Let me state upfront that I am wondering this after watching "Making a Murderer" on Netflix. And that nearly all my knowledge of the US legal system comes from Making a Murderer and countless episodes of Law & Order.
In Making a Murderer, Avery's attorney explains that if the state wants someone convicted, they up the stakes by increasing the number of charges. So someone is facing let's say 5 charges, each with jailtime, and then you can plea bargain confessing to two, because at that point the chance to get fully acquitted is low. Either way, the state gets it's way: the suspect is going to prison. So it seems the system is designed to favor the state and the whole litigation proces, at least from the states perspective, prioritizes getting a conviction over determining guilt .
Without this being about Avery specifically, how can this be considered fair? Shouldn't the main purpose of a trial be that you determine if someone is guilty or not. If yes, then determining the proper punishment is step two. If not, you let them go and look further for the person that is guilty. Also, I can't see how plea bargains should have a place in this process at all.
The US has this system for a long time now so I'm probably missing something, but can someone explain to me why the way it works is considered just and fair?
While there is no doubt that some shady ***** or malicious prosecution can occur, in the United States, certain crimes have varying degrees of severity, each with their own min/max sentences for committing them. Murder, rape, and robbery are the most common and first degree murder carries a much stronger sentence than second degree murder, with one of the few differences being intent. If intent cannot be proven in a case, and the only charge the prosecutor brings up is first degree murder, a person could be found innocent.
In the 80s and 90s, a lot of would be rapists ended up getting released because the charge was rape, but the state definition of what took place was sexual assault, so the jurors by legal definition had to find the perpetrator to be innocent (there was also a much different attitude of rape victims back then, but that goes beyond the scope of the question).
The short answer to your question though is that often times, Prosecutors want to make sure they have their bases covered. Many cases that have multiple charges are usually of the same crime, but simply trying to account for what they can prove. Have manslaughter ready if murder can't be proved, or sexual assault ready if rape cannot be proved.
While there is no doubt that some shady ***** or malicious prosecution can occur, in the United States, certain crimes have varying degrees of severity, each with their own min/max sentences for committing them. Murder, rape, and robbery are the most common and first degree murder carries a much stronger sentence than second degree murder, with one of the few differences being intent. If intent cannot be proven in a case, and the only charge the prosecutor brings up is first degree murder, a person could be found innocent.
In the 80s and 90s, a lot of would be rapists ended up getting released because the charge was rape, but the state definition of what took place was sexual assault, so the jurors by legal definition had to find the perpetrator to be innocent (there was also a much different attitude of rape victims back then, but that goes beyond the scope of the question).
The short answer to your question though is that often times, Prosecutors want to make sure they have their bases covered. Many cases that have multiple charges are usually of the same crime, but simply trying to account for what they can prove. Have manslaughter ready if murder can't be proved, or sexual assault ready if rape cannot be proved.
I can see how that works for crimes that are basically just legal degrees of severity for the same thing. But let's take murder for example. I think the primary question should be: given all the circumstances, is the suspect guilty/responsible for the death of person X? If the answer is no, then the suspect is free to go. If the answer is yes, only then do you come to determine the severity of it (first degree, second degree, manslaughter etc from which also follows a proper punishment.
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While there is no doubt that some shady ***** or malicious prosecution can occur, in the United States, certain crimes have varying degrees of severity, each with their own min/max sentences for committing them. Murder, rape, and robbery are the most common and first degree murder carries a much stronger sentence than second degree murder, with one of the few differences being intent. If intent cannot be proven in a case, and the only charge the prosecutor brings up is first degree murder, a person could be found innocent.
In the 80s and 90s, a lot of would be rapists ended up getting released because the charge was rape, but the state definition of what took place was sexual assault, so the jurors by legal definition had to find the perpetrator to be innocent (there was also a much different attitude of rape victims back then, but that goes beyond the scope of the question).
The short answer to your question though is that often times, Prosecutors want to make sure they have their bases covered. Many cases that have multiple charges are usually of the same crime, but simply trying to account for what they can prove. Have manslaughter ready if murder can't be proved, or sexual assault ready if rape cannot be proved.
I can see how that works for crimes that are basically just legal degrees of severity for the same thing. But let's take murder for example. I think the primary question should be: given all the circumstances, is the suspect guilty/responsible for the death of person X? If the answer is no, then the suspect is free to go. If the answer is yes, only then do you come to determine the severity of it (first degree, second degree, manslaughter etc from which also follows a proper punishment.
What usually happens instead is that each crime has a recommended minimum and maximum sentence. The punishment doled out is for the most part, at the discretion of the judge, that can be influenced by testimony both by the defendant.
But the question is more important than anything. Let's take your example of murder and make it more specific. Neither party is denying person A killed person B, but person A is claiming it was self defense. How do you charge person A? It could still have be 1st degree, but it also could have been man slaughter, or not murder at all. What you are suggesting would be basically a 2nd trial to determine intent, which then determines the severity.
The point with thievery is a little weirder since unlike murder, intent doesn't separate the degrees of thievery, but usually the amount taken. Different states have different thresholds, but if you steal say less than $300, it is considered petty theft. Anything above that amount would be considered Grand Larceny, or a vehicle would be considered Grand Theft Auto. The multiple charges increase with the severity of the theft: Did you rob a person with the use of a weapon? Did you steal from a house with no one in it (so no potential physical harm)? Did you hold someone against their will? A person who tied up a hostage, and held them at gun point while stealing jewelry will not get as much leniency as someone who took a video game from a store and ran.
"Either way, the state gets it's way: the suspect is going to prison."
Aren't you assuming guilt here? I mean if the person is actually innocent then they presumably could dispute the charges and walk. Not that the court works perfectly every time, but if there isn't evidence that you committed a crime it isn't like they can just make up a bunch of charges and assume one will stick.
"Either way, the state gets it's way: the suspect is going to prison."
Aren't you assuming guilt here? I mean if the person is actually innocent then they presumably could dispute the charges and walk. Not that the court works perfectly every time, but if there isn't evidence that you committed a crime it isn't like they can just make up a bunch of charges and assume one will stick.
You are giving the criminal justice system way too much credit. If you can't afford a decent lawyer, you're screwed. Public defenders are ridiculously swamped with way more case work than they can handle, and will often recommend that you take a plea deal even if you're innocent. John Oliver did a piece on this actually and one of the more shocking things was the discovery that PDs in New Orleans were assigned so many cases that they were only spending an average of 7 minutes on each case. I actually spent more time writing / proof reading this post than was spent by an actual attorney on trying to help an innocent person not go to prison. Then you also have to consider that many can't afford bail, there's the cost of being out of work to attend court dates, and the looming threat of spending years of your life in jail for something you didn't do because of overzealous prosecution.
What you are describing is actually exactly what happens, and it's no wonder that 90-95% of those people take the plea deals even if they're innocent.
I see what you are saying, but I don't agree with the OP that the "upping the charges" is the real problem in the system here. There are tons of issues in the system, that just seems like an odd one to harp on IMO, one that wouldn't be an issue at all if the other larger underlying things you are describing were taken care of.
While there is no doubt that some shady ***** or malicious prosecution can occur, in the United States, certain crimes have varying degrees of severity, each with their own min/max sentences for committing them. Murder, rape, and robbery are the most common and first degree murder carries a much stronger sentence than second degree murder, with one of the few differences being intent. If intent cannot be proven in a case, and the only charge the prosecutor brings up is first degree murder, a person could be found innocent.
In the 80s and 90s, a lot of would be rapists ended up getting released because the charge was rape, but the state definition of what took place was sexual assault, so the jurors by legal definition had to find the perpetrator to be innocent (there was also a much different attitude of rape victims back then, but that goes beyond the scope of the question).
The short answer to your question though is that often times, Prosecutors want to make sure they have their bases covered. Many cases that have multiple charges are usually of the same crime, but simply trying to account for what they can prove. Have manslaughter ready if murder can't be proved, or sexual assault ready if rape cannot be proved.
I can see how that works for crimes that are basically just legal degrees of severity for the same thing. But let's take murder for example. I think the primary question should be: given all the circumstances, is the suspect guilty/responsible for the death of person X? If the answer is no, then the suspect is free to go. If the answer is yes, only then do you come to determine the severity of it (first degree, second degree, manslaughter etc from which also follows a proper punishment.
What usually happens instead is that each crime has a recommended minimum and maximum sentence. The punishment doled out is for the most part, at the discretion of the judge, that can be influenced by testimony both by the defendant.
But the question is more important than anything. Let's take your example of murder and make it more specific. Neither party is denying person A killed person B, but person A is claiming it was self defense. How do you charge person A? It could still have be 1st degree, but it also could have been man slaughter, or not murder at all. What you are suggesting would be basically a 2nd trial to determine intent, which then determines the severity.
The point with thievery is a little weirder since unlike murder, intent doesn't separate the degrees of thievery, but usually the amount taken. Different states have different thresholds, but if you steal say less than $300, it is considered petty theft. Anything above that amount would be considered Grand Larceny, or a vehicle would be considered Grand Theft Auto. The multiple charges increase with the severity of the theft: Did you rob a person with the use of a weapon? Did you steal from a house with no one in it (so no potential physical harm)? Did you hold someone against their will? A person who tied up a hostage, and held them at gun point while stealing jewelry will not get as much leniency as someone who took a video game from a store and ran.
Yeah, it's not so clear cut with every case I understand that. But you could separate the trial process by first determining the facts of what happened, where both sides argue their position as to why they ware doing what they did etc. And then a second part where, once the relevant facts are determined and the intent with which they happened are clear, you try to translate this into one or more actual crimes (if any) and determine the punishment. Of course, if there is not enough evidence to determine exactly what happened beyond a reasonable doubt, then you never get to the point of what crimes exactly are comitted. But this way does seem to put the state and the defendant on more equal footing. It's probably not perfect either, but seems more fair to me?
"Either way, the state gets it's way: the suspect is going to prison."
Aren't you assuming guilt here? I mean if the person is actually innocent then they presumably could dispute the charges and walk. Not that the court works perfectly every time, but if there isn't evidence that you committed a crime it isn't like they can just make up a bunch of charges and assume one will stick.
This is exactly what happened with Steve Avery. If you haven't watched the Netflix documentary "Making a Murderer" I recommend you do. The fact that it is a true story bring more fear to me than any horror movie ever could.
I tried googling the part of where Dean Strang explains the problem I refer to in the OP to give you a link, but could not find it. So you'll either have to take my word for it or apply some Google-fu of your own
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On this idea that the prosecution has to pick which of 1st degree, 2nd degree, manslaughter, so on, to charge you with and stick to it, just wait. Back the truck up.
There is a legal concept called the “merger doctrine”, and “lesser included offenses”. A lesser charge is one where every element is also an element of the greater charge. You can charge murder and convict manslaughter, but you can’t charge manslaughter and convict murder. So, the prosecution is always incentivized to bring the highest charge that they believe, under their duty as an officer of the court, that the facts warrant. The jury will always be instructed that they can convict on any lesser charge, unless that charge includes some element that the more serious crime didn’t.
So, the charge at court will always be ratcheted up to what they think someone actually did. And prosecution does have to list this out to the defense attorney before the hearing. So if they tempt the defendant with a plea deal for a lesser charge, and someone thinks having a greater charge anywhere on the table is unfair, that is just perception. Prosecution threatening with a murder charge means that they think murder was committed. Practically speaking, the most prevalent motivation for prosecution to offer deals is because they are overworked. Thinking they are just frivolously upping the stakes to browbeat people has it backwards.
I mean, I thought that even grade school teachers by now were teaching that "innocent until proven guilty" means it's really hard for the state to bring charges. In any event, here is a quick list of protections against prosecutorial abuse. I’ve tried to sort them from most direct to least:
1) Standing Trial for the Charge – If you think you are innocent and you’re being prosecuted anyway, what would be the weight behind the prosecution upping the charges? What evidence do they have, and how did they get it if you’re innocent? Answering those questions will make it really easy for a defense attorney to defend you. And for all criminal charges in the US, the state has to provide a defense attorney at their expense unless you choose your own.
2) Contesting How You Got Caught – If you really didn’t do it, how did you end up in police custody? There are multiple ways that cops can go wrong in catching you, and as I am reminded recently, cops have less training than cosmetologists. There are a number of highly likely things that they did in apprehending an innocent person. Even if they came to your house and busted through the door, they need a warrant for that. Even at that point, it has to come from a judge, and judges have to abide by certain standards of evidence in granting a warrant for seizure.
3) Grand Jury (felony cases) – If you are charged with a really serious crime (felony) in some states, there will be assembled a Grand Jury on the question of whether to indict you for it. There is basically complete secrecy in these meetings, and no oversight whatsoever. The prosecution has to provide evidence to convince them. But if people sympathetic to you are impaneled in a grand jury, they can prevent the prosecution from indicting and no one will ever know about it. If they are not sympathetic to you after they see the evidence, why aren’t they? Either they didn’t watch Law and Order, or they don’t believe these scenarios are as common as TV presents, or there’s just too much evidence.
4) Adversarial Hearing on Indictment – Even in cases without a Grand Jury, the defense attorney’s professional obligation to serve his/her client begins before the hearing, and the prosecution has to share evidence. If your attorney isn’t compelled by the evidence, what is the basis for the prosecution to threaten to up the charges?
5) Judgment Notwithstanding the Verdict – Ok, you’re innocent, you went to trial on bad evidence, and the jury convicted you. Your attorney will make a motion to the judge for JNOV. Now, the judge has to personally okay it.
6) Automatic first Appeal as of Right – If your attorney, the jury and the judge all let you down, you can appeal any criminal conviction without the burden of stating any grounds for it. So now, two different judges have to okay your conviction.
7) Appealing the conviction on Civil Rights grounds – If you somehow got convicted on a really crappy case, both your attorneys were on auto-pilot, and the judge was against you, why would that be? If it’s because of something about you like race, religion, national origin, etc, then you have grounds for appeal that don’t have anything whatsoever to do with any evidence for the actual charge. If you have evidence of prosecutorial malice, or even statistics in your area showing the likelihood of prosecutorial abuse (incarceration rates, etc), then an appellate court can overturn your conviction.
8) Appealing on the grounds of ineffective counsel – Ok, somehow your attorney didn’t mention that there are countless of these mechanisms of the state in the way of you getting convicted, and he misinformed you that you were screwed even if innocent. Your next attorney will tell you how wrong he was, and you get out of jail free just because your lawyer was bad.
9) Electing a different government – District attorneys are elected in a lot of jurisdictions, and appointed by the executive in others. Judges are the same. Also, the state legislature will usually include in the criminal code what the minimum and maximum penalties are for a charge. If the best and brightest in the society are codifying criminal charges with way, way more penalties than they should have, such that the prosecution is always armed with the threat of bringing a stiffer penalty, why is that? Are you sure it’s just because they all don’t like you?
Jusstice (what's in a name) you obviously have way more knowledge than I do on the US legal system. The way you describe the checks and balances in the system, I can see how that can catch a lot of errors. However, what this seems to bypass is that these people are all members of the public legal community. And people have a tendency to not want to rock their oen boat. Now I van imagine that is not much of a problem in a big city with millions of people. But in smaller communities, I believe it is human nature to cover for one another. After all, we all make mistakes and when you do, you need your colleagues to cover for you as well. And that undermines a lot of the checks and balances you mention i think. Because nearly all appeals are done in the same state. That's what happened to Avery.
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It starts with the high price of lawyers, which connects back into the overpriced nature of law school. It costs $60k for a doctorate in economics, it costs $150k for a law degree. The risk/rewards to being a lawyer are skewed that there's a lot of high competition for high salary starting jobs, but the debt is what gets you. That and the BAR exam is also a problem. There is a need for skilled lawyers at every level, but by using chaining each new lawyer with debt it increases the need to find high paying jobs to pay off high debt.
If young lawyers were able to graduate with no to little debt, we would see more private practices open up. Young lawyers doing the DUI's and speeding tickets, then moving up to be prosecutors and defense attorneys in large cases. That is the system, but I would fathom that as lawyers would go up and down the pike. For instance a lawyer who was raising 2 children would perhaps not want to work for a high end law firm and just do some small cases to bring in money and maintain work experience until their children were older. On and off ramps for careers, and not encumbering people with debt.
It's mostly the pipeline into the work environment that is the problem for young people, as well as the off ramps for people with children to come back to the work force. Fix those aspects of the working world, and you open a world of difference.
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It starts with the high price of lawyers, which connects back into the overpriced nature of law school. It costs $60k for a doctorate in economics, it costs $150k for a law degree. The risk/rewards to being a lawyer are skewed that there's a lot of high competition for high salary starting jobs, but the debt is what gets you. That and the BAR exam is also a problem. There is a need for skilled lawyers at every level, but by using chaining each new lawyer with debt it increases the need to find high paying jobs to pay off high debt.
If young lawyers were able to graduate with no to little debt, we would see more private practices open up. Young lawyers doing the DUI's and speeding tickets, then moving up to be prosecutors and defense attorneys in large cases. That is the system, but I would fathom that as lawyers would go up and down the pike. For instance a lawyer who was raising 2 children would perhaps not want to work for a high end law firm and just do some small cases to bring in money and maintain work experience until their children were older. On and off ramps for careers, and not encumbering people with debt.
It's mostly the pipeline into the work environment that is the problem for young people, as well as the off ramps for people with children to come back to the work force. Fix those aspects of the working world, and you open a world of difference.
I understand what your saying and I think that's an issue too, but that in and of itself does not explain why a system that seems geared for getting convictions through plea bargains is just?
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It starts with the high price of lawyers, which connects back into the overpriced nature of law school. It costs $60k for a doctorate in economics, it costs $150k for a law degree. The risk/rewards to being a lawyer are skewed that there's a lot of high competition for high salary starting jobs, but the debt is what gets you. That and the BAR exam is also a problem. There is a need for skilled lawyers at every level, but by using chaining each new lawyer with debt it increases the need to find high paying jobs to pay off high debt.
If young lawyers were able to graduate with no to little debt, we would see more private practices open up. Young lawyers doing the DUI's and speeding tickets, then moving up to be prosecutors and defense attorneys in large cases. That is the system, but I would fathom that as lawyers would go up and down the pike. For instance a lawyer who was raising 2 children would perhaps not want to work for a high end law firm and just do some small cases to bring in money and maintain work experience until their children were older. On and off ramps for careers, and not encumbering people with debt.
It's mostly the pipeline into the work environment that is the problem for young people, as well as the off ramps for people with children to come back to the work force. Fix those aspects of the working world, and you open a world of difference.
I understand what your saying and I think that's an issue too, but that in and of itself does not explain why a system that seems geared for getting convictions through plea bargains is just?
I get charged with a crime, if I can afford a lawyer and fight the charge it forces an economic decision. If a DA knows that a person is able to get "good defense" they will be more likely to go through the case through an investigation rather than charge shenanigans.
There is another thing we're not talking about. Voting versus appointed DA's. Nifong from the Duke Lacrosse rape scandal was elected. Prosecution out of the "get tough on crime" approach from the 1970's and 80's was the crack epidemic. So conservatives latched onto the idea of get tough on crime, which they wanted more quantifiable aspects. Conviction rates were a part of this for getting tough on crime and sending people to jail as a way to remove evil from society.
As we know today, high incarceration rates mean little if recitivism rates are high. Then there is the issue of mercy bookings and the mentally ill. The prison system is the largest mental health provider in the nation. Nifong himself is the poster child of why you don't want elected DA's, because he needed to look good in front of the electorate.
So we are dealing with 3 separate issues:
1. Elections of judges and DA's basing their success rate on convictions
2. Expensive lawyers
3. Inability for society to deal with the mentally ill
From there we do the legitimate people who do belong in jail at least for a time and then transitioning those people back into society. We do have some statistics, such as men over the age of 27 are less likely to go back and engage in violent crimes. There are some areas of data we can deal with and readily work with.
You need to take each issue one at a time.
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True as that might be, That would make the discussion to broad for me because I do not know enough about the workings of the US to be able to discuss this properly.
All I know (or think i know) is that privatizing prisons like they do in the US is just wrong on so many levels. Morally, because prisones for profit is borderline slavery. Socially, because proper rehabilitation costs money so privatized prisons will cut that short or entirely. Politically, because the responsibility for the inmates has been shifted to the corporations so politicians feel exonerated for the fate of these people.
US army doctrine says tht if you conquer it you own it, and it's yours to look after. The same holds true for inmates: society felt they had to be locked up, then it's up to society to look after these people properly.
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It starts with the high price of lawyers, which connects back into the overpriced nature of law school. It costs $60k for a doctorate in economics, it costs $150k for a law degree. The risk/rewards to being a lawyer are skewed that there's a lot of high competition for high salary starting jobs, but the debt is what gets you. That and the BAR exam is also a problem. There is a need for skilled lawyers at every level, but by using chaining each new lawyer with debt it increases the need to find high paying jobs to pay off high debt.
If young lawyers were able to graduate with no to little debt, we would see more private practices open up. Young lawyers doing the DUI's and speeding tickets, then moving up to be prosecutors and defense attorneys in large cases. That is the system, but I would fathom that as lawyers would go up and down the pike. For instance a lawyer who was raising 2 children would perhaps not want to work for a high end law firm and just do some small cases to bring in money and maintain work experience until their children were older. On and off ramps for careers, and not encumbering people with debt.
It's mostly the pipeline into the work environment that is the problem for young people, as well as the off ramps for people with children to come back to the work force. Fix those aspects of the working world, and you open a world of difference.
To begin with, this seems entirely bass-ackwards. We are hurting for qualified attorneys, so let’s reduce the costs spent on law degrees? We need incentives for attorneys to open private criminal defense practices instead of having kids, so let’s reduce the debt for each graduating attorney? Passing the bar is a problem? If someone has to take on debt, attend a school with highly compensated professors, and pass a bar exam, wouldn’t that serve to incentivize them make good on their investment and practice law, rather than de-incentivize them to do so? Wouldn’t that ensure better quality representation for the accused in the justice system?
Maybe if people were just deciding against becoming lawyers for these factors we would have a problem, but just to be clear on the facts, there is no shortage of attorneys whatsoever. There are so many that the legal community is currently wondering whether the back log of all the recently graduated attorneys will ever be worked into the profession. Lots of out of work attorneys would love Criminal Defense work, or even to stand by and assist with Criminal Defense work on a volunteer basis, but other attorneys are out-competing them for it. And even pre-2008 recession days, it was a minority of those working as attorneys who ever actually had to take a case to court.
Also on top of there being so many attorneys in the US, the US has what are possibly the highest minimum standards for attorneys in the world, as measured by years of education, worldwide educational rankings, the number of law school applicants as a ratio to admissions rates, and the ratio of those who take the state bar exams against those who pass. If you need further evidence, look at the trade surplus of services exports delivered by US legal professionals to other countries. The world values US legal professionals more than the US values theirs. So, it’s hard to argue that these factors weigh against the effectiveness of the legal professionals in the US justice system, relative to the rest of the developed world.
So in summary, if you are arguing that the reason prosecutors favor plea deals is because defense attorneys are terrible, what you are talking about is, at worst, the bare minimum standards to be licensed in the profession (public defender’s office) in an adversarial negotiation with what probably amounts to a slightly below average line of work in terms of compensation and prestige (DA’s office). An abundance of lawyers and very high minimum standards in the US both weigh heavily against the argument that Public Defenders are just getting their rears handed to them in these negotiations. And that’s only if you buy the idea that public defenders are the dregs of the profession, where from what I’ve seen it’s a little the opposite, that trust-fund darlings are the ones to be overly enamored with Criminal Defense work and Constitutional Law, and have the least concern with low compensation.
I get charged with a crime, if I can afford a lawyer and fight the charge it forces an economic decision. If a DA knows that a person is able to get "good defense" they will be more likely to go through the case through an investigation rather than charge shenanigans.
There is another thing we're not talking about. Voting versus appointed DA's. Nifong from the Duke Lacrosse rape scandal was elected. Prosecution out of the "get tough on crime" approach from the 1970's and 80's was the crack epidemic. So conservatives latched onto the idea of get tough on crime, which they wanted more quantifiable aspects. Conviction rates were a part of this for getting tough on crime and sending people to jail as a way to remove evil from society.
As we know today, high incarceration rates mean little if recitivism rates are high. Then there is the issue of mercy bookings and the mentally ill. The prison system is the largest mental health provider in the nation. Nifong himself is the poster child of why you don't want elected DA's, because he needed to look good in front of the electorate.
So we are dealing with 3 separate issues:
1. Elections of judges and DA's basing their success rate on convictions
2. Expensive lawyers
3. Inability for society to deal with the mentally ill
From there we do the legitimate people who do belong in jail at least for a time and then transitioning those people back into society. We do have some statistics, such as men over the age of 27 are less likely to go back and engage in violent crimes. There are some areas of data we can deal with and readily work with.
You need to take each issue one at a time.
1. When have you ever come across campaign ads for a Judge, or even a DA? The average cable news watching voter doesn't care at all about these offices, or even understand what they do. The only factor I see that could possibly weigh in here is whether they’re putting either a (D) or an (R) next to their name on the ballot, or leaving it off. With party affiliation, it only shifts the power of appointment from the executive (as it would be where the office it not elected) to the partisan machinery of the primary process. Without party affiliation, the vote is essentially blind.
2. As above, huh??? The US justice system compels the State to appoint a Public Defender for all criminal charges. And any economic factors that might be driving up the costs for legal services would only serve to raise the minimum standards for the profession, which are already the highest in the developed world.
3. I’ll grant that there is some intersection between the public health system and the justice system, but what’s the alternative? Besides, most people believe the opposite, that standards for “insanity defenses” are still too low.
I think it's fair to say that if you're being prosecuted with multiple awful charges on the line, you probably deserved at least some of them.
I realize this isn't always the case, but if you have someone you know is guilty of something and they get off due to circumstantial evidence or a warrant signed in the wrong place, don't you want to be able to dole out some degree of justice?
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If seven minutes of time to prepare my case is the highest standard in the developed world, what the hell does every other country do for their citizens? Public defenders are laughably overworked and underfunded.
As I understand it, they're generally not taking each other to court over basically trivial things, at least not to the extent that it happens in America.
If seven minutes of time to prepare my case is the highest standard in the developed world, what the hell does every other country do for their citizens? Public defenders are laughably overworked and underfunded.
As I understand it, they're generally not taking each other to court over basically trivial things, at least not to the extent that it happens in America.
We are gradually getting that way over here with lots of no win no fee companies cropping up. But other than diluting the pool of people able to become Public Defenders that won't have any issue on the situation at hand. Where there is not enough spent on the relevant offices so even if there were lawyers willing to become public defenders there is not the budget for them, despite the growing demand.
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1. When have you ever come across campaign ads for a Judge, or even a DA? The average cable news watching voter doesn't care at all about these offices, or even understand what they do. The only factor I see that could possibly weigh in here is whether they’re putting either a (D) or an (R) next to their name on the ballot, or leaving it off. With party affiliation, it only shifts the power of appointment from the executive (as it would be where the office it not elected) to the partisan machinery of the primary process. Without party affiliation, the vote is essentially blind.
2. As above, huh??? The US justice system compels the State to appoint a Public Defender for all criminal charges. And any economic factors that might be driving up the costs for legal services would only serve to raise the minimum standards for the profession, which are already the highest in the developed world.
3. I’ll grant that there is some intersection between the public health system and the justice system, but what’s the alternative? Besides, most people believe the opposite, that standards for “insanity defenses” are still too low.
Bwahahahaha, because public defenders suck at the state level. They used to be good at the federal level, until cut back started.
Debt is evil. It binds you, it's not an "incentive." It's more like, "I'm going to smack your butt with a paddle if you don't clean the dishes." Whereas more lawyers are motivated by "I got to help someone out!" or "This case is extremely complex, and I can use my analytical ability to think through all this paper work." Don't confuse disincentives with incentives. IF a person wasn't going to enter a field, they would have done so.
There's a demand for lawyers to fight local cases, and there's a demand for public defenders. What you seem to neglect is that I want more of a free market for young lawyers to prove themselves without having to be burdened by unnecessary debt.
70k'year in Canada is pretty good living.
You know what? Who I am to judge how much debt someone should have for an education? What really makes me feel special to say what people should pay for college.
Here's the thing. Lawyers are necessary to transmute legalistic garbage into practical results. Period.
Doctors being heavily encumbered by debt, makes then incentivized towards making money. Then we get more boob and ****** repair specialists than GP's.
Chasing money and raising the price of an attorney pr doctor fee per hour is ludicrous.
So we tried high debt with high education, created an education bubble. Let's go back to what works, capitalism without all the socialism. Low debt margins increases individual wealth, which then opens up people to spend more money to create other jobs.
We're using a "Sith mentality" for a "Jedi problem." Which means "greed" isn't the largest motivating factor here.
Debt is the problem, it creates fear and panic. The good side of self interest, that is the acquisitive towards resources to protect oneself against, well, poverty is natural to man.
Instead I see student debt like a gambling addiction. "Skin in the game" means nothing to me.
If the person is a fully actualized person by the time they graduate high school, then they will naturally want to be independent. "Giving" someone a discounted education is called grace and even then law degrees are overpriced and overpromised for results. This has been a continuing trend with colleges.
Society is already waking up to the college lie, parents are having children focus on STEM degrees.
But this is also a problem with Human Resources. No nontransferable skills, you must have the exact degree. Overqualified for an entry level job, blah blah.
The whole system is rigged.
Maybe it's time we stopped worrying about the students and looked at the employers and saying. "Hey the kids' got a law degree, might be worth hiring her for something above lettuce chopper."
The system is borked. Period. Defending it in its totality is confusion. There are fewer business being created by young people as compared to other depressions and recessions. That's because of the debt problem.
The issue with the legal field, is mostly that there's a cap on lawyers to limit the amount of lawyers so it does not bring down the average wage of a lawyer. If you saturate a market, wages go down. So there is protection being had at by holding back young lawyers with a paddle rather than freeing them to persue their trade.
[quote]Professional guidelines recommend that public defenders handle no more than 400 misdemeanor cases in a year, yet a 2009 report found that part-time public defenders in Orleans Parish handled the equivalent of 19,000 misdemeanor cases per attorney annually — which means an average of about seven minutes spent by a lawyer on each case. http://www.nytimes.com/2013/09/08/opinion/sunday/federal-oversight-on-public-defense.html
Does that sound like the minimum standards of the profession are helping those who must rely on public defenders? If seven minutes of time to prepare my case is the highest standard in the developed world, what the hell does every other country do for their citizens? Public defenders are laughably overworked and underfunded.
First off, I would resist boiling issues down so far that they can become Twitter hashtags and made-to-order statistics. The NY Times writes an editorial on a report of a report, and now the message is whatever people want it to be.
If you read the report from the National Association of Criminal Defense lawyers, it actually only has the New Orleans public defenders office at 7 minutes per case, and only for “part-time” attorneys. It has every other public defenders office at about an hour per case. If the outlier is held out as the chief finding, that’s a tilted agenda.
More missing details, the report was specifically about conditions in misdemeanor courts from 2008 projected into the future, and we are using that here to explain why “Making a Murderer Happened”, which documents a 1985 felony charge in Wisconsin.
Besides, X number of minutes may be enough, maybe not. I have gotten a lot of things done in seven minutes. It takes a successful examinee on the Multistate Bar Exam (MBE) an average of 1 min 45s to answer a question that is intended to represent a challenge. And attorneys probably type and send e-mails at between 20 and 40 words per minute. It depends on details like administrative support that vary widely between jurisdictions, and are too nuanced to delve into in a way that would be digestible on the national debate stage.
Don’t get me wrong, I’m not saying that there isn’t a problem with Public Defenders being overworked. What I am saying is that minimum standards do exist for both systemic oversight and individual attorney ethics, they are higher than the rest of the developed world, and a much more nuanced look than what a Netflix documentary provides is really needed to draw any conclusions. The report in the NY Times OpEd even states that the increasing caseloads pose a risk to the attorneys being disciplined for ethical issues. So the system seems to be holding itself accountable to defendants.
With the expense issue, I think you're missing the point. Attorneys are so debt ridden from law school that they cannot afford to take cases from people who aren't at least moderately well off. Taking on cases for people who can't afford to pay them anywhere near the amount they need to bring in to pay off their loans is basically financial suicide; that's the problem. We need to drive the cost of law school down so that these attorneys can actually afford to compete for poorer clients and still make ends meet.
That’s saying that I’m so broke I can’t afford to work. Huh…?
I mean, I’m all for reducing the cost of law school as long as it doesn’t interfere with the world-renowned quality of that education (and good luck there). But to be clear, the alternative in a profession suffering from underemployment is underemployment. It’s not just to take better compensating work in some other area of law. Given the alternative between making $20/hr as a Public Defender and making $15/hr doing unqualified administrative work, what do you think an attorney will choose? If it’s underemployment, it’s because some other grad out-competed the rest for the job with the Public Defender.
Also on the Federal Student Loans system generally, the amount due on payments caps out at 15% of a grad’s disposable income (10% for new grads under the Obama plan). Even if someone were at this crossroads between making 40k/yr as a public defender and 100k/yr as a real estate attorney, that decision is about whether to drive a new Mercedes or a used Kia, not whether you can “make ends meet”.
I'd also like to point out that while I personally do not generally care about DA / judge elections, I assure you that there are some people who do, and these judges / DAs are highly incentivized to sell themselves to these people by boasting high conviction rates because that's what people tend to use as a method of measuring their effectiveness. It's clearly a stupid thing to do if you're interested in putting justice first, but until we can dispel this notion and get people to stop using this ridiculous metric, it's going to continue on this way.
To redirect here, it’s not just about voter apathy. It’s apathy on the issues of relevance to the office of DA or judge, and ear-splitting passion on partisan storylines, like gender-neutral bathrooms, which have no relevance to the justice system. So for those of us, like myself, who have listened to a DA candidate campaign, it is more about virtue-signaling and pretending you are getting softball questions from a cable news anchor than it is about the administrative oversight of the justice system. About the most hot-button issues they will talk on relative to criminal justice is the legalization/decriminalization of marijuana and/or immigration issues, which are still outside the purview of an office that is supposed to be enforcing policy rather than enacting it.
I have heard no DA ever claim that they're the best for the job by getting higher conviction rates. At least in all the states where I've lived, I'd be very surprised to hear a campaign platform anything like that. But neither have I heard anything like a candidate claim that they are an administrative expert, reduced inefficiency by X% at a hospital or some such, and that they have a plan for reducing case loads. The local elections process does happen, but this seems like a non-issue to both sides.
Debt is evil. It binds you, it's not an "incentive." It's more like, "I'm going to smack your butt with a paddle if you don't clean the dishes." Whereas more lawyers are motivated by "I got to help someone out!" or "This case is extremely complex, and I can use my analytical ability to think through all this paper work." Don't confuse disincentives with incentives. IF a person wasn't going to enter a field, they would have done so.
There's a demand for lawyers to fight local cases, and there's a demand for public defenders. What you seem to neglect is that I want more of a free market for young lawyers to prove themselves without having to be burdened by unnecessary debt.
70k'year in Canada is pretty good living.
You know what? Who I am to judge how much debt someone should have for an education? What really makes me feel special to say what people should pay for college.
Here's the thing. Lawyers are necessary to transmute legalistic garbage into practical results. Period.
Doctors being heavily encumbered by debt, makes then incentivized towards making money. Then we get more boob and ****** repair specialists than GP's.
Chasing money and raising the price of an attorney pr doctor fee per hour is ludicrous.
So we tried high debt with high education, created an education bubble. Let's go back to what works, capitalism without all the socialism. Low debt margins increases individual wealth, which then opens up people to spend more money to create other jobs.
We're using a "Sith mentality" for a "Jedi problem." Which means "greed" isn't the largest motivating factor here.
Debt is the problem, it creates fear and panic. The good side of self interest, that is the acquisitive towards resources to protect oneself against, well, poverty is natural to man.
Instead I see student debt like a gambling addiction. "Skin in the game" means nothing to me.
If the person is a fully actualized person by the time they graduate high school, then they will naturally want to be independent. "Giving" someone a discounted education is called grace and even then law degrees are overpriced and overpromised for results. This has been a continuing trend with colleges.
Society is already waking up to the college lie, parents are having children focus on STEM degrees.
But this is also a problem with Human Resources. No nontransferable skills, you must have the exact degree. Overqualified for an entry level job, blah blah.
The whole system is rigged.
Maybe it's time we stopped worrying about the students and looked at the employers and saying. "Hey the kids' got a law degree, might be worth hiring her for something above lettuce chopper."
The system is borked. Period. Defending it in its totality is confusion. There are fewer business being created by young people as compared to other depressions and recessions. That's because of the debt problem.
I agree that the educational system needs some work, and so do most of the progressive lawmakers I have heard talk on the issue. That’s what student loan reform is about.
What this fails to show is how the problem with education impacts the justice system. We have masses of recently graduated professionals who are out of work, but nevertheless meet the standards of the profession, and the problem is with the quality of the representation of criminal defendants? There’s plenty of a “free market for young attorneys to prove themselves”. They can apply for a job at the public defender’s office, apply for part-time work, or volunteer. And there are more of them willing to do so precisely because of the availability of federally backed education.
The issue with the legal field, is mostly that there's a cap on lawyers to limit the amount of lawyers so it does not bring down the average wage of a lawyer. If you saturate a market, wages go down. So there is protection being had at by holding back young lawyers with a paddle rather than freeing them to persue their trade.
There is no cap on the number of lawyers. Care to explain?
There are private law schools all over, federal student aid, and unless it's different in some states, anyone with a law degree can sit for a state bar exam. Meanwhile, not even in the worse off states like California has the Bar Examining Committee artificially adjusted standards to limit entry into the field. Examinees continue to succeed or fail on the test based on their unadjusted performance.
If seven minutes of time to prepare my case is the highest standard in the developed world, what the hell does every other country do for their citizens? Public defenders are laughably overworked and underfunded.
As I understand it, they're generally not taking each other to court over basically trivial things, at least not to the extent that it happens in America.
The lawsuit epidemic is a civil court issue, not a criminal court one.
If seven minutes of time to prepare my case is the highest standard in the developed world, what the hell does every other country do for their citizens? Public defenders are laughably overworked and underfunded.
As I understand it, they're generally not taking each other to court over basically trivial things, at least not to the extent that it happens in America.
The lawsuit epidemic is a civil court issue, not a criminal court one.
Not just talking about lawsuits
Perhaps I am not understanding exactly what you mean by "they" and "trivial things"?
"They" being people (including the people that are part of the government machine) in other countries, and "trivial" including such things as misdemeanors.
[quote][quote from="Magicman657 »" url="http://www.mtgsalvation.com/forums/community-forums/debate/753856-u-s-legal-system-how-is-this-just?comment=20"]
There is no cap on the number of lawyers. Care to explain?
There are private law schools all over, federal student aid, and unless it's different in some states, anyone with a law degree can sit for a state bar exam. Meanwhile, not even in the worse off states like California has the Bar Examining Committee artificially adjusted standards to limit entry into the field. Examinees continue to succeed or fail on the test based on their unadjusted performance.
Isn't part of the problem (probably why DA's are overworked) also the fact that in the US the payments for damages have completely lost contact with reality? Look at this new item about a Fox anchorwoman. To cut a long story short, the women claims to be sexually harassed (verbal only as far as I understood from a radio broadcast yesterday), and now the company settles to pay $20.000.000 in damages. $20.000.000! Of course this woman deserves a good compensation if she loses her job over sexual harassment but $20.000.000? That means she and everyone in her line up to her grand-grandchilderen never have to work a day in their life again. Even if the entire executive staff had their way with her this would be overdoing it.
These kind of numbers combined with the no-cure-no-pay system (which is forbidden here in the Netherlands by the way) makes finding a way to sue someone the easiest way to make big money in the US. Especially for the common people who have to make ends meet with $10/hour or so.
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Isn't part of the problem (probably why DA's are overworked) also the fact that in the US the payments for damages have completely lost contact with reality? Look at this new item about a Fox anchorwoman.
Again this is in the civil court. District Attorneys and Public Defneders are only involved in the Criminal system. The only effect lawsuits like the one you linked to will have on the situation in the criminal system is to tempt people into those large law firms that are more likely to represent private companies like Fox etc and away from the pool of people willing to be District Attorneys and Public Defenders.
The problem in the US and beyond is that whilst there might be a large pool of people willing to become public defenders, the relevant authorities aren't giving them enough funding, so they can't hire sufficient numbers of them. And even if they are 'adequately' funded the wages for public defenders aren't that attractive compared to what you could be earning in the private sector.
Couple that with large numbers of people living at or below the poverty line being arrested and charged in certain areas then what few Public defenders there are being swamped by the sheer numbers of cases that they are presented with. Which then leads to the situation described above where Public defenders barely have enough time to read a summary of the case and say hellow to their client before they are dragged onto the next case. Yet they are still expected to be able to defend their clients rigorously and zealously.
@ Lithl: Are you referring to a greater use of on the spot fines and similar where the cases are dealt with immeadiatly with out the need of a day in court?
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Every normal man must be tempted, at times, to spit on his hands, hoist the black flag and start slitting throats.
- H.L Mencken
I Became insane with long Intervals of horrible Sanity
All Religion, my friend is simply evolved out of fraud, fear, greed, imagination and poetry.
- Edgar Allan Poe
Perhaps I am not understanding exactly what you mean by "they" and "trivial things"?
"They" being people (including the people that are part of the government machine) in other countries, and "trivial" including such things as misdemeanors.
This reads like you think misdemeanors shouldn't go to court and should be resolved by 1. not charging the crime at all or 2. charging the crime and bypassing the court system w/ the punishment.
I think you mean, "the US should ease up on sentencing for petty crimes" but I can't be for sure.
In Making a Murderer, Avery's attorney explains that if the state wants someone convicted, they up the stakes by increasing the number of charges. So someone is facing let's say 5 charges, each with jailtime, and then you can plea bargain confessing to two, because at that point the chance to get fully acquitted is low. Either way, the state gets it's way: the suspect is going to prison. So it seems the system is designed to favor the state and the whole litigation proces, at least from the states perspective, prioritizes getting a conviction over determining guilt .
Without this being about Avery specifically, how can this be considered fair? Shouldn't the main purpose of a trial be that you determine if someone is guilty or not. If yes, then determining the proper punishment is step two. If not, you let them go and look further for the person that is guilty. Also, I can't see how plea bargains should have a place in this process at all.
The US has this system for a long time now so I'm probably missing something, but can someone explain to me why the way it works is considered just and fair?
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In the 80s and 90s, a lot of would be rapists ended up getting released because the charge was rape, but the state definition of what took place was sexual assault, so the jurors by legal definition had to find the perpetrator to be innocent (there was also a much different attitude of rape victims back then, but that goes beyond the scope of the question).
The short answer to your question though is that often times, Prosecutors want to make sure they have their bases covered. Many cases that have multiple charges are usually of the same crime, but simply trying to account for what they can prove. Have manslaughter ready if murder can't be proved, or sexual assault ready if rape cannot be proved.
The GJ way path to no lynching:
I can see how that works for crimes that are basically just legal degrees of severity for the same thing. But let's take murder for example. I think the primary question should be: given all the circumstances, is the suspect guilty/responsible for the death of person X? If the answer is no, then the suspect is free to go. If the answer is yes, only then do you come to determine the severity of it (first degree, second degree, manslaughter etc from which also follows a proper punishment.
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What usually happens instead is that each crime has a recommended minimum and maximum sentence. The punishment doled out is for the most part, at the discretion of the judge, that can be influenced by testimony both by the defendant.
But the question is more important than anything. Let's take your example of murder and make it more specific. Neither party is denying person A killed person B, but person A is claiming it was self defense. How do you charge person A? It could still have be 1st degree, but it also could have been man slaughter, or not murder at all. What you are suggesting would be basically a 2nd trial to determine intent, which then determines the severity.
The point with thievery is a little weirder since unlike murder, intent doesn't separate the degrees of thievery, but usually the amount taken. Different states have different thresholds, but if you steal say less than $300, it is considered petty theft. Anything above that amount would be considered Grand Larceny, or a vehicle would be considered Grand Theft Auto. The multiple charges increase with the severity of the theft: Did you rob a person with the use of a weapon? Did you steal from a house with no one in it (so no potential physical harm)? Did you hold someone against their will? A person who tied up a hostage, and held them at gun point while stealing jewelry will not get as much leniency as someone who took a video game from a store and ran.
The GJ way path to no lynching:
Aren't you assuming guilt here? I mean if the person is actually innocent then they presumably could dispute the charges and walk. Not that the court works perfectly every time, but if there isn't evidence that you committed a crime it isn't like they can just make up a bunch of charges and assume one will stick.
I see what you are saying, but I don't agree with the OP that the "upping the charges" is the real problem in the system here. There are tons of issues in the system, that just seems like an odd one to harp on IMO, one that wouldn't be an issue at all if the other larger underlying things you are describing were taken care of.
Yeah, it's not so clear cut with every case I understand that. But you could separate the trial process by first determining the facts of what happened, where both sides argue their position as to why they ware doing what they did etc. And then a second part where, once the relevant facts are determined and the intent with which they happened are clear, you try to translate this into one or more actual crimes (if any) and determine the punishment. Of course, if there is not enough evidence to determine exactly what happened beyond a reasonable doubt, then you never get to the point of what crimes exactly are comitted. But this way does seem to put the state and the defendant on more equal footing. It's probably not perfect either, but seems more fair to me?
This is exactly what happened with Steve Avery. If you haven't watched the Netflix documentary "Making a Murderer" I recommend you do. The fact that it is a true story bring more fear to me than any horror movie ever could.
I tried googling the part of where Dean Strang explains the problem I refer to in the OP to give you a link, but could not find it. So you'll either have to take my word for it or apply some Google-fu of your own
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There is a legal concept called the “merger doctrine”, and “lesser included offenses”. A lesser charge is one where every element is also an element of the greater charge. You can charge murder and convict manslaughter, but you can’t charge manslaughter and convict murder. So, the prosecution is always incentivized to bring the highest charge that they believe, under their duty as an officer of the court, that the facts warrant. The jury will always be instructed that they can convict on any lesser charge, unless that charge includes some element that the more serious crime didn’t.
So, the charge at court will always be ratcheted up to what they think someone actually did. And prosecution does have to list this out to the defense attorney before the hearing. So if they tempt the defendant with a plea deal for a lesser charge, and someone thinks having a greater charge anywhere on the table is unfair, that is just perception. Prosecution threatening with a murder charge means that they think murder was committed. Practically speaking, the most prevalent motivation for prosecution to offer deals is because they are overworked. Thinking they are just frivolously upping the stakes to browbeat people has it backwards.
I mean, I thought that even grade school teachers by now were teaching that "innocent until proven guilty" means it's really hard for the state to bring charges. In any event, here is a quick list of protections against prosecutorial abuse. I’ve tried to sort them from most direct to least:
1) Standing Trial for the Charge – If you think you are innocent and you’re being prosecuted anyway, what would be the weight behind the prosecution upping the charges? What evidence do they have, and how did they get it if you’re innocent? Answering those questions will make it really easy for a defense attorney to defend you. And for all criminal charges in the US, the state has to provide a defense attorney at their expense unless you choose your own.
2) Contesting How You Got Caught – If you really didn’t do it, how did you end up in police custody? There are multiple ways that cops can go wrong in catching you, and as I am reminded recently, cops have less training than cosmetologists. There are a number of highly likely things that they did in apprehending an innocent person. Even if they came to your house and busted through the door, they need a warrant for that. Even at that point, it has to come from a judge, and judges have to abide by certain standards of evidence in granting a warrant for seizure.
3) Grand Jury (felony cases) – If you are charged with a really serious crime (felony) in some states, there will be assembled a Grand Jury on the question of whether to indict you for it. There is basically complete secrecy in these meetings, and no oversight whatsoever. The prosecution has to provide evidence to convince them. But if people sympathetic to you are impaneled in a grand jury, they can prevent the prosecution from indicting and no one will ever know about it. If they are not sympathetic to you after they see the evidence, why aren’t they? Either they didn’t watch Law and Order, or they don’t believe these scenarios are as common as TV presents, or there’s just too much evidence.
4) Adversarial Hearing on Indictment – Even in cases without a Grand Jury, the defense attorney’s professional obligation to serve his/her client begins before the hearing, and the prosecution has to share evidence. If your attorney isn’t compelled by the evidence, what is the basis for the prosecution to threaten to up the charges?
5) Judgment Notwithstanding the Verdict – Ok, you’re innocent, you went to trial on bad evidence, and the jury convicted you. Your attorney will make a motion to the judge for JNOV. Now, the judge has to personally okay it.
6) Automatic first Appeal as of Right – If your attorney, the jury and the judge all let you down, you can appeal any criminal conviction without the burden of stating any grounds for it. So now, two different judges have to okay your conviction.
7) Appealing the conviction on Civil Rights grounds – If you somehow got convicted on a really crappy case, both your attorneys were on auto-pilot, and the judge was against you, why would that be? If it’s because of something about you like race, religion, national origin, etc, then you have grounds for appeal that don’t have anything whatsoever to do with any evidence for the actual charge. If you have evidence of prosecutorial malice, or even statistics in your area showing the likelihood of prosecutorial abuse (incarceration rates, etc), then an appellate court can overturn your conviction.
8) Appealing on the grounds of ineffective counsel – Ok, somehow your attorney didn’t mention that there are countless of these mechanisms of the state in the way of you getting convicted, and he misinformed you that you were screwed even if innocent. Your next attorney will tell you how wrong he was, and you get out of jail free just because your lawyer was bad.
9) Electing a different government – District attorneys are elected in a lot of jurisdictions, and appointed by the executive in others. Judges are the same. Also, the state legislature will usually include in the criminal code what the minimum and maximum penalties are for a charge. If the best and brightest in the society are codifying criminal charges with way, way more penalties than they should have, such that the prosecution is always armed with the threat of bringing a stiffer penalty, why is that? Are you sure it’s just because they all don’t like you?
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If young lawyers were able to graduate with no to little debt, we would see more private practices open up. Young lawyers doing the DUI's and speeding tickets, then moving up to be prosecutors and defense attorneys in large cases. That is the system, but I would fathom that as lawyers would go up and down the pike. For instance a lawyer who was raising 2 children would perhaps not want to work for a high end law firm and just do some small cases to bring in money and maintain work experience until their children were older. On and off ramps for careers, and not encumbering people with debt.
It's mostly the pipeline into the work environment that is the problem for young people, as well as the off ramps for people with children to come back to the work force. Fix those aspects of the working world, and you open a world of difference.
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I understand what your saying and I think that's an issue too, but that in and of itself does not explain why a system that seems geared for getting convictions through plea bargains is just?
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I get charged with a crime, if I can afford a lawyer and fight the charge it forces an economic decision. If a DA knows that a person is able to get "good defense" they will be more likely to go through the case through an investigation rather than charge shenanigans.
There is another thing we're not talking about. Voting versus appointed DA's. Nifong from the Duke Lacrosse rape scandal was elected. Prosecution out of the "get tough on crime" approach from the 1970's and 80's was the crack epidemic. So conservatives latched onto the idea of get tough on crime, which they wanted more quantifiable aspects. Conviction rates were a part of this for getting tough on crime and sending people to jail as a way to remove evil from society.
As we know today, high incarceration rates mean little if recitivism rates are high. Then there is the issue of mercy bookings and the mentally ill. The prison system is the largest mental health provider in the nation. Nifong himself is the poster child of why you don't want elected DA's, because he needed to look good in front of the electorate.
So we are dealing with 3 separate issues:
1. Elections of judges and DA's basing their success rate on convictions
2. Expensive lawyers
3. Inability for society to deal with the mentally ill
From there we do the legitimate people who do belong in jail at least for a time and then transitioning those people back into society. We do have some statistics, such as men over the age of 27 are less likely to go back and engage in violent crimes. There are some areas of data we can deal with and readily work with.
You need to take each issue one at a time.
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All I know (or think i know) is that privatizing prisons like they do in the US is just wrong on so many levels. Morally, because prisones for profit is borderline slavery. Socially, because proper rehabilitation costs money so privatized prisons will cut that short or entirely. Politically, because the responsibility for the inmates has been shifted to the corporations so politicians feel exonerated for the fate of these people.
US army doctrine says tht if you conquer it you own it, and it's yours to look after. The same holds true for inmates: society felt they had to be locked up, then it's up to society to look after these people properly.
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To begin with, this seems entirely bass-ackwards. We are hurting for qualified attorneys, so let’s reduce the costs spent on law degrees? We need incentives for attorneys to open private criminal defense practices instead of having kids, so let’s reduce the debt for each graduating attorney? Passing the bar is a problem? If someone has to take on debt, attend a school with highly compensated professors, and pass a bar exam, wouldn’t that serve to incentivize them make good on their investment and practice law, rather than de-incentivize them to do so? Wouldn’t that ensure better quality representation for the accused in the justice system?
Maybe if people were just deciding against becoming lawyers for these factors we would have a problem, but just to be clear on the facts, there is no shortage of attorneys whatsoever. There are so many that the legal community is currently wondering whether the back log of all the recently graduated attorneys will ever be worked into the profession. Lots of out of work attorneys would love Criminal Defense work, or even to stand by and assist with Criminal Defense work on a volunteer basis, but other attorneys are out-competing them for it. And even pre-2008 recession days, it was a minority of those working as attorneys who ever actually had to take a case to court.
Also on top of there being so many attorneys in the US, the US has what are possibly the highest minimum standards for attorneys in the world, as measured by years of education, worldwide educational rankings, the number of law school applicants as a ratio to admissions rates, and the ratio of those who take the state bar exams against those who pass. If you need further evidence, look at the trade surplus of services exports delivered by US legal professionals to other countries. The world values US legal professionals more than the US values theirs. So, it’s hard to argue that these factors weigh against the effectiveness of the legal professionals in the US justice system, relative to the rest of the developed world.
So in summary, if you are arguing that the reason prosecutors favor plea deals is because defense attorneys are terrible, what you are talking about is, at worst, the bare minimum standards to be licensed in the profession (public defender’s office) in an adversarial negotiation with what probably amounts to a slightly below average line of work in terms of compensation and prestige (DA’s office). An abundance of lawyers and very high minimum standards in the US both weigh heavily against the argument that Public Defenders are just getting their rears handed to them in these negotiations. And that’s only if you buy the idea that public defenders are the dregs of the profession, where from what I’ve seen it’s a little the opposite, that trust-fund darlings are the ones to be overly enamored with Criminal Defense work and Constitutional Law, and have the least concern with low compensation.
1. When have you ever come across campaign ads for a Judge, or even a DA? The average cable news watching voter doesn't care at all about these offices, or even understand what they do. The only factor I see that could possibly weigh in here is whether they’re putting either a (D) or an (R) next to their name on the ballot, or leaving it off. With party affiliation, it only shifts the power of appointment from the executive (as it would be where the office it not elected) to the partisan machinery of the primary process. Without party affiliation, the vote is essentially blind.
2. As above, huh??? The US justice system compels the State to appoint a Public Defender for all criminal charges. And any economic factors that might be driving up the costs for legal services would only serve to raise the minimum standards for the profession, which are already the highest in the developed world.
3. I’ll grant that there is some intersection between the public health system and the justice system, but what’s the alternative? Besides, most people believe the opposite, that standards for “insanity defenses” are still too low.
I realize this isn't always the case, but if you have someone you know is guilty of something and they get off due to circumstantial evidence or a warrant signed in the wrong place, don't you want to be able to dole out some degree of justice?
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We are gradually getting that way over here with lots of no win no fee companies cropping up. But other than diluting the pool of people able to become Public Defenders that won't have any issue on the situation at hand. Where there is not enough spent on the relevant offices so even if there were lawyers willing to become public defenders there is not the budget for them, despite the growing demand.
- H.L Mencken
I Became insane with long Intervals of horrible Sanity
All Religion, my friend is simply evolved out of fraud, fear, greed, imagination and poetry.
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Bwahahahaha, because public defenders suck at the state level. They used to be good at the federal level, until cut back started.
Debt is evil. It binds you, it's not an "incentive." It's more like, "I'm going to smack your butt with a paddle if you don't clean the dishes." Whereas more lawyers are motivated by "I got to help someone out!" or "This case is extremely complex, and I can use my analytical ability to think through all this paper work." Don't confuse disincentives with incentives. IF a person wasn't going to enter a field, they would have done so.
There's a demand for lawyers to fight local cases, and there's a demand for public defenders. What you seem to neglect is that I want more of a free market for young lawyers to prove themselves without having to be burdened by unnecessary debt.
70k'year in Canada is pretty good living.
You know what? Who I am to judge how much debt someone should have for an education? What really makes me feel special to say what people should pay for college.
Here's the thing. Lawyers are necessary to transmute legalistic garbage into practical results. Period.
Doctors being heavily encumbered by debt, makes then incentivized towards making money. Then we get more boob and ****** repair specialists than GP's.
Chasing money and raising the price of an attorney pr doctor fee per hour is ludicrous.
So we tried high debt with high education, created an education bubble. Let's go back to what works, capitalism without all the socialism. Low debt margins increases individual wealth, which then opens up people to spend more money to create other jobs.
We're using a "Sith mentality" for a "Jedi problem." Which means "greed" isn't the largest motivating factor here.
Debt is the problem, it creates fear and panic. The good side of self interest, that is the acquisitive towards resources to protect oneself against, well, poverty is natural to man.
Instead I see student debt like a gambling addiction. "Skin in the game" means nothing to me.
If the person is a fully actualized person by the time they graduate high school, then they will naturally want to be independent. "Giving" someone a discounted education is called grace and even then law degrees are overpriced and overpromised for results. This has been a continuing trend with colleges.
Society is already waking up to the college lie, parents are having children focus on STEM degrees.
But this is also a problem with Human Resources. No nontransferable skills, you must have the exact degree. Overqualified for an entry level job, blah blah.
The whole system is rigged.
Maybe it's time we stopped worrying about the students and looked at the employers and saying. "Hey the kids' got a law degree, might be worth hiring her for something above lettuce chopper."
The system is borked. Period. Defending it in its totality is confusion. There are fewer business being created by young people as compared to other depressions and recessions. That's because of the debt problem.
The issue with the legal field, is mostly that there's a cap on lawyers to limit the amount of lawyers so it does not bring down the average wage of a lawyer. If you saturate a market, wages go down. So there is protection being had at by holding back young lawyers with a paddle rather than freeing them to persue their trade.
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First off, I would resist boiling issues down so far that they can become Twitter hashtags and made-to-order statistics. The NY Times writes an editorial on a report of a report, and now the message is whatever people want it to be.
If you read the report from the National Association of Criminal Defense lawyers, it actually only has the New Orleans public defenders office at 7 minutes per case, and only for “part-time” attorneys. It has every other public defenders office at about an hour per case. If the outlier is held out as the chief finding, that’s a tilted agenda.
More missing details, the report was specifically about conditions in misdemeanor courts from 2008 projected into the future, and we are using that here to explain why “Making a Murderer Happened”, which documents a 1985 felony charge in Wisconsin.
Besides, X number of minutes may be enough, maybe not. I have gotten a lot of things done in seven minutes. It takes a successful examinee on the Multistate Bar Exam (MBE) an average of 1 min 45s to answer a question that is intended to represent a challenge. And attorneys probably type and send e-mails at between 20 and 40 words per minute. It depends on details like administrative support that vary widely between jurisdictions, and are too nuanced to delve into in a way that would be digestible on the national debate stage.
Don’t get me wrong, I’m not saying that there isn’t a problem with Public Defenders being overworked. What I am saying is that minimum standards do exist for both systemic oversight and individual attorney ethics, they are higher than the rest of the developed world, and a much more nuanced look than what a Netflix documentary provides is really needed to draw any conclusions. The report in the NY Times OpEd even states that the increasing caseloads pose a risk to the attorneys being disciplined for ethical issues. So the system seems to be holding itself accountable to defendants.
That’s saying that I’m so broke I can’t afford to work. Huh…?
I mean, I’m all for reducing the cost of law school as long as it doesn’t interfere with the world-renowned quality of that education (and good luck there). But to be clear, the alternative in a profession suffering from underemployment is underemployment. It’s not just to take better compensating work in some other area of law. Given the alternative between making $20/hr as a Public Defender and making $15/hr doing unqualified administrative work, what do you think an attorney will choose? If it’s underemployment, it’s because some other grad out-competed the rest for the job with the Public Defender.
Also on the Federal Student Loans system generally, the amount due on payments caps out at 15% of a grad’s disposable income (10% for new grads under the Obama plan). Even if someone were at this crossroads between making 40k/yr as a public defender and 100k/yr as a real estate attorney, that decision is about whether to drive a new Mercedes or a used Kia, not whether you can “make ends meet”.
To redirect here, it’s not just about voter apathy. It’s apathy on the issues of relevance to the office of DA or judge, and ear-splitting passion on partisan storylines, like gender-neutral bathrooms, which have no relevance to the justice system. So for those of us, like myself, who have listened to a DA candidate campaign, it is more about virtue-signaling and pretending you are getting softball questions from a cable news anchor than it is about the administrative oversight of the justice system. About the most hot-button issues they will talk on relative to criminal justice is the legalization/decriminalization of marijuana and/or immigration issues, which are still outside the purview of an office that is supposed to be enforcing policy rather than enacting it.
I have heard no DA ever claim that they're the best for the job by getting higher conviction rates. At least in all the states where I've lived, I'd be very surprised to hear a campaign platform anything like that. But neither have I heard anything like a candidate claim that they are an administrative expert, reduced inefficiency by X% at a hospital or some such, and that they have a plan for reducing case loads. The local elections process does happen, but this seems like a non-issue to both sides.
I disagree. Do you have any evidence that they suck, other than just the fact that they aren’t paid as much as hedge fund managers?
I agree that the educational system needs some work, and so do most of the progressive lawmakers I have heard talk on the issue. That’s what student loan reform is about.
What this fails to show is how the problem with education impacts the justice system. We have masses of recently graduated professionals who are out of work, but nevertheless meet the standards of the profession, and the problem is with the quality of the representation of criminal defendants? There’s plenty of a “free market for young attorneys to prove themselves”. They can apply for a job at the public defender’s office, apply for part-time work, or volunteer. And there are more of them willing to do so precisely because of the availability of federally backed education.
There is no cap on the number of lawyers. Care to explain?
There are private law schools all over, federal student aid, and unless it's different in some states, anyone with a law degree can sit for a state bar exam. Meanwhile, not even in the worse off states like California has the Bar Examining Committee artificially adjusted standards to limit entry into the field. Examinees continue to succeed or fail on the test based on their unadjusted performance.
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https://www.c-span.org/video/?314655-1/public-defenders-program-budget-cuts
I like CSPAN.
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These kind of numbers combined with the no-cure-no-pay system (which is forbidden here in the Netherlands by the way) makes finding a way to sue someone the easiest way to make big money in the US. Especially for the common people who have to make ends meet with $10/hour or so.
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Again this is in the civil court. District Attorneys and Public Defneders are only involved in the Criminal system. The only effect lawsuits like the one you linked to will have on the situation in the criminal system is to tempt people into those large law firms that are more likely to represent private companies like Fox etc and away from the pool of people willing to be District Attorneys and Public Defenders.
The problem in the US and beyond is that whilst there might be a large pool of people willing to become public defenders, the relevant authorities aren't giving them enough funding, so they can't hire sufficient numbers of them. And even if they are 'adequately' funded the wages for public defenders aren't that attractive compared to what you could be earning in the private sector.
Couple that with large numbers of people living at or below the poverty line being arrested and charged in certain areas then what few Public defenders there are being swamped by the sheer numbers of cases that they are presented with. Which then leads to the situation described above where Public defenders barely have enough time to read a summary of the case and say hellow to their client before they are dragged onto the next case. Yet they are still expected to be able to defend their clients rigorously and zealously.
@ Lithl: Are you referring to a greater use of on the spot fines and similar where the cases are dealt with immeadiatly with out the need of a day in court?
- H.L Mencken
I Became insane with long Intervals of horrible Sanity
All Religion, my friend is simply evolved out of fraud, fear, greed, imagination and poetry.
- Edgar Allan Poe
The Crafters' Rules Guru
This reads like you think misdemeanors shouldn't go to court and should be resolved by 1. not charging the crime at all or 2. charging the crime and bypassing the court system w/ the punishment.
I think you mean, "the US should ease up on sentencing for petty crimes" but I can't be for sure.