THE MACHINERY OF CRIMINAL JUSTICE: The Gulf Between Insiders and Outsiders, and Its Costs.
UPDATE: Insider John Steakley responds:
“By insiders, I mean the lawyers and other professionals who run the machinery of criminal justice: the prosecutors, police, probation officers, judges, and even defense counsel.”
We “run the machinery?” I am yet to have a single legislator ask me what I think about yet-another-previously-legal act they want to criminalize. I am yet to have one ask me for an opinion before voting to double a mandatory minimum sentence even while prison population is 105% of capacity. At 16 percent, Georgia is only slightly above the national average of 15 percent of state legislators with law degrees. The “insiders” accused of “running the machinery” aren’t the ones making the laws and passing the budgets.
” Back when jury trials were common, insiders were primarily adversaries, but now both sides’ lawyers collaborate in plea bargaining; cynics might even call it collusion.”
Collusion? Why would I collude with a prosecutor? In most cases, I get paid more if the case goes to trial. But I can’t act on my best interest. I act on my client’s best interest. If he’s facing life on an Armed Robbery and the plea offer is 10 years on Robbery (because the prosecutor has ten speedy trial demands and the resources to honor only two), I can already tell you which option my client will take. How is that collusion? That’s adversarial. That’s “punch until something breaks.”
“Outsiders lack the knowledge and leverage to effectively oversee how insiders do their jobs.”
That doesn’t stop them from trying. But they elect non-lawyers to try to oversee lawyers and it doesn’t work. Here’s a suggestion: Let’s pass a law banning the plea bargain! I’m serious. Pleeeease. I know a Lexus that would look good in my new driveway in one of my new homes, paid for with all those jury trials I will do.
Leverage? Outsiders set the budgets. They can defund the entire system any day they want. They can double the system resources whenever they are ready to write the check. But they don’t want that.
“Insiders tend to mellow over time, and their practical concerns about huge dockets and fear of losing trials (risk aversion) make them especially pliable in plea bargaining.”
Fear of losing trials? What’s to fear? I don’t go to prison if I lose. The prosecutor doesn’t get fired if I win. I likely make more money for having tried the case. What’s the downside I am supposed to fear? My client, however, will be very thoroughly advised of his risks. That’s my responsibility. The decision whether we have a trial is his, not mine nor the prosecutor’s. We can’t make him plea. At the end of the day, it’s the client who decides whether to have a trial, not the lawyers.
“Back when jury trials were common, citizens could oversee prosecutors and intervene carefully at the retail level as jurors. And when counties were smaller and criminal justice was more local, they had a better sense of local crime problems and priorities and so were better able to keep the police in check, neither too tough nor too aloof.”
Let’s do some math: Gwinnett County, Georgia, indicted about 6,000 felony cases last year, more than almost any county in Georgia. To handle that workload, the “outsiders” have provided the “insiders” with a whopping 10 Superior Court Judges. So we have 600 felony cases indicted per judge. To be conservative, let’s call it 500. A judge can try maybe one case per week on average if he puts all his other work (divorces, car wrecks, workers comp, estates, etc) aside. That’s about 50 cases per year. At the end of the year, he has 450 cases left over, a new batch of 500 on his docket, and a huge backlog of civil work. Now what?
And 10 judges and 50 cases each mean 500 jury panels yearly. At 50 outsiders per panel, that’s 25,000 outsiders who are NOT working for a week.
Oh, if only the outsiders could “oversee and intervene” the system would be better? Go watch jury selection sometime. The LAST PLACE ON EARTH these outsiders want to be for a week is in a courtroom “overseeing and intervening.” When outsiders are invited to spend a week seeing their system in action, they run like scalded dogs for the exit.
We have the system we are willing to have. We don’t want to spend money on more lawyers and prisons. We don’t want to admit we have over-criminalized our society. We want to pass outrageous rules that we think will cut crime, but only burdens the system. The people passing the rules have never set foot in the system, so they don’t realize the burden.
We want a system that works for free or very cheaply, where enforcing yet another new law has no measurable additional cost. We want the “good guys” to win but can’t always agree on who is “good.” We want cases resolved weeks after arrest in a 45-minute jury trial. We want Law & Order.
I want the Michael Moriarty version.