Monday, September 30, 2019

Swiftness, Certainty, And Justice

The editorial board of the Philadelphia Inquirer is perturbed about the stack of bills approved by the House Judiciary Committee in Pennsylvania, controlled by the GOP, ostensibly addressing crime. The editors are right about gun safety and wrong about sentencing. It notes

Instead of sound gun control legislation such as closing background check loophole and requiring safe storage of guns, lawmakers instead advanced a bill to “ensure the protection of Second Amendment Rights during declarations of emergency" by repealing laws that allow for restriction of gun carrying during an emergency or disaster. The committee also advanced bills that would make it easier to travel in a motor vehicle with a firearm without a permit, remove the requirement that tasers have a label with an instruction of use, and allow individuals and organizations like the National Rifle Association to sue localities that pass gun related ordinances (a similar law passed in 2014 and the Pa. Supreme Court struck it down on procedural grounds).

The editors continue "but these aren't even the worst." However, they are the worst because the principles embodied in the other legislation are largely, basically sound.

God is in the details and I don't know the details. Neither are they included in the editorial because it is an editorial and not an analytical piece by criminologist or even crime reporter. But we read

The research in criminology is clear: if you want to deter crime, swiftness and certainty of punishment is what matters -- not the severity of the sentence. Mandatory minimums do not make communities safer. They are, however, used as leverage to pressure plea deals -- robbing usually black and indigent defendants from their Sixth Amendment right to a fair and speedy trial. The mandatory minimums and stacking of sentences would also reverse the progress that the commonwealth -- to say nothing of the nation -- has achieved on reducing its prison population.

If swiftness and certainty of punishment is critically important- and it is- mandatory minimums and "stacking of sentences" (penalties for offenses to run consecutively, rather thanconcurrently) are useful tools. Both practices add certainty to sentencing. Offenders know (if they so choose) that commission of, for example, a third violent offense will result in a state prison sentence. Similarly, mandatory minimums assure a potential offender that the Judge would be required to sentence him to not less than a specific term of incarceration.

The editors lament "leverage (used) to pressure plea deals," and coercing defendants into pleading guilty is a major blot upon the criminal justice system. However, "stacking of sentences" does not slow down or delay sentencing- and mandatory minimums speed up the process when they enhance certainty.

The editors yearn for "black and indigent defendants" to be guaranteed their constitutional right to a fair and speedy trial, an important provision for the provision of justice to all defendants, black and non-black. Moreover, even most middle-class defendants are de facto coerced into a plea bargain and, as the editors presumably would understand, thus denied a fair shot at demanding the state prove their guilt.

Lawyers do not come cheap, trials do not come cheap, and if the accused cannot afford a private attorney, they may be denied adequate representation. The dirty little secret of the criminal justice system is that in most states, only the wealthy can afford a private attorney, while the others take their shot with an overworked court-assigned attorney.

Consequently, there are wiser approaches than to end consecutive sentences and minimum sentences.  Each state should have an adequately staffed system of public defenders in which the poor are afforded free representation and middle class defendants can be represented at rates which will not require them to go into hock for the next 30 years.

There should be a vast expansion of the number of judges because "justice delayed, justice denied" is not merely a slogan. However, judges should not (as in some states) select the defense attorney, which encourages conflicts of interest. The lawyers should instead be part of an independent agency of state or county government.

More radically, there needs to be drastic reform of the grand jury system, which Pennsylvania and approximately 22 other states employ.  When there is no defense attorney and no judge, only the prosecutor presents a case, only "probable cause" need to be demonstrated, and only to a majority of grand jurors, the defendant is turned into a ham sandwich.

At trial, the defendant must be proven guilty beyond a reasonable doubt. However, unable to afford a private attorney, most defendants plead guilty, thereby effectively being denied a jury trial. If the prosecutor wants to indict an individual, she probably can, and the accused will plead guilty rather than going through a time-consuming, extremely expensive trial. Were an indictment more difficult to obtain, there would be fewer trials- which are conducted at great expense to the public- and fewer individuals, guilty or innocent of whatever ethnicity, sent to prison.

Yet, the grand jury system remains a sacred cow, evidently immune from criticism. Its restructure, as well as more judges and an effective, well-funded system of public defenders would reduce the number of prison inmates, and do so while protecting the public far better than eliminating "sentence stacking" and minimum sentences. And please- stop electing judges.

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