial evidence centered around the testimony of a jailhouse informant. Despite seeking DNA testing of forensic evidence for nearly 12 years, he was executed in 1997 without the evidence being tested. The evidence was later destroyed, so we’ll never know for sure, but there is a high probability that he was innocent. The reasons the courts denied DNA testing of the evidence had to do with procedural grounds. Apparently, our court system is more concerned with procedure than with justice.
Another potentially innocent person put to death is Cameron Todd Willingham, who was executed in Texas for setting the fire that killed his children. Though the case centered around the testimony of so called “experts,” their methods were highly questionable and the prosecution overzealous. Since he was executed, the State of Texas has been uncooperative and unwilling to investigate legitimate concerns and problems with this case. The question with both Mr. Willingham’s case and that of Mr. O’Dell is that if the state is so certain that they didn’t wrongfully convict and execute these men, then why all the effort to defeat any attempts to examine these cases? Why destroy evidence? Why fire a government official who was investigating the handling of a case, as Governor Rick Perry did in Texas? The most likely explanation is that politicians fear wrongful executions would undermine the public’s support of the death penalty. So, politics once again trumps justice.
An ongoing case of a potentially wrongfully convicted person who may very well be executed is that of Troy Davis in Georgia. Convicted of killing a police officer in 1991 based on the testimony of nine witnesses, time is quickly running out for him. Since his conviction, seven of these witnesses have recanted their testimony and there is evidence that another man may have killed the police officer. As with other cases, procedural problems seem to interfere at just about every turn. Fortunately, the U.S. Supreme Court has ordered another hearing for Mr. Davis in a Federal Trial Court, and hopefully he will at least be granted a retrial. Of course, the obvious question is, given the potential problems with this case, why hasn’t his sentence at least been commuted to life in prison while the appeals of his conviction continue?
The answer as to why Troy Davis is still facing death despite doubts about his guilt lies behind a statement made by Justice Antonin Scalia in dissent to the decision to give Mr. Davis a new trial. Justice Scalia said that "This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent." So, basically, as long as the accused is given due process and procedure has been followed, the government should allow the execution of an innocent person or one where there is serious doubt as to guilt. By using the phrase ‘actually’ innocent, it is apparent that Justice Scalia doesn’t believe that innocent people are actually put to death. Justice Scalia’s bias is evident in his dissent in this case and unfortunately, many others in our government share his views, because the death penalty is politically popular.
Our constitutional rights include the rights to life, liberty and the pursuit of happiness as well as the right not to be subjected to cruel and unusual punishment. Additionally, the standard of proof in criminal cases is guilt beyond a reasonable doubt. When claims arise which call into question the guilt of the accused in a capital crime-why can’t we ensure that these claims are thoroughly examined and heard? When one’s very life is at stake, shouldn’t we be as certain as possible that the person being executed is guilty? Death is irreversible and we should always err on the side of caution when there are legitimate doubts. We must not allow politicians and judges to ignore the truth simply for political expediency. Allowing the innocent to be put to death puts us in the same league as countries like Iran and North Korea. We have no business preaching human rights to other countries when we allow such injustices against our own citizens. As I’ve said many times before, we can do better. We ARE better.
In May, 2010 Ray Towler was released from prison after serving 29 years for a crime he didn’t commit. We know that Mr. Towler was innocent because DNA testing proved that he was not guilty and now he stands to gain at least a $1.4 million dollar settlement plus his lost wages. Some might say this is fair, but is it? How much is 29 years of one’s life worth? How about the trauma and oppression of being locked up as a violent criminal? What about the damage to reputation? How does one find a job after 29 years of being involuntarily unemployed?
Raymond Towler freed after 29 years in prison for rape he did not commit
By no means do I advocate frivolous lawsuits or settlements that rival powerball lottery winnings, but obviously our justice system failed Mr. Towler. He was wrongfully accused and convicted. DNA testing has been available for many years now, and yet only now is he being released. The reasoning behind this was that some evidence in his case could not be found. This type of incompetence is completely unacceptable and should not be tolerated in our society. This man lost 29 years of his life-he’s now 52 years old with no job, no home, no health insurance. He’s missed the opportunity to build a life and have a family. 1.4 million dollars doesn’t seem like nearly enough. Yet he is fortunate. Not every state compensates the wrongfully convicted, and some like New Hampshire cap claims at ridiculous amounts like $20,000. That won’t even buy a decent new car, much make up for a miscarriage of justice and a loss of years.
The fact is, whether one is guilty, serves time in prison and is released, or is exonerated and released after wrongful imprisonment, it makes little difference. Many in society still view the exonerated as ex-cons, not as people who were unjustly convicted and wronged by our great system of justice. It is often just as difficult for them to find a job and a home, and reintegrate into society as it is for prisoners who serve their time and are released. It is appalling that we compound the injustice of being wrongfully convicted with discrimination after exoneration and release.
What can be done to fix this problem? We can make an active effort to run DNA tests on EVERY criminal currently incarcerated who was convicted based on physical evidence prior to the existence of DNA testing. We can require a fair and just system of compensation for the exonerated, which includes not just monetary compensation. Resources must be made available to them-healthcare, psychological counseling, assistance with obtaining housing, assistance with obtaining employment, even pensions for those who have served lengthy sentences and have lost out on many prime earning years in the job market. So far, approximately 250 people have been released from prison based on DNA evidence which exonerates them-but that number could grow exponentially in the coming years. It is absolutely unconscionable that many states pay them little or nothing and put them out on the streets. We as a nation can and must do better.
Should something that someone as young as 10 years old does be held against them for the rest of their lives? Should minors convicted of murder be kept in prison forever, with no possibility of their redemption and return to society? How about those convicted of rape or other violent crimes that are not homicides? As frightening as it may seem, many states have answered all of these questions with a resounding yes. Driven mostly by politicians with a political agenda, they have failed to recognize that as minors mature, they are more likely to change and be rehabilitated if given the opportunity. Incarceration for life without the possibility of parole denies these youngsters any ability to redeem themselves.
Fortunately, the Supreme Court ruled in May 2010 that life sentences for crimes other than murder are unconstitutional. This will invalidate laws in 37 states which allow life imprisonment for juveniles in non-homicide cases. It also recognizes the fact that life imprisonment could constitute cruel and unusual punishment when applied to those who haven’t really even begun in life. This decision will allow at least 109 juveniles throughout the country, including at least 77 in Florida alone to be eligible for release at some point.
As great as this decision is, what about kids that commit murder? Those who commit murder may still be imprisoned for life without the possibility of parole. The Supreme Court did not rule that murder sentences of life for juveniles were unconstitutional. Fortunately, some states and the federal government are beginning to reconsider condemning minors to life in prison and are allowing release to be an option at some point (although in many cases these minors will be middle aged or older before they could even be considered for release). I believe that this balances the obligation of the government to protect society from dangerous criminals, while allowing for redemption for a crime committed as a youth. While murder is the most serious crime one can commit, given that children are highly impressionable and their minds are not fully developed should be a mitigating factor.
The real problem that remains is that whether one is charged as an adult for a crime committed as a juvenile or whether one serves life in prison for a murder committed as a juvenile really depends on the state where the crime occurred. This can result in a wide disparity in sentencing for the same crimes-just as occurs in many adult criminal cases. Perhaps the only solution to this problem would be either a Federal Law or a Constitutional Amendment which defines the age at which juveniles can be tried as adults. That’s unlikely to happen, but it may be the only way to ensure justice for juveniles.
When should a child be considered an adult? What does the law say? The first question can be debated to some degree and the second is unclear to say the least. At age 16, one can legally drive a car. At age 18, one can sign legally binding contracts, join the armed forces and vote. At age 21, one can legally drink alcohol. So, how can a 14 or 15 year old be tried as an adult when he/she is not considered under the law to be competent to do any of these things? And how can a 16 or 17 year old be tried as an adult when they’re still not considered to be competent to enter into a legally binding contract?
Many of the laws which prescribe a minimum age for responsibilities such as driving, voting and entering into contracts have a basis rooted in biology. Children are immature and their brains are still developing. In fact, it is believed that the human brain may not be fully developed until approximately age 25. Minors, having brains which are not fully developed-are considered to be incapable of making adult decisions and taking on adult responsibilities.
So, given that the law considers minors incapable of having a credit card or voting, how can they be held to an adult standard for crime? The juvenile justice system is based upon the fact that minors are generally not capable of making adult decisions and must be held to a lesser standard. This is why minors prosecuted in the juvenile courts are not entitled to a jury trial and generally are not imprisoned past their 18th birthday. It’s also why juvenile records are sealed. However, because of the lesser consequences available in the juvenile justice system, politicians have decided to pass laws to enable transfer of juveniles to the adult justice system at younger ages for certain crimes.
While a legitimate interest might be argued for the longer sentences for juveniles convicted of violent crimes (as I mentioned in my last post) it really does create a double standard, and it has raised some constitutional issues. Tomorrow I’ll discuss juveniles being given life sentences and the promising ruling in favor of justice handed down by the Supreme Court this year. Hopefully this trend will continue and the ability of politicians to deny justice for political gain will continue to erode.
While juveniles can commit many of the same crimes as adults, should they be tried as adults? If so, at what age should they be tried as adults and for what crimes? These questions are questions that states have been struggling with for quite some time. Unfortunately, as with many other issues related to justice, prejudices and politics come into play and unjust laws result.
These laws have resulted in children as young as 14 or 15 being given adult sentences and being jailed along with hardened criminals. There is no evidence that these laws have reduced crime and there is some evidence that such standards create career criminals out of youths who might have been rehabilitated. Some states have recognized this have reconsidered or are reconsidering these laws. Even the Justice Department questions the effectiveness of such laws. In the coming posts this week, I’ll expand on this topic a bit and discuss life sentences for juveniles and how the law defines an adult. This is an area of our justice system that too often gets overlooked, but plays an important role in our future.
With the spreading use of medical marijuana and incidents of drug trafficking from Mexico making the news, most Americans are aware of the War on Drugs-and its lack of effectiveness. But many may not really know WHY it isn’t effective, and how it may inadvertently contribute to the disproportionate numbers of racial minorities in the prison system. This “war” has been going on for 37 years, since President Nixon created the Drug Enforcement Agency (DEA) in 1973. Since then many laws have been passed and many arrests made, but drug use and dealing is still rampant.
As long as profits can be made from dealing in illegal drugs, it will be impossible to stop it entirely and no reasonable person would expect the government to be able to stop drug use. However, considering the considerable amount of time and money the government has spent, one would expect drug use to at least to have declined. Unfortunately, according to the government’s own data that hasn’t happened-in fact the percentage of Americans of all ages who have ever used illicit drugs has increased by 10 percent between 1979 and 2001. Yet, we spend billions every year prosecuting this “war” which disproportionately impacts the poor and minorities.
It is known that those who are lacking in opportunities, such as minorities in poor urban areas are more prone to be drawn into criminal activity. Crack cocaine has devastated many such areas, including Washington DC. Many have been drawn into the use of and dealing in this deadly drug and have been sentenced to lengthy prison sentences for doing so. However, little has been done to cut off the supply of this drug and prosecute the source of the drug-the kingpins. Rather, most of those in prison are small time dealers and users-who might be better served by rehabilitation than incarceration. But because crimes involving crack often carry harsher penalties than other drugs, minorities are disproportionately affected by the prosecution of this “war.”
Some believe the answer to the drug problem is to make all drugs legal and have the government regulate them, but I don’t believe that this is the answer. Rather, if we truly want to achieve results, we must allocate resources and realign the laws to rehabilitate small time dealers and users of illicit drugs. Perhaps some drugs, such as marijuana could be made legal and regulated, but for those drugs that are illegal the penalties should be consistent. Making drug offenses related to certain illegal drugs more severe than others only invites injustice and usually it’s minorities that get the short end of the stick. There’s no doubt that the billions spent every year on the war on drugs in this country could be better spent and justice could be better served. If we fail to overhaul this “war” we can only expect the injustices related to it to increase.
Minorities commit the majority of crimes. Therefore they are the majority in jail/prison. This is essentially the argument of some when asked to explain the very disproportionate number of minorities incarcerated in the United States. Not only does such thinking indicative of racism, it indicates a real intellectual laziness. Such simple explanations will only satisfy the stupid and the bigoted, such as white supremacists. For the rest of us, it is apparent that there are issues that must be confronted if we truly seek justice in our justice system.
As I’ve discussed in previous posts, justice often goes to those who pay. Those who cannot afford an attorney and must rely on public defenders or court-appointed attorneys often receive harsher punishments. They are also more likely to plea bargain, sometimes even entering guilty pleas for crimes that they didn’t commit. Because black and Hispanic minorities have overall lower educational attainment and higher rates of poverty, they account for a large percentage of those receiving less than the best possible defense when accused of a crime.
While there is little doubt that increasing educational attainment would decrease the poverty rate to some extent, there has been and continues to be racism within the justice system. While the Civil Rights movement and The Civil Rights Act of 1964 made progress towards racial equality, there is still much work to be done. Racial profiling still exists, and the disparities in sentencing and the death penalty prove that justice is not truly blind. It is clear that the solution to these problems will have to be multi-faceted. We must confront racism in our society effectively, find ways to increase education among minorities and alleviate poverty if we really want justice to be blind.
While defeating racism, reducing poverty and getting people to increase their educational attainment are lofty goals, even some progress on these fronts could have a positive impact. We must also change the way the War on Drugs is prosecuted in this country, which I’ll discuss in tomorrow’s post. While I doubt we’ll ever live in a colorblind society, we should not rest until at the very minimum our criminal justice system is one in which all Americans are equal under the law.
Many of you have probably heard about the decision of the Justice Department not to prosecute members of the Black Panther Party who were accused of voter intimidation. For those of you who may not be aware, members of the Black Panther Party were accused of hurling racial slurs and one member was brandishing a nightstick outside of a polling location during the 2008 elections. The case was prosecuted and the government won a default judgment against those accused when they failed to show up for the court date. The Justice Department has since dismissed the charges after one member agreed not to carry a deadly weapon near a polling place until 2012. As a result of this decision, an attorney at the Justice Department has resigned in protest, accusing the Justice Department of racial bias by not prosecuting non-whites in voting intimidation cases.
If this accusation is substantiated, it would represent a definite departure from the overall trend in the justice system. As of 2009, the majority of inmates at local jails throughout the country were members of racial minorities. At least 55.4 percent were either black or hispanic, with 39.2 percent black and 16.2 percent hispanic. Blacks were incarcerated in the prison system in 2009 at a rate 6 times higher than the white non-hispanic population. The links provided with these statistics provide much more detailed information and I won’t bore you all with the details, but it definitely indicates a problem. If blacks only account for 12.8 percent of the population, how can they be 39.2 percent of the jail population and 35.4 percent of the prison population?
While there may be many explanations for racial disparities in the prison population, there is little doubt that prosecutors declining to prosecute non-whites (as the former Justice Department attorney alleges in the Black Panther case) is not a problem we’ve had in this country. In fact, the demographic data indicates a possible zeal on the part of prosecutors for the prosecution of racial minorities. Pair that with high poverty rates and lower educational achievement by some racial minorities and you have a recipe for injustice. In the next few posts, I’ll explore some of the issues which explain these disparities and ways in which we can ensure that all Americans are treated equally under the law, without regard to the color of their skin.
“All animals are equal, but some are more equal than others.” –George Orwell, Animal Farm.
‘All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” -The Fourteenth Amendment to the Constitution of the United States, Section 1.
Most of us are aware of the existence of Hate Crimes Laws. These exist at the federal level and many states also have these laws, and they provide enhanced penalties for those convicted of a violent crime where bias towards a protected class was a factor. Proponents of these laws say that they are necessary in order to ensure justice. Opponents say that they create “special protections” for protected classes and violate the 14th Amendment right to equal protection of the law.
In October, 2009 President Obama signed into law an enhanced federal hate crimes bill that adds sexual orientation and gender identity to the list of protected classes. This added fuel to the fire with many who oppose hate crime laws. Some opponents, mainly religious conservatives argue that these laws violate their 1st amendment right to free speech. They fear being prosecuted for “hate speech” if they were to espouse any personal or religious belief that is not supportive of those protected under hate crimes laws. However, those arguments lack real merit because the laws, as they are currently written do not deal with speech-rather they pertain to violent crimes for the most part. There is no such thing as “hate speech” in federal or state law as it currently exists. If there were, organizations such as the Aryan Nation, the KKK and the Nation of Islam would not be allowed to exist in this country.
Many racial minorities, homosexuals, transgender people and religious minorities have been assaulted and even murdered because of who they are-there is no denying that. It’s also an established fact that the perpetrators of these crimes have either not been prosecuted at all or given light sentences, especially in the Jim Crow South of the 1960s and before. The desire for laws which ensure justice is served is understandable. However, is the solution to disparities the creation of laws which mandate disparities in another direction? Hate crimes laws can result in much stiffer penalties that those in which hate crimes laws do not apply. This results in certain Americans being afforded more protection under the law than others and it is quite rational to conclude that this violates the equal protection clause of the 14th amendment. The U.S. Supreme Court has upheld the stiffer penalties given under hate crimes laws in 1993, but it will be interesting to see if that issue gets revisited in a future ruling.
In conclusion, we as Americans have the right to equal protection under the law. Creating stiffer penalties for crimes against protected classes creates unequal protection and is not the solution. Though I am personally opposed to mandatory sentencing guidelines as a general rule, perhaps the solution to the problem of violence against minorities is to enact mandatory minimum sentences for violent crimes. The injury, maiming or murder of any person is no less or more significant because of one’s race, color, sexual orientation or handicap. Our laws should reflect this and ensure that all violent crime is prosecuted properly. As a society of laws that aims for equality and fairness and that values life, we can do better than simply tipping the scales of justice in the opposite direction and hoping for the best, which is what Hate Crimes Laws do now. We can do better. We must do better.
Three Strikes Laws exist in more than half of all states and in the Federal Government and are really just another version of mandatory sentencing guidelines. Though the provisions of these laws vary from state to state, they share common goals-to reduce recidivism, serve as a deterrent to would be criminals, and to get career criminals off the streets. Who wouldn’t support those goals?
The reality is that many of these laws were poorly written and allow long sentences for non-violent crimes that normally would result in very short jail terms or probation. Who thinks that getting a life sentence (with eligibility for parole after 50 years) is a just sentence for stealing $153 worth of merchandise from a store? Chances are, an armed robber wouldn’t get that long of a sentence-unless he was subject to the provisions of this law. Unfortunately, disproportionate sentences such as this have happened many times, and have even resulted in some states revisiting their Three Strikes Laws.
Some may argue that these criminals are getting what they deserve because they’ve had a pattern of criminal activity in the past. It is even said that laws such as these prevent criminals from preventing more crimes in the future. It was even argued on the website http://www.threestrikes.org/ that in California, 10,000 Californians have been “spared from becoming murder victims” since the passage of California’s Three Strikes Laws in 1994. This statement obviously has no basis in fact, and cannot be proven. How can the author prove that those incarcerated under the Three Strikes Laws would have murdered 10,000 Californians if not for this law? This is a great example however, of how some are using fear to gain the acceptance of the public in the erosion of our rights as citizens.
One may ask, what does this have to do with me? I’ve never been charged with a crime, much less convicted. Who cares about those habitual criminals? We all should. Besides the fact that it has not been proven that these laws deter crime or reduce recidivism, our system is based upon proportional punishment for offenses. We do not put people to death for crimes other than murder, as countries such as Saudi Arabia do. Neither should we sentence people to life in prison for shoplifting or other non-violent crimes. While it is technically not double jeopardy, it does seem to have a similar effect-we're punishing people for crimes for which they've already been punished as much as for the current crime itslef.
Contrary to what many choose to believe, our criminal justice system exists to rehabilitatie, not just to punish. Granted, the current rate of recidivism in our prisons indicates that the current methods of rehabilitation are not working very well. However, to simply lock up repeat offenders and throw away the key is not the solution either. We as a nation cannot afford to sustain the current rate of incarceration, much less support further increases in the prison population that laws such as these may bring. Three Strikes is fine in baseball, but the criminal justice system is too complex for such a simplistic concept. The key to this is to reform the prison system and find new and effective means of rehabilitation. Effective rehabilitation and reduced recidivism rates will accomplish justice in a way that no draconian laws ever will and are in keeping with the ideals of a free and just society.
Much has been written about Mandatory Sentencing Rules . They prevent judges from giving "light" sentences to criminals to committ serious crimes. They keep criminals off the streets and serve as a deterrent to would be criminals. However, the question is, do these laws serve us well, or do they allow disproportionate punishments? What are the implications for our system of checks and balances and the role of the judiciary?
The central issue with these laws relates to the role of judges in our system. Should judges be government bureaucrats who simply enforce laws, or should they be allowed some latitude and discretion? Our system of government was built around a system of checks and balances, and the judicial branch’s role is to interpret the law. Part of their job is to ensure that the “spirit” of the law is followed and that punishments are proportionate to the offense and constitutional. Judges historically have discretion in sentencing, enabling them to appropriately recognize the unique aspects of each case. No two defendants are the same and a “one size fits all” approach does not serve justice well.
Mandatory sentencing guidelines prevent judges from ensuring proportionality in sentencing and interfere with the role of the judiciary. If some judges are giving out “light” sentences that are unwarranted, there should be mechanisms to remove those judges. There are many different approaches to resolving disparities in sentencing, but limiting or taking away judges’ discretion in sentencing has frightening implications If crime “X” results in punishment “Y” with the judge being permitted little or no discretion, then the balance of power is off, giving the Legislative Branch too much power. The criminal justice system at that point becomes like the IRS-where bureaucrats simply read the laws and regulations and apply them, with little or no consideration given to varying circumstances. This is a great example of why balance of power in the branches of our government is essential to the preservation of Liberty.
Suppose you receive a Summons for jury duty. You go to the court house and discover that if you’re selected for the jury, the trial you’ll be hearing will be a high profile murder case. It sounds interesting, possibly exciting, but then the other shoe falls-you find out that your compensation for serving on the jury will be $30 per day. Your employer does not pay employees for time spent on jury duty. You begin to look for a reason to be excused.
The average daily pay for jurors in the United States is approximately $22 per day. Here in Virginia, Fairfax County jurors earn $30 per day and Federal Court jurors earn $40 per day. None of these three rates are even equal to the federal minimum wage of $7.25 per hour for an 8 hour day. Some employers pay employees for time spent on jury duty, but in most states there is no requirement for employers to do so. Those that do generally limit compensation to a specified number of days, which helps if the trial is short, but what do you do if you’re assigned to a trial that lasts for months?
Only those who are independently wealthy, have substantial savings (and are willing to dip into those savings), work for extremely generous companies (and those are few), are chronically unemployed or are retired can afford to sit on a jury for a lengthy trial. Many who do not fit in the aforementioned categories and cannot be excused from jury duty are going to be looking to wrap up the deliberations and get out of there as soon as possible. The result could be that a juror who has doubts about guilt votes guilty just so he can get back to work and stop the financial bleeding. Even if a juror doesn’t consciously make a decision to vote against his or her conscience, the financial pressure could conceivably result in an unconscious decision to participate in Groupthink-as I discussed in yesterday’s post. In any event, the injustice that could result far outweighs saving the taxpayers money by paying jurors peanuts.
So, what can be done about the problem of jury compensation? Obviously we must pay more. Daily compensation for jurors should be at least equal to 8 hours at the federal minimum wage. Trials that last more than two weeks should result in jurors being compensated at a level closer to what they earn. Perhaps reimbursing jurors up to 75 percent of their pay rate if the trial goes over 2 weeks (and their employer is not paying them). One thing is certain-no one should have to chose between paying their mortgage or performing their civic duty. It is not fair to the juror nor is it fair to the accused, and if it is not addressed, we will never realize the dream of equal justice under the law.
In yesterday’s post, I mentioned how juries can be prone to bias and Groupthink, but the focus of the post dealt mostly with the exclusion of minorities from juries. Today I will focus on Groupthink. What is Groupthink? The American Heritage dictionary defines the term as “The act or practice of reasoning or decision-making by a group, especially when characterized by uncritical acceptance or conformity to prevailing points of view.” The danger of Groupthink within a jury is great, especially when there is pressure on minority dissenting jurors to agree with the majority, or on the jury as a whole to deliberate quickly and render a verdict.
While a jury must render a verdict as a group, our system was set up so that when legitimate doubt exists, a person is not convicted, and either an acquittal or a hung jury is the result. However, peer pressure within the jury group to conform to the majority view during deliberations has resulted in convictions even when reasonable doubt still existed in the minds of some jurors. This is a grave miscarriage of justice and should not be tolerated in our society. If they are made aware of pressure placed on a member or members of a jury, most judges will declare a mistrial. But the question one must ask is: How many times have jurors been pressured and been too intimidated or ashamed to reveal that they didn’t agree with the verdict?
So, how can we prevent Groupthink within juries and ensure that all jurors are permitted to think for themselves and vote their conscience, as the founding fathers intended? First, we must ensure that there is diversity within juries. A jury made up of people of any one group or too similar backgrounds can result in similar thinking and create Groupthink. Second, we must eliminate pressure placed on juries by members of the court or outside influences to render a verdict quickly. Jury deliberations should be a time when the evidence is discussed and conclusions are made as to whether the prosecution has met the standard of proof and eliminated all reasonable doubt. If a jury cannot reach a verdict (meaning the members are not in unanimous agreement), a mistrial should be declared based upon a hung jury.
The final way that we can help stop Groupthink in juries is to make it abundantly clear to jurors that pressuring other jurors to agree with the majority and render a verdict will not be tolerated. In all cases where jurors are pressured, criminal sanctions and penalties should be imposed against those exerting the pressure. There must be effective deterrents, or this practice will continue.
The Sixth Amendment guarantees our right to a fair and speedy trial. However, it is not an either/or situation. While a trial should be completed without unnecessary delay, it must also be fair-and a trial can never be considered fair if a jury is not truly unanimous in its verdict. Though mistrials and the resulting retrials can be expensive, it is a small price to pay compared to sending a person to prison or to death row when reasonable doubt may still exist in the minds of some jurors.
• An African-American defendant tried and convicted by an all white jury in a county where 55 percent of the population is African-American.
• A prosecutor dismissed every minority member of a jury pool and then used a racist argument to incite the all white jury to convict the African-American defendant and not let him "get away with it."
Do the above examples sound like incidents from the 1950s or 1960s? Actually, one incident occurred in 1985 and the other in 1995. And by no means are they isolated incidents, such injustices continue to occur. Though it can be argued that we are entitled to a trial by a jury of our peers, there is no such guarantee in the Sixth Amendment. However, the Sixth Amendment does guarantee our right to a jury trial and most would agree that juries should reflect the community from which they are selected.
Unfortunately, juries often do not reflect the local community and can be prone to bias and groupthink. Minority and poor defendants are often tried by all white juries or by juries comprised entirely of people of a different socioeconomic status. A great example of this would be O.J. Simpson. Though he was acquitted when tried for murder (mostly due to having the best attorneys money could buy), his luck ran out when he was tried and convicted of armed robbery in Nevada and sent to prison. This time, the case was heard by a jury that was all white except for one Hispanic member. Defense attorneys are currently claiming jury bias and citing the racial composition of the jury in appeals. Whether there was actually any bias on the part of the jury or not, one really must ask why there were no African-Americans on the jury.
African Americans make up 13.5 percent of the U.S. population, yet in the Deep South they can make up as much as 38 percent of the population. Though we don’t have a right to a jury with members of the same race, one must ask why no minorities are selected for so many trials. Prosecutors are skilled at stacking juries in their favor, and many minority defendants, many of whom are poor, cannot afford an attorney skilled enough to stack the jury in THEIR favor. This may explain in part the high percentage of minorities on death row.
Though we’d like to relegate racism to the past, it is still very much alive, along with classism and sexism. Diversity in our juries is an attainable means to ensure fairness and live up to our ideals and jury selection guidelines should ensure that no jury consists of only one racial, ethnic or socioeconomic group. It is the least we can do to ensure justice is served and discrimination is not perpetuated in the justice system.
If you were standing trial, do you think that you would receive fair treatment from a judge who had recently campaigned as “tough on crime”? While it might be true that the judge does not decide the fate of the accused (unless the right to a jury trial is waived), the judge does still have considerable influence over a case. They can rule on the admissibility of evidence and testimony, approve or reduce a sentence,and much more. Juries decide guilt or innocence, but they do so with the guidance and oversight of the judge.
Federal judges are appointed and as a general rule, are not subject to removal unless proven misconduct is involved. While appointed judges may be biased towards those who appointed them, they do not have to solicit contributions or campaign to keep their jobs as elected judges do. In many states throughout this nation, elected judges preside over criminal cases and appeals. While most are ethical and professional in their conduct, some are not, which creates the perception that the decisions of elected judges are less than impartial.
An example of perception would be the case of Charles Hood in Texas. Convicted of murder and sentenced to death, it was later discovered that the elected judge who presided over the trial was having an affair with the prosecutor. While this may have had no impact on the judge’s handling of the case (to include approving the jury’s sentence of death), the judge’s integrity is definitely in question. Could she have approved the jury’s sentence because of her relationship with the prosecutor? Could she have approved the sentence because she was an elected judge and wanted to demonstrate her “tough on crime” approach for her next campaign? Given that she was willing to hear a case where her lover was the prosecutor, a reasonable person could conclude that she might be less than impartial and less than ethical. Though higher courts have ruled that the affair was irrelevant to her decision, the taint of her unethical behavior lingers and leaves doubts in the minds of many.
The issue of loyalty, impartiality and campaign contributions is nothing new in the world of politics, to include elected judges. It’s little wonder that there is the public perception that judges are biased towards campaign contributors in Alabama and many other parts of the country. The Supreme Court has ruled that judges should recuse themselves from cases where there is a conflict of interest regarding the interests of campaign contributors. Though the ruling dealt with a civil trial involving a large company and not a criminal trial, it highlights the conflicts that are inherent when a judge must launch political campaigns to obtain and keep their position on the bench.
Former Supreme Court Justice Sandra Day O’Connor is one of many advocating for the end of judicial elections. She supports a merit based selection system rather than elections. This would go far in reducing the perception of judicial bias and is absolutely essential for judges involved in criminal cases. Given that liberty and in some cases life itself is at stake in a criminal trial, every measure should be taken to ensure impartial decisions are made and justice is served.
While there are many that want politicians to be “tough on crime," they fail to see past the rhetoric and consider the implications of a judge who is more concerned with setting an example than being impartial. A judge must be an expert in the law who can leave their personal biases and interests aside, hear the facts, and make fair decisions consistent with the law and our constitution. It is clear that even if an elected judge is capable of this, the perception of bias will still remain. We cannot afford such a perception in a free society where all men are created equal.
Everyone who’s watched NBC’s Law and Order knows what a plea bargain is. It is an agreement between the prosecution and the defendant where the defendant pleads guilty to the charges brought against him/her, in exchange for a lesser sentence, or in some cases for the reduction of or dropping of some charges. On the surface, it seems like a win-win situation, the criminal is punished, and the government saves a significant amount of time and money that would have been expended on a jury trial. However, it does not always result in justice.
Currently 90 percent of criminal convictions are secured by plea bargains. This of course means that only 10 percent of convicted criminals were given a jury trial. With such a high rate of plea bargaining occurring within our criminal justice system, it is expected in most cases that a defendant will agree to a plea bargain. When a defendant refuses and demands a full trial, they may face retaliation and pressure by a government that is overloaded and in many cases, underfunded. For the defendant of low to moderate means, this can result in a plea bargain for a crime they didn’t commit, simply out of fear of being given a long sentence if found guilty by a jury trial. This is a real possibility given the track record of some public defenders and court appointed attorneys.
A plea bargain is also frequently used in capital murder cases to allow a defendant the opportunity to avoid the death penalty. Usually resulting in life imprisonment without the possibility of parole and limiting or even eliminating the possibility of costly appeals, this also seems like a good solution on the surface. However, if we truly believe that the death penalty is a just punishment, then why are we allowing some to plea out of it? Many who are sentenced to death weren’t offered a plea bargain, but rather were “made an example of” by prosecutors. While the emotion behind this is understandable, should our system of justice be based on emotions? Should we be sending people to prison for long periods of time or putting them to death because a prosecutor has political aspirations or is trying to send some message?
The fact is, the plea bargain option in our criminal justice system allows prosecutors to pick and choose which cases they’d like to take to trial. It also provides a means for prosecutors to coerce defendants into taking a “deal”, rather than risk a harsh sentence. This results in innocent people pleading guilty and the guilty getting a break that they may not deserve. Perhaps we would be better served by simply implementing the wheel of justice (see demonstration video below). It wouldn’t be much more arbitrary….
In conclusion, this is not what the framers of the Constitution had in mind when they wrote The Bill of Rights. In many ways, the jury trial has disappeared-and we must do everything we can to bring it back. Plea bargains need more limitations placed upon them and there must be a clearly defined and equitable standard for offering them. Coercion and intimidation should not be the cornerstone of our legal system.
Imagine that you’re accused of murder and on trial for your life. You don’t have the money to hire an attorney, and to make matters even worse, you’re in Texas. If you were on trial prior to 1991, your court appointed attorney could have been an attorney with no expertise in criminal law. Fortunately, in 1991, the law was changed and court appointed attorneys must now have expertise in criminal law and pass stringent standards for appointment. However, disparities remain.
A study conducted by Scott Phillips, Associate Professor in the Department of Sociology and Criminology at the University of Denver, of 504 capital murder cases in Harris County, Texas, between 1992 and 1999 revealed that those who hire a lawyer were much less likely to be sentenced to death. The District Attorney pursued the death penalty in only 3 percent of cases where a defendant hired an attorney for the entire case and for 27 percent of cases where a court appointed attorney handled the entire case. The statistics for imposition of the death penalty were even more drastic-NONE of the accused who hired an attorney for the entire case was sentenced to die, but 82 percent of those who were represented by a court appointed attorney were sent to death row.
Many feel that the system of court appointed private attorneys is a better alternative to the often overloaded public defender system that exists in so many states. However, Mr. Phillips’ study finds many problems with the system in Texas. Some attorneys are careful not to anger judges, because they rely on contracted fees from these appointments for a part or all of their income, and angering a judge may result in a loss of future appointments. Judges also are in the position of approving or denying support services and expenses of the defense with a court appointed attorney. Some judges have also been known to make questionable appointment decisions, which further undermine the integrity of the process.
Regardless of whether one supports or opposes the death penalty, most would agree that extra care should be taken to ensure an accused receives a fair trial in a case where his/her life is at stake. Mr. Phillips argues at the conclusion of his report that a Public Defender's Office should be created with funding proportionate to the District Attorney’s Office. It could even be argued that the Public Defender should be funded slightly better than the District Attorney. If the scales of justice must be unbalanced, it should be tipped in favor of the accused, who stands to lose his/her life. Many would argue that in this era of budget deficits and government cutbacks, we cannot afford to increase spending for public defenders. However, if we cannot afford to give a full and proper defense to an accused in a death penalty case, then one has to ask-Can we afford to have the death penalty at all?
When one hears terms like “public defender” or “indigent defense,” one thinks of someone with a low income and no savings or assets. However, the costs of an attorney can range from as little as $500 for representation in a traffic offense to over $25,000 for a felony charge. These charges represent the fees of a single attorney, and do not include costs such as expert witness fees, laboratory test fees and other various charges that may be incurred in a protracted trial. Casey Anthony, who is on trial for the murder of her daughter has already amassed over $275,000 in legal fees and related costs, and her trial is still in progress. Unfortunately for most defendants, they do not receive donations or large amounts of money from a media outlet as Casey Anthony did. As a result, they do not always receive as vigorous a defense as they could.
Private practice attorneys sometimes charge a flat fee for their services, but many charge on a per hour basis. The hourly fee can range from $100 to $300 per hour, but of course, top notch attorneys could charge even more. Hourly fees apply not just to courtroom time, but also to the time an attorney and their staff spend preparing for the case, which generally is far more time than is actually spent in court. A retainer fee is typically required at the time a defense attorney is hired, regardless of whether billing will be a flat fee or a per hour basis. This fee is essentially a deposit to ensure that the attorney will be paid at least some of his/her services, regardless of the outcome of the case. This retainer fee could easily be thousands of dollars and those who cannot afford to pay a retainer often are left with no other alternative but the overworked and underpaid public defender.
As of 2008, the average wage in the United States was $41,334.97 per year. Of course, this is an average-many will earn more and many will earn less. Considering the low savings rate and high debt rate of Americans, it’s easy to see how legal fees could wipe out the savings of many “middle class” people. As if this were not enough, declining wages in the United States combined with rising healthcare costs may result in more people than ever having to resort to public defenders if accused of a crime. It is quite apparent that the concerns of inadequate representation by public defenders is no longer just the concern of the “indigent.”
