Criminal Justice Equality

http://politicallyuntenable.blogspot.com/2012/07/criminal-justice-equality.html

I bumped the idea around a few times but I'll give a very short brief point form version of my ideas (these ideas are all separate and not mutually exclusive concepts):

Prosecutors and defence lawyers are drawn from a pool created by the state/crown. You cannot hire private defence lawyers in the criminal justice system, you are always appointed one.

Sentencing will slowly shift away from case precedence (useful for consistency) and toward statistical analysis (useful for effective sentencing). That is, if we discover that cases that involve a drug addict are rarely solved (ie. high recidivism rate) with jail time but have a high rate of success with forced rehab, then we shift some sentences away from case precedence set sentences and toward what statistics say will work.

A move away from jury trials. Instead in its place are several possible ideas:

• Standard pool of experts to get an opinion on evidence, not experts brought in by prosecution/defence (ie. an attempt at unbiased experts)
• Professional jurors in place of jurors
• Part-time judges for a judge panel
• More judges for judge panels

edited 2nd Jul '12 8:25:19 PM by breadloaf

I like most of what you posed Breadloaf, but not the replacement of the jury with professional jurors. At least in American society, it's a huge deal that your common man is supposed to be involved in judging your fate.

I figure that's the most contentious part for Americans, I'm not sure if it's that contentious in Europe since many of those countries don't even have jury trials and work just fine (and thus by observation they can see that non-jury trials work well). Personally, I don't see the point of jury trials other than the feel-good thought of being judged by your peers. Beyond that, I don't see any pragmatic reason to have it.

Somehow I don't think most people feel good about anything involving a criminal trial. In any case, the idea of a jury of your peers is that they're not supposed to be biased one way or another, such as someone in a career jury type thing can be. (It was also supposed to cut down on corruption, as I understand it.)

Yes it's flawed, but I see no compelling reason to change this particular aspect of our system. I'm not even sure how professional jurors is supposed to work.

^

^^

Agreed with both of you. Yeah Breadloaf, it is sort of a feelgood gesture, but I don't want someone to make a career out of judging on if someone is innocent or guilty. The point of a jury of your peers is that you're supposed to take common folks and let them objectively look at what happened and decide what is what. I think a professional juror is a bad idea, because what if you just stop caring? "Fuck it. Guilty."

There's a very specific type of person who could successfully be a juror as a career, someone who has integrity and really cares about the truth, and cares about justice. There aren't enough people like that out in the world, and there's no way to guarantee they are the only people who can get those jobs if they were made available.

How about expand jury duty into "you take a few months of training followed by a year as a professional juror, and never do it again"?

Hell, I could get behind judicial conscription: a juror draft. It'd improve levels of civic education and help people understand their legal system.

That would disrupt lives way too much. If employers throw me out in the street for going to Afghanistan for 9 months to a year, imagine what they'll do to a guy who has to be gone for that much longer.

And trust me, the legal protections don't help you much. Employers always find a way to discriminate.

edited 3rd Jul '12 10:06:23 AM by Barkey

A year in the military doesn't screw up Koreans that much.

It's a part of Korean culture, though, and thus their society is structured in such a way as to expect that to be part of the average Korean's life. Not so here, and I don't think many would appreciate the idea of mandatory service in any aspect of life in this country. The idea of the mandatory draft got killed for a reason.

Don't they do it as soon as you come of age though? Or at a specific age?

Also, do we want 18 year olds serving as jurors? And if it's an age past 18, why the hell would you want to throw a wrench into someone who already has or is starting a career?

I think as far as jurors go, what we have is adequate.

edited 3rd Jul '12 12:37:22 PM by Barkey

I'm not sure what ensures that lay jurors keep caring, afterall there's no actual limit on how many times they might get called to do it, and as the pool of actual people who can be jurors (people are chosen typically to be of lower education and so on) is small, the chance of being a juror is not equal for all citizens. It is in fact, exceptionally unequal.

That being said, I expect lay jurors to be attentive and mostly objective. I don't expect them to be able to tell the difference between an expert spewing bullshit and one that isn't. I wouldn't expect them to know anything about law or case precedence. I don't expect them to have specialised knowledge about evidence. I don't expect them to know any statistical trends in justice or in sentencing. Professional juror systems usually limit the length of time someone can sit as a juror (I've heard the number 7 years float about).

Canada has long had a system in which the judge finds guilt/innocence except in jury trials (defendants can request such if the case is large enough). So, I've never found a jury to add any value to a trial except as a faint hope of acquittal in "open-shut" cases by trying out stupid emotional arguments. Judges in Canada get pretty angry if you try to pull technical bullshit or emotional arguments.

I remember in one trial for a guy accused of terrorism, the crown prosecutor brought in an "expert" on bomb making and the police officer went on and on about the technology for about 5 minutes. At that point the judge got angry and told the police officer that if his only person was to attempt to confuse him with highly technical terms then he should shut his bullshit up and leave. It was embarrassing for the prosecution. There's something to be said about highly educated judges acting as determiner of guilt/innocence, they have a very high bar when it comes to their bullshit filter.

Judges never stop caring, for the most part, it's their entire career. They make up a very small percentage of the population and I think we can certainly find enough that can do the job well and without political interference. To be honest, I'm not entirely sure what the difference in selection process is between the American and Canadian supreme court, but the approval rating of the US supreme court is between 40-50%, whereas the Canadian one enjoys 70%. Canada has managed to keep politics out of the court system for the most part but it's a little hard to tell, to me, what does it (although we only have appointments and no elections for judges, so that might be one reason)

@Barkey: You're expected to do it before or right after you graduate from college. It's not strictly enforced (i.e., they won't arrest you unless you make a big deal of protesting against the draft), but the cultural expectation is such that if you don't have verifiable military service on your resume, most Korean employers will turn their noses up at you and ask why you didn't serve. You can get exemptions; a friend of mine avoided service due to a medical condition.

I can see making the juror draft an open thing, has to be done before age 30 but can be entered as early as 21. That's a nine year window that syncs with the usual age of graduation, forgiving enough I should think.

There's a problem with that. The military is a self-sustaining complex, complete with its own camps for housing and operations. A juror draft would mean the jury system would need to make something likewise.

Part of it is indeed, as Ace said, cultural differences. Americans are just not used to having a draft system embedded directly into their lives.

Now having a jury system with benefits, much like with veterans, might be a nice idea, but I think a full draft is at the very least difficult to implement.

Not everyone goes to college you know, what if I'm in a trade program? Usually takes four years to go from being an apprentice to a journeyman.

I just can't approve of disrupting peoples lives like that.

An honours degree takes 4 years, a non-honours degree takes 3 years, collage can take 1.5-2 years, trade apprenticeships usually take 5 years, cooperative honours degrees usually take 5 years. I think the 9 year window should be shifted down a bit to age 17-26, or between 17-30. Anyway, I don't agree with a draft. Waste of money.

My personal preference is part-time/full time judges. Equality costs some money.

Judges are already full time more often than not. We were discussing jurors.

@ Barkey

No no, I mean, you don't have jurors. You have more judges to replace the function of jurors (ie. judge panels).

It would be like say, the Swedish system that has no jurors but rather has all judge panels. Except in their case they use lay judges, I rather use real judges.

I don't think Americans would go for that, they would feel like something was afoot and that the government was trying to take regular people out of the loop.

I'm not saying it makes sense, but Americans are hypersensitive to certain types of things. Very few Americans like doing jury duty, but at the same time as soon as the headlines hit that someone was trying to get rid of being tried by a jury of their peers, Americans would cry conspiracy. It's just how we are.

.. I honestly do like jury duty. But I've only been picked once, my affiliation with law enforcement kind of makes me a defense lawyers nightmare as a juror.

edited 3rd Jul '12 4:35:44 PM by Barkey

You actually got through the selection process?

Yep. I was never asked about my military affiliation, and I didn't volunteer it since they didn't ask since I wanted to be on the jury. As far as they knew I was just some dude who was a security guard.

When they asked what my dad did, I mentioned that he was a retired master sergeant, which he was, but from the Guard. I didn't talk about how he's a 20 year LAPD veteran.

Sure, there were factors I didn't volunteer on purpose, but the fact that defense lawyers often try to find the stupidest and most uneducated fools as possible to be on the jury is equally, if not more dishonest.

It was a civil case anyway, so law enforcement experience and affiliation wouldn't have had anything to do with if I was impartial or not. Lawyers just tend to reject candidates who actually know anything about the law themselves, that's why an appeal on the emotions of the jurors is such a common tactic. They try to turn it into a game of who the jurors feel sorry for or who they support, not who actually broke the law. That's how people get off in cases where it's very clear that they committed a crime, lawyers make jurors who are seeing through a clouded lens of emotion cast their vote based on if they support the action of the defendant or not, not on if they actually broke the law.

edited 3rd Jul '12 4:48:45 PM by Barkey

Which is primarily my beef with jury-trials. In Canada you choose whether you get a judge or jury trial, and I'm going to wildly assume your defence lawyer suggests which will have a higher chance of success. I think they primarily base it on whether the emotional arguments will be in the favour of the defendant or not.

I don't think that helps with making the justice system more accurate.

Actually, in America you can request that a judge decide the verdict. While everyone has the right to a jury of their peers, nothing says they can't waive that right.

And according to something I heard recently, over 90% of criminal cases are resolved using plea bargains without ever going to trial.

edited 3rd Jul '12 6:36:31 PM by RavenWilder

Yes, very few trials make it to full court because they can get better deals via plea bargaining. It currently is an "essential" part of our justice system because we don't actually have the capacity to go through with 100% of the cases (we'd start dropping cases like crazy because of the right to speedy trials).

That's not exactly how I'd like to have "speedy" trials, I'd rather people actually have gone through the system and that it is very quick but short of using awesome computers to insta-acquit/insta-convict you, I'm not sure how else to deal with that particular issue.

edited 3rd Jul '12 6:53:07 PM by breadloaf

How is a lay judge not a real judge?

I just can't see anyone suggesting we get a mandatory year long stint of being on juries as being taken seriously. Forcing us to do something isn't going to make us any more likely to give a fuck.

A lay judge is usually a local official, bureaucrat or politician.