Fair DP

IDEALS/ABSTRACT

“Criminal Justice System”“Fairness and justice for all”

“Equality under the law”“Checks and balances”

“Best legal system in the world”

Reinforced by the media, education, etc.

Fair DP

“The law, in its magnificent equality, forbids the rich and the poor alike

from sleeping under bridges”

(old French Proverb)

Fair DP

The reality of our “criminal justice system” is a “dual system” -- something approaching the

“ideal” system for those who can afford it (very few)

and a “cut rate” patchwork system for those who can’t afford more (the vast majority of those

caught up in the system)

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.

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”)

Fair DP

So nobody seems to even want to ask -

WHAT WOULD A “FAIR DP” LOOK LIKE?

Opponents? Proponents? Courts?

Fair DP

1. FAIR SELECTION PROCESS

PROBLEM:

Massive systematic discrimination against poor people & against minorities accused of crimes against white victims

Fair DP

SOLUTIONS:

• Improve indigent representation to match the resources of the prosecution & reduce prosecutor discretion.

• Raise the threshold for capital offenses (eliminate medium culpability cases).

• Use statistical evidence to monitor outcomes(appoint special courts to manage statistics).

Fair DP

2. FAIR TRIALS PROBLEM:

Unequal resources leads to sham trials

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SOLUTIONS:

• Equal resources: start with ABA recs:

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.

Fair DP

• Abolish "death qualified" juries

(this could be done by using separate jury panels for the “verdict phase” of trials and the “penalty phase”

• Note: these would entail huge additional system costs.

Fair DP

3. FAIR & EFFECTIVE APPEALS PROCESS

PROBLEMS:

Unequal resources and access to appeals

Procedural focus of appeals process

The waiver problem

Fair DP

SOLUTIONS:

• Equal resources, pay, budget for appeal preparation.

• Expand appeals process into substantive review.

• Abolish the waiver system.

• Abolish time limits for new evidence.

Fair DP

4. NON-POLITICAL FINAL REVIEW

PROBLEMS:

Restricted legal review, political nature of commute review (“passing the buck”)

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!!)

Fair DP

SOME COMPLICATIONS

(why none of the above will likely happen)

Fair DP

1. Jurisdiction problem:

this could only be done at the federal level (as a Constitutional issue)

If the federal govt reached this point it would be simpler to just abolish the death penalty again

Fair DP

2. Cost:

if federal government mandates it, should the federal government pay for it?

Yes, necessary for a fair uniform system

Fair DP

3. Political problem:

no incentive for changing present system

4. Consistency vs. “individualized” justice

Fair DP

5. Mistakes that slip through even the best and fairest process.

Would execs still increase homicide rates (brutalization effect)?

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!!