Week 4, Entry 2: Three Strikes-not just for baseball anymore...

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.

Week 4, Entry 1: Mandatory Sentencing-Justice or Travesty?

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.

Week 3, Entry 3: Jury Duty-a civic obligation and a hardship?

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.

Week 3, Entry 2: Juries and Groupthink-a recipe for disaster?

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.

Week 3, Entry 1: A jury of your peers...

• 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.

Week 2, Entry 3: Elected judges, judicial bias and perception.

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.

Week 2, Entry 2: The Plea Bargain: Justice or a deal with the devil?

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.

Week 2, Entry 1: A Real Estate Attorney for a Capital Murder Case?

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?

Week 1, Entry 3: Can you afford an attorney?

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.”

Week 1, Entry 2: If you cannot afford an attorney, one will be provided for you...

A public defender in Los Angeles, California starts out making just $38,000 per year. This is after spending 7 years in college and well over $100,000 on tuition, not to mention passing the bar examination. They work long hours and if they're lucky, after many years on the job they earn as much as $86,000 per year-a mere fraction of what senior attorneys in private firms can earn. Of course, salaries for public defenders are affected by frequent government spending cutbacks, so many never see that upper end of the salary range.

School teachers in Los Angeles fare better, with the lowest salary on their pay scale being $45,637 per year, requiring only a 4 year degree and teaching credentials. Unfortunately, low pay and long hours are commonplace in just about every area of the country for public defenders. This keeps the best and brightest law school graduates from even considering work as a public defender. Many that do either burn out from the extreme workload and/or move on to greener pastures in private practice after a short tenure. With 66 percent of federal felony defendants and 82 percent of state defendants being represented by public defenders there is no shortage of work, and in the end, it is really the accused that gets the short end of the stick.

Some might ask, can’t we just require all of those private practice attorneys, some of whom earn well into the six figures, to represent the poor? Some states such as Alabama do just that, with the court appointing an attorney who is a member of the local bar to represent indigent defendants. However, that’s no guarantee that an attorney skilled in criminal law will be appointed. Additionally, because they are earning a fraction of their normal fee while defending these clients, some will spend as little time as possible preparing a defense. A wealthy person can easily hire an attorney who will provide the vigorous defense that is needed in any criminal case. But the indigent must hope for the luck of being appointed a dedicated attorney willing to essentially donate the time and resources to provide such a vigorous defense.

Although funding is tight for most government entities today, the system for the defense of those who cannot afford an attorney in most states is not sustainable. The federal and state governments must come up with ways to ensure a vigorous defense for those accused of a crime. Our great nation was founded on the principles of liberty and justice for all, but justice cannot be obtained when the prosecution is more skilled and has more resources than the defense. Fortunately, there are groups out there campaigning for reform. Let's all hope that they succeed.

Week 1, Entry 1: Does justice go to those who pay?

For many in America today the notion of “equal justice under the law” is a foreign concept. There is a growing perception that the wealthy can obtain a fair trial, but the poor all too often cannot. The Louisiana Justice Coalition conducted a survey in 2006 in which “Seven in ten voters (69%) say a rich person gets treated better than a poor person in the Louisiana justice system.” Authors such as Sister Helen Prejean and organizations such as The Innocence Project have documented such disparities between the rich and the poor. The most famous example of how wealth can affect the outcome of a case can be seen in the O.J. Simpson trial.







Douglas O. Linder at The University of Missouri-Kansas City School of law maintains an extensive website on O.J.’s trial which contains a chronology, excerpts and more. Many have argued that O.J. was acquitted because of the use of “the race card” on the part of Johnny Cochran. While racial issues were a strategy of the defense, the fact is that O.J. was acquitted because he could afford the “Dream Team” of some of the very best attorneys, including F. Lee Bailey, Johnnie Cochran, Alan Dershowitz and Robert Kardashian. Whether or not one agrees with their arguments, the skill of these attorneys is evident in the clip below of Johnnie Cochran:



While many factors were responsible for his acquittal, it is doubtless that his attorneys were the ones who made all the factors work to their advantage. If O.J. Simpson had been an average citizen of moderate to modest means, would he have been acquitted? Many have been sent to prison for the rest of their lives or executed for similar crimes. What makes them different? Was there more evidence against them? Was the jury biased? Was their attorney unskilled and/or overworked? While it is indisputable that each case has its own unique circumstances, it can be reasonably assumed that had O.J. been an ordinary citizen, living in Texas, for example, the outcome would have been quite different.

Another more recent example of this theory is Phil Spector. Relatively unknown outside of the music industry, he nevertheless had plenty of money, and hired the best attorneys. Though he was ultimately convicted, it was of 2nd degree murder with a sentence of 19 years to life. As if that were not enough, he was free on bail from the time of the death of his victim in 2003 until his ultimate conviction in 2009. What other than the wealth to obtain the best attorneys could explain this? It certainly wasn’t his good looks or charm that got him the breaks!