DP - Fair DP

IDEALS/ABSTRACT

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

“Checks and balances”“Best legal system in the world”

Reinforced by the media, education, etc.

DP - Fair DP

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

from sleeping under bridges”

(French Proverb)

DP - Fair DP

The reality of our “criminal justice system” is a

“dual system” -- the “ideal” system for those

who can afford it, and a “cut rate” patchwork

system for those who can’t afford more.

DP - 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.

DP - 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”)

DP - Fair DP

So nobody even wants to ask -

WHAT WOULD A “FAIR DP” LOOK LIKE?

Opponents? Proponents? Courts?

DP - Fair DP

1. FAIR SELECTION PROCESS

PROBLEM:

Massive systematic discrimination against

poor & min/white (and minority victims!)

DP - Fair DP

SOLUTIONS:

• Improve indigent representation & reduce prosecutor discretion.

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

• Use statistical evidence as a guide (appoint special courts to manage statistics).

DP - Fair DP

2. FAIR TRIALS PROBLEM:

Unequal resources = sham trials

DP - Fair DP

SOLUTIONS:

• Equalize resources: start with ABA recommendations:

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.

DP - Fair DP

• Abolish "death qualified" juries.

• Note: these would entail huge additional system costs.

DP - Fair DP

3. FAIR & EFFECTIVE APPEALS PROCESS

PROBLEMS:

Unequal resources, procedural focus,

waiver problem

DP - Fair DP

SOLUTIONS:

• Equal resources, pay, budget for appeal preparation.

• Expand appeals process into substantive review.

• Abolish the waiver system.

• No time limits for new evidence.

DP - Fair DP

4. NON-POLITICAL FINAL REVIEW

PROBLEMS:

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

DP - 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!!).

DP - Fair DP

SOME COMPLICATIONS

(why none of the above will likely happen)

DP - Fair DP

1. Jurisdiction problem:

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

DP - Fair DP

2. Cost:

if federal government mandates it, the

federal government should pay for it?

Yes, necessary for a fair uniform system

DP - Fair DP

3. Political problem:

no incentive for changing present system

4. Consistency vs. “individualized” justice

DP - Fair DP

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

Would execs still increase homicide rates

(brutalization effect)?

DP - 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!!