You’re innocent, the criminal justice system is guilty

Glenn Reynolds’ column in USA Today, Our criminal justice system has become a crime

The combination of vague and pervasive criminal laws — the federal government literally doesn’t know how many federal criminal laws there are — and prosecutorial discretion, plus easy overcharging and coercive plea-bargaining, means that where criminal law is concerned we don’t really have a judicial system as most people imagine it. Instead, we have a criminal justice bureaucracy that assesses guilt and imposes penalties with only modest supervision from the judiciary, and with very little actual accountability. (When a South Carolina judge suggested earlier this year that prosecutors should follow the law, prosecutors revolted.)

In a recent Columbia Law Review essay, I suggest some remedies to this problem: First, prosecutors should have “skin in the game” — if someone’s charged with 100 crimes but convicted of only one, the state should have to pay 99% of his legal fees. This would discourage overcharging. (So would judicial oversight, but we’ve seen little enough of that.) Second, plea-bargain offers should be disclosed at trial, so that judges and juries can understand just how serious the state really thinks the offense is. Empowering juries and grand juries (a standard joke is that any competent prosecutor can get a grand jury to indict a ham sandwich) would also provide more supervision. And finally, I think that prosecutors should be stripped of their absolute immunity to suit — an immunity created by judicial activism, not by statute — and should be subject to civil damages for misconduct such as withholding evidence.

If our criminal justice system is to be a true justice system, then due process must attach at all stages. Right now, prosecutors run riot. That needs to change.

The fact The Innocence Project even exists and that 314 people in the United States have been completely exonerated by post-conviction DNA evidence, some after serving decades of time in prison for a crime they didn’t commit, is further testament that our criminal justice system has become a crime.  The facts of the case of Pottawattamie County, Iowa v. McGhee are all anyone needs to know to see that absolute immunity for prosecutors should be abolished. The case was going to be heard in the U.S. Supreme Court where it was expected that the Court would address the immunity issue, but it was dismissed in 2010 when the parties settled.  Pottawattamie County reportedly paid several million dollars to settle the case which involved prosecutors framing an innocent man for a murder. He serve 25 years before his innocence was established.

Book recommendation: Three Felonies a Day: How the Feds Target the Innocent, by Harvey Silverglate.

See also my post from August 20, 2013, When the Law Loses its Moral Stature