by James S. Lawrence

I would like to suggest that there are some things we can do to make our criminal justice system more fair, its actions less oppressive, its results more reliable. If you ever found yourself or a loved-one in the hands of the government, you might very well wish that reforms like this were in place.

So, here are twelve suggestions for criminal justice system reforms:

1. Videotape police interrogations of suspects and child witnesses. In no other way can juries reliably judge the proper weight to give such evidence when ultimately presented in court. More info ...

2. Enforce the right to jury trial, unanimous 12 person jury, and standard of proof beyond a reasonable doubt in all criminal prosecutions. More info ...

3. End the modern role of grand juries as the government's tool of inquisition, and return them to their historic role of judging the government's case. Allow the witnesses to have counsel and a genuine right against self-incrimination that the government cannot get around as easily as they can now. End the long grand jury terms that keep many classes of people off grand juries.

4. Establish a parent-child privilege, similar to the husband-wife privilege, that encourages children to confide in their parents without fear that their secrets will be revealed, and avoids the brutal practice of forcing children against their will to act against their parents and destroy their own families. The parent-child relationship is just as important and worthy of protection as the husband-wife privilege.

5. Require that prosecutors turn over to the defense all information they and the police have about the case and the witnesses, and that they do so as soon as reasonably possible, well before trial. Require that prosecutors follow the same ethical rules as other attorneys.

6. Abandon the practice of consistently using excuses to exclude defense evidence at trial. This would include such things as finding a defense theory "speculative" or "irrelevant." Let the defense present its theory and evidence whether the judge agrees with it or not. Allow the jury to resume its historic role of judging the justness of a possible conviction under the facts and circumstances of the case, so as to act as a check on runaway government power. More info ...

7. Allow a defendant the right and opportunity to complain about his attorney, fire his attorney, and be permitted to get a new attorney, more than once if he feels it is necessary. Some limits on substitutions may be proper, but present practice in many jurisdictions requires the defendant to be stuck with his first lawyer no matter what, even if the lawyer doesn't take the time to investigate, or is deliberately malicious, or insists his client plead guilty when the client insists he is innocent.

8. Reinstate the rule that on appeal, an error is not "harmless error" unless harmless beyond a reasonable doubt. Many unfair trial practices are upheld because of dubious guesswork that the error probably didn't make any difference. See, for example, the 2000 Sixth Circuit ruling in Maurino v Johnson. By that standard, you may as well not have a trial at all, because the defendant would probably be convicted anyway.

9. On appeal and habeas corpus, eliminate the whole pack of legal technicalities such as finality, time limits, deferential standards of review, etc. that require courts to refuse to hear legal claims presented by people who have been convicted. The parade of arbitrary technicalities, beginning with the U.S. Supreme Court case of Stone v. Powell (1976), prevent many prisoners from having their legal issues fairly considered and having justice done. More info ...

10. End drug prohibition, which has never worked anyway, and redirect precious resources to protecting citizens against actual crime. More info ... This will also end the practice of informantism, where any crime can be excused or reduced as long as the criminal is willing to accuse someone else of involvement with drugs, which often leads to injustice. Society will not be harmed by ending prohibition as many high ranking government leaders are former drug users, and if they could be permitted to live their lives without arrest and imprisonment without serious damage to society, so can the people unlucky enough to have gotten caught. More info ... Society will gain real benefits because drug prohibition causes significant increases in crime and violence, much as alcohol prohibition did, and because violent police raids will slow to a trickle, directed only against real crime. More info ... Without the oppression of drug prohibition, youth and minorities will not be so much a constant focus for police harassment, and a violent angry youth culture will have less place to take root.

11. Discard the legal fiction that forfeiture is not punishment, and allow forfeitures only in connection with conviction for a crime. Require the government to prove the facts, instead of requiring the citizen to prove he is innocent. Stop practice of making forfeiture victim pay large sum of money and follow complicated procedures in order to challenge forfeiture. End laws that say that innocent owners can be forced to forfeit property. By ending drug forfeitures, we will remove the major excuse and financial incentive for police to spend their evenings stopping large numbers of cars (as is routinely done in some areas), seizing money from helpless motorists (especially out-of-state motorists) for forfeitures that fund their police departments, until they find a motorist with drugs to arrest. More info ....

12. Reverse the practice of making so many things new federal crimes. Reduce federal criminal jurisdiction to its proper constitutional scope, punishing such things as treason, counterfeiting, and piracy on the high seas, and have the states exercise general police powers. Enforce Ninth Amendment limits on government power. More info .... Maintain a federal presence that will ensure that states and localities treat people fairly and constitutionally.

You will notice that not one of these suggestions deals with sentencing practices. This list is not a plea for leniency. It is a plea for fair treatment by the government, an engine that is so powerful that if not restrained by rules of fairness it could run over us all.

For more information on some of these topics, see the Injustice Line stories on Confessions, Finality, No Juries, Victims, and Prohibition.

Do you have any suggestions for criminal justice system reform? Send them to us!

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