CRIME AND PUNISHMENT DEPT.

Radical Ideas for Criminal Justice Reform

Mark Draughn

February 12, 2007

Mike at Crime & Federalism posted a complaint about plea bargaining:

It has turned our system into one that is supposed to convict the guilty and free the innocent into a risk-management system. It has turned lawyers into actuaries . “Is going to trial worth the risk?” is what lawyers ask clients. Innocence has little to do with the decision to take a deal.

I’m not entirely sure that risk management is a bad thing.

In any case, I tried to imagine how to fix Mike’s complaint and came up with an obvious question:

So what’s the alternative? Prohibit guilty pleas and make the state prove every crime?

To which Mike responded:

Yes. If that would take too much time, then then the state should hire more prosecutors.

And more judges. Or else the state could carefully decide which crimes are really worth prosecuting. That would work for me.

As long as we’re proposing radical changes to the criminal justice system, I have a few crazy ideas I’d like to put out for discussion. These are not mutually consistent, but I think any one of them just might be an huge improvement. They’re mostly intended to set the right incentives for the players in the game.

Reverse Truth-In-Sentencing

If you’re charged with a felony, the prosecutor might offer you a deal in which you plead guilty but serve no time. Most people leap at such a deal, only to discover in later years that having a felony on your record causes all kinds of trouble, including enhanced sentencing for future offenses.

For purposes of your criminal record and everything that depends on it, I propose that if you don’t serve felony time—a full year—it doesn’t count as a felony. This would apply if you plead out or if you are released from prison for any reason whatsoever. If the state doesn’t think your crime is serious enough to keep you in prison for a full year, then they have no right to say you have a felony criminal record.

Performance Pay for Indigent Defense

Ken Lammers has complained often about the poor pay schedule for indigent defense. It got me thinking: If you pay indigent defense lawyers by the hour, they have an incentive to stretch cases out as long as possible. But if you follow the usual practice and pay a fixed-fee per case, you are giving them an incentive to plea cases out as fast as possible. Neither of these is the right incentive.

My proposal is to pay indigent defense lawyers for their performance. Make the D.A. specify the desired sentence when charges are filed, and then make the defense fee proportional to the number of years knocked off the sentence through trial or plea bargaining. This should be easy to fund since keeping a convict in prison typically costs around $20,000 per year. If the defense lawyer reduces a sentence by 3 years, he saves the state $60,000, which would be far more than his fee. Think of his fee as a bounty for finding a way to save the state so much money.

One of the biggest benefits of this proposal is that it would give prosecutors an incentive to avoid over-charging a case, since they will be blamed for the defense lawyer’s massive fee when only minor charges are proven. This will make both trials and plea bargaining more efficient.

Punishment in Lieu of Exclusion

The exclusionary rule says that if the police are found to have obtained a piece of evidence illegally, then it cannot be used against the defendent. Opponents of this rule rightly point out that it rewards criminals for the misbehavior of cops. Wouldn’t it be better, they say, to admit the evidence but punish the lawbreaking cops?

The problem is, that never ever happens. For this reason, the courts created the exclusionary rule to remove the incentive for cops to break the law to obtain evidence. Presumably, if cops started getting punished for breaking the law, the courts would stop excluding evidence.

So let’s do that, on a case-by-case basis.

If a judge rules that a piece of evidence was obtained illegally, allow the prosecutor to immediately indict the responsible police officers for “improper evidence obtainment,” a newly-created crime with a mandatory minimum sentence of, say, 60 days in jail. If the officers are convicted and sentenced before the main criminal case goes to trial—easily done if the prosecutor and the officer have agreed ahead of time that the officer will plead guilty immediately—the illegally obtained evidence is allowed back in.

Thus, the prosecutor and the police can override the exclusionary rule at any time if they are willing to pay the price.

This policy will also take some of the pressure off of judges, since excluding evidence will no longer be likely to free heinous criminals. More on this in the next section, which is a more radical solution to the same problem.

Limited Incarceration Without Trial

They say that hard cases make bad law. If a judge is faced with a terrible crime such as a brutal sexual homicide of a child, and some key piece of evidence was found only because the cops on the case broke the law, the judge is supposed to throw out the illegally-obtained evidence. The criminal would be set free to commit more crimes.

Any judge making or reviewing such a decision is going to hate the idea of letting a brutal criminal escape, so he’s going to be very tempted to find some way to carve out a new exception to the exclusionary rule. If the crime is brutal enough, that’s not necessarily a bad thing. The problem, however, is that once an exception is created, it becomes a permanent part of the criminal justice process. Cops will then be able to use the same otherwise-illegal method to gather evidence over and over. This is the bad law that results from the hard case.

My proposal is that each State should be able to imprison a small number of indicted criminals without having to convict them. This power could be vested in the Governor, but it should be strictly limited, proportional to the population of the state, perhaps allowing one incarcerated person for every 500,000 people in the state. Once the limit is reached, the governor has to let one go to put another one in.

This would allow the worst of the worst to be imprisoned even if the cases against them have technical flaws. I know that imprisonment without trial is a terrible thing, but the trade-off is that judges wouldn’t have to worry about being blamed for setting evil people free just because they followed the law. After all, if these people are really evil, the prosecutor can always ask the Governor to imprison them anyway. If that doesn’t happen, it’s on his head at least as much as the judge’s.

In this way, hard cases will be much less likely to make bad law.

No Miranda Warning

I tend to lean pro-defense (perhaps because I’ll never be a prosecutor or a cop, but I might be a defendent someday), so here’s one for the prosecution: Eliminate the Miranda warnings.

I’ve never understood why cops give Miranda warnings. I mean, yes, the things they warn you about are very important, but isn’t it your responsibility to know these things?

Besides, these warnings are deceptive. If you wait until you receive your Miranda warnings to exercise your right to remain silent, you’ve probably already said too much.

Anyone else have any bright ideas?

5 responses

Jon Katz
February 12, 2007
Hi, Mark- Responding to your attached request for comments, I reply briefly. A full response could take countless pages.
As to plea bargaining, all litigants (both criminal and civil) must have the right to negotiate or not negotiate settlements to cases. For criminal cases where I practice (Maryland, Virginia, DC and the federal courts), the judge has the option to accept or reject a guilty plea. A problem with the federal sentencing system is that it penalizes people for going to trial (and losing) rather than pleading guilty without a trial. Sentencing Guidelines or none, I do not like when judges penalize defendants for requiring the prosecutor to try to prove their guilt beyond a reasonable doubt at a trial.
Regarding reverse truth in sentencing, as you call it, beyond consequences for future convictions, a wide range of felonies and misdemeanors can cause massive havoc on non-U.S. citizens’ immigration status, as well as on receiving government benefits, security clearances, and job and educational status. Certainly, we have an overly draconian criminal justice system (for many reasons) that places too much currency on the characterization of past convictions for such considerations as mandatory minimum sentencing, sentencing guidelines, and penalties for violating probation and parole.
As to your remaining suggestions, I do not believe in chipping away at any rights the courts have confirmed exist for criminal defendants. The Miranda case is particularly sacrosanct and has withstood decades of attacks, sometimes more wounded as a result. If any existing criminal defendants’ rights are to be lost, that should only be as a result of a defendant’s waiver of those rights, and not as a result of the rights being removed by anybody else.
Thanks for requesting my comments. Jon
—
Jon Katz
Criminal Defense Lawyer for MD, DC & VA
MARKS & KATZ, LLC
Silver Spring, MD 20910, (301) 495-4300
Underdog Blog: http://markskatz.com/JusticeBlog
Jon,
Mike at Crime & Federalism just suggested eliminating plea bargaining by eliminating guilty pleas. That gave me some crazy ideas of my own, and I’m looking for comments in the same spirit:
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Matt
February 12, 2007
Miranda warnings are pretty irrelevant at this point in history anyway. Everyone who watches television knows that if they’re arrested they have the right to remain silent, consult an attorney, and have the state pay for their representation if they can’t afford to. Hell, criminals in other countries, where such rights are not offered, consider themselves entitled to them anyway, on the basis of having watched American cop shows.
I certainly hope you’re kidding about that whole “authorizing incarceration without conviction” thing.
The present state of jurisprudence on admissability of evidence may be a travesty (and it is), but replacing it with the power to incarcerate American citizens on a whim is most definitely not the answer. I think I’d be quite justified in asserting that the day such a thing is seriously proposed is the day that violent revolution should start. Anyone who thinks such power would be used against violent criminals in preference to political opponents is hopelessly naive.
At least under the present system, a person has to either be so likely to be guilty that they get convicted by a jury, or so well-compensated that they plead guilty even though they’re innocent, before they can be sent to prison. Both of these metrics could stand a great deal of improvement, but they’re better than the “you go to jail because the Governor doesn’t like you” standard.
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Mark Draughn
February 13, 2007
The “authorizing incarceration without conviction” thing is the result of my trying to figure out how to discourage judges from carving out so many exceptions to the rules that they lose their meaning. I’m not really serious, but there’s a certain disturbing logic to my reasoning:
I’m assuming that judges are doing this because they dislike the final outcome of the specific case before them if they don’t find an exception. That’s my understanding of “hard cases make bad law.”
I suppose one choice would be to avoid picking judges who do that, but that wasn’t a very radical idea. Instead, I asked: How do you change the incentives for judges so that they stop doing this?
Thinking in terms of incentives, one thought was to give judges some way to make a one-time-only exception. This would give judges a way to avoid an undesirable outcome in a specific case, without establishing a precedent. We’ve removed the incentive for creating unfortunate exceptions to the rules.
However, without fear of establishing a bad precedent, we’ve also removed the incentive for judges to ever follow the rules. We’ve eviscerated the rule of law.
One solution to that problem is to cap the number of times this power can be used, so judges will only use it when absolutely necessary. However, even as little as once-per-year-per-judge seemed far too often. But if there are fewer chances to use this power than there are judges, then the power will have to be rationed by a central authority, some statewide office…such as the Governor.
Once we allow someone outside the judiciary to override court rulings, we might as well admit that we’re creating a power to imprison people without due process and call it what it is.
I think of it as sort of a mirror image to the Governor’s power to pardon.
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Gideon
February 13, 2007
Isn’t “Limited incarceration without trial” just a modified plea bargaining process?
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Jon Katz
February 13, 2007
Replying to Matt’s attached excerpt:
Miranda warnings are critical not only to show that the suspect has been ADVISED of the right to remain silent, but also to establish that the suspect knowingly and voluntarily WAIVED those rights.
Police are well-trained to convince people to waive their Miranda rights, including ignoring the invocation of such rights by continuing to pressure the suspect to talk (e.g., by the cop’s making a phone call in the suspect’s presence after the suspect says s/he’ll take the Fifth: “Yeah, the fool’s refused to talk. We can’t do anything for him if he won’t talk to us,” or by angrily saying in response “Have it YOUR WAY!!!,” bursting out of the room, and slamming the door shot (perhaps to have another cop, in the “good cop” role, show up to gently escort the suspect to the cell.
The very fact that so many people know about the Miranda rights may make them wonder whether they’re only entitled to remain silent AFTER those rights are read. Cops routinely seek statements from suspects BEFORE arresting them, because Miranda rights do not need to be read to people who are not in custody. Cops know that Miranda warnings yield fewer statements from suspect.
I’ve written more about Miranda here:
http://markskatz.com/blog2/serendipity/archives/20-When-Ernesto-Miranda-applies-little-more-than-Carmen-Miranda..html
Posted by Matt | February 12, 2007 22:51
Miranda warnings are pretty irrelevant at this point in history anyway. Everyone who watches television knows that if they’re arrested they have the right to remain silent, consult an attorney, and have the state pay for their representation if they can’t afford to. Hell, criminals in other countries, where such rights are not offered, consider themselves entitled to them anyway, on the basis of having watched American cop shows.
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