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September 30, 2022

"The Lost Right to Jury Trial in 'All' Criminal Prosecutions"

The title of this post is the title of this recent article available via SSRN authored by Andrea L. Roth. Here is its abstract:

The Sixth Amendment states that “in all criminal prosecutions, the accused shall enjoy the right to . . . trial, by an impartial jury.”  Similarly, Article III mandates that the trial of “all crimes, other than impeachment, shall be by jury.” Nonetheless, tens of thousands of federal defendants each year are denied a jury in “petty” cases with a potential sentence of six months or less.  These cases can carry significant consequences and involve not only regulatory crimes but traditional crimes like theft, assault, and sexual abuse.  This apparently blatant contradiction of the Constitution’s text is justified by the so-called “petty-offense exception,” originating in nineteenth-century Supreme Court dictum that cited to the Founding-era practice of allowing certain offenses deemed “petty” by Parliament or colonial charters to be summarily tried by a justice of the peace.

While a couple of commentators over the last century have criticized this doctrine, it has never been fully litigated. Harnessing previously unexplored historical and textual sources, this Article offers the most comprehensive argument to date that the petty offense exception’s existing rationales are untenable.  Indeed, as the sources reveal, controversial summary bench trials could just as naturally be read as inspiration for the Framers’ conspicuous decision to guarantee a jury in “all” criminal prosecutions.  Ultimately, if one looks to text and history to interpret the jury right, it must at the very least extend to defendants formally charged by the Department of Justice in federal criminal court.  The Article concludes by exploring the implications of a jury right in federal petty cases, including the importance of the right, and implications for state defendants and the Sixth Amendment right to counsel.

September 30, 2022 at 09:36 AM | Permalink

Comments

The one threat that prosecutors can legally make to induce a defendant to plead guilty that most offends me is the threat to indict his family members unless he agrees to plead guilty. Several Circuit Courts (but not the U.S. Supreme Court) have held that it is legal and Constitutional for a prosecutor to threaten to indict the defendant's family members unless he agrees to plead guilty. See, United States v. Marquez, 909 F.2d 738 (2d Cir. 1990)(citing cases from 4 or 5 other Circuits, including the 4th Circuit). My former client, Roger Damron, who was prosecuted in the Southern District of West Virginia circa 1996-1997, testified at my trial that he had pleaded guilty because U.S. Attorney Rebecca Betts had come to the jail and threatened to indict his wife for conspiracy to commit money laundering unless he pleaded guilty. At the time, Damron was meeting with prosecutor Betts without defense counsel present. When Betts had called defense counsel to ask him to meet her at the jail, so she could speak with Damron, he told her that he had a conflicting gold tee time, but it was okay if she went and met with Damron alone. Damron testified later that his wife was a brittle diabetic in her 60s, and he feared that she would die if Ms. Betts sent her to prison, so he caved and pleaded guilty. Betts threatened Damron because she feared she would lose her upcoming trial against Damron, since 50 of the 52 investors who claimed to have lost money to Damron had recently recent bank drafts from an offshore bank, returning their "lost" investments. Evidence later showed that the con-man, Stephan Oles, who Damron had invested their money with feared that he was about to be indicted, so he committed an entirely separate fraud to get money to return to Damron's investors. It was Stephen Oles (not Roger Damron, who was then being held in jail) who directed the offshore attorneys to cut the bank drafts and send them to the U.S. investors. In the face of having 50 of 52 investors have their monies returned a few weeks before Damron's trial was scheduled to begin in Huntington, West Virginia, U.S. Attorney Betts went to the jail, without counsel present, and threatened to indict Damron's wife unless he pleaded guilty. Damron later testified that he pleaded guilty to save his wife's life. And I do not think the law and Constitution should permit things like this to happen. It's wrong.

Posted by: Jim Gormley | Sep 30, 2022 10:32:18 AM

See also, dicta from "Bordenkircher v. Hayes, 434 U.S. 357, 364 n.8 (1978) (A Court need not consider any benefit to or adverse action that might be taken by the prosecutors towards another person, besides the accused).

Posted by: Jim Gormley | Sep 30, 2022 12:35:08 PM

I wholeheartedly agree.
I have seen this happen to two defendants that were part of the same conspiracy charge (the top two targets). The threat was first made to get them to stand down at their detention hearing, then ultimately the reason both decided to plead guilty... If not for this threat, one defendant plainly stated he would have proceeded much differently…

Posted by: Shanta | Sep 30, 2022 1:21:23 PM

Let's do a one year experiment and thereafter evaluate the results. Since prosecutors are accused of abusing the plea process to extort bargained-for pleas, during this one year, we'll take the extortion tool away from them and provide that there will be no plea bargaining, and hence no bargain-related threats. Every defendant will fully get his constitutional right to a jury trial on the original charges.

At the end of the year, we'll ask prosecutors, judges, defense lawyers, defendants and crime victims whether they like that system, or whether they'd prefer the one we have now.

I have a pretty good idea what the answer will be, especially from defendants, defense lawyers and judges, but we won't know for sure until we try the experiment.

Posted by: Bill Otis | Oct 1, 2022 11:42:22 AM

Bill Otis: What do you think of the legality of a prosecutor being able to say to a defendant, "If you don't plead guilty, I am going to indict your wife?" Should that remain legal, as it appears to be now? I am not talking about the entire guilty plea process, just this one sub-issue.

Posted by: Jim Gormley | Oct 1, 2022 1:08:23 PM

Jim Gormley --

Depends on the evidence. If the prosecutor has an objectively reasonable, good faith belief that there is sufficient evidence to warrant an indictment of the wife and then result in a guilty verdict, there is absolutely nothing wrong with his telling he husband that he (the prosecutor) is willing to give him and his wife a break from the punishment her behavior has earned, but only if the husband pleads guilty to the charge his own behavior has earned.

If, on the other hand, the prosecutor does not have such a case against the wife, and the threat is based on flimsy or non-existent evidence against her, it should not be allowed. (But in such a case, the wife would get acquitted anyway, if the judge even let the case go to the jury).

Now I'd be interested to find out if you would support the experiment I proposed.

Posted by: Bill Otis | Oct 1, 2022 1:45:01 PM

Mr. Otis, I'm sure it would be a great consolation to everyone if the defendant and his brittle diabetic wife were exonerated at trial after they spend several months in jail and the wife dies of her illness.
The system worked!

Future generations will look back at coercive plea bargains -- and they're *all* coercive -- with the same horror with which we look back at slavery. The only way to determine guilt is with a fair trial, not with a claim of a good faith belief in guilt. As for your proposed experiment, how about an experiment where some muggers threaten to kill you if you don't hand over your wallet, and others simply kill you and take your wallet. If everyone prefers the former, that doesn't make either one acceptable.

Note that I'm suggesting *fair* trials, not the kinds of trials we have now, in which prosecutors have an enormous advantage, and can't be punished even if they suborn perjury or if they fake or hide evidence or rely on debunked forensic pseudoscience.

Posted by: Keith Lynch | Oct 1, 2022 3:21:19 PM

Keith Lynch --

"Mr. Otis, I'm sure it would be a great consolation to everyone if the defendant and his brittle diabetic wife were exonerated at trial after they spend several months in jail and the wife dies of her illness.
The system worked!"

I see you don't mention evidence -- a telling omission.

"Future generations will look back at coercive plea bargains -- and they're *all* coercive -- with the same horror with which we look back at slavery."

You have no clue what future generations will think. But if a point be made of it, slavery ended many generations ago, and there a far MORE plea bargains now than there were then.

P.S. Judges CANNOT accept coerced plea bargains, and they don't -- unless they're all crooks. Are they? Are the defense lawyers who seek them and sign them all crooks too?

"The only way to determine guilt is with a fair trial, not with a claim of a good faith belief in guilt."

Then go assert your right to a trial and quit whining. And while we're at it, how is it that you know what has for decades eluded the Supreme Court -- that trials are the only way to determine guilt?

"Note that I'm suggesting *fair* trials, not the kinds of trials we have now, in which prosecutors have an enormous advantage..."

That's true. They do have a big advantage. It's called "evidence," which is the reason you don't mention it.

"...and can't be punished even if they suborn perjury or if they fake or hide evidence or rely on debunked forensic pseudoscience."

Such as fingerprints, DNA and surveillance tapes.

Posted by: Bill Otis | Oct 1, 2022 5:09:35 PM

Keith Lynch --

Do you really not get it that the huge majority of defendants who plead guilty do so because they know the evidence is overwhelmingly against them and that they would lose if they went to trial?

Do you really not know that?

Posted by: Bill Otis | Oct 1, 2022 9:23:48 PM

Bill Otis: In the case involving my former client, Roger Damron, he had been under indictment for more than a year and was within a few weeks of going to trial, before the US Attorney met privately with him in jail (defense counsel was not present) and threatened to indict his wife unless he immediately pled guilty to all charges. The U.S. Attorney never suggested indictment of Damron's wife until AFTER 50 of the 52 investors received the return of their lost investments in the mail, via offshore bank draft. These bank drafts were arranged by the real con man in the case, Stephen Oles, who defrauded Mr. Damron out of the investors' money, thinking that it was Damron's personal funds. Oles had already testified under subpoena before the Grand Jury that indicted Roger Damron. Oles knew that he was next, and he arranged the return of monies to try to head off his own indictment. The Government later proved that Oles committed a whole nother fraud scheme, to get the $410,000 to repay 50 out of 52 of Damron's investors, just a few weeks before Damron's scheduled securities and wire fraud trial. The Government's theory was that Damron was the person causing the return of funds to investors, on the eve of his trial, but it was really Damron, as the Government later learned from their follow-up investigation. The Government filed a contempt motion against Damron, for allegedly violating the pre-trial restraining order on his assets (normally daily living expenses excluded). I testified under subpoena at the Contempt Hearing that based on my conversations with the offshore attorneys, the money to fund the bank drafts sent to West Virginia came from Stephen Oles money. Based on my testimony, the District Judge declined to find Mr. Damron in contempt of court, or to order the investors to pay their bank draft funds into the registry of the court. In the days after the Government lost the contempt hearing, Rebecca Betts, the U.S. Attorney for the Southern District of West Virginia met alone with Mr. Damron in jail (and without defense counsel present), and threatened to indict his wife unless he pleaded guilty to all 52 counts of his indictment. Damron later testified at the trial of 4 others that he had pleaded guilty to save his wife's life, because she was in her 60s and a brittle diabetic. At the time the 4 other defendants were tried in 1999, Stephen Oles was a fugitive, who had cut off his ankle monitor, and fled Southern California by boat to Mexico. Some years later, Oles was arrested in England and extradited to West Virginia, where he pleaded guilty and was sentenced to 10 years in prison. But for Betts' threat, Damron would have gone to trial, and probably would have been acquitted on 50 out of 52 counts of the indictment.

Posted by: Jim Gormley | Oct 2, 2022 2:44:34 PM

Jim Gormley --

Thank you for your detailed response. Nothing in it changes my view that it is proper for the prosecutor to threaten to indict the wife if the grand jury's evidence against her meets the same true bill standard applied to any other case. It is likewise proper for the prosecutor to offer (otherwise unearned) leniency for the wife if, after having properly and with adequate evidence of guilt indicted the husband, the husband agrees to plead guilty (almost always to some reduced set of charges).

If a person wants to avoid the unpleasant choices being indictred presents, his best option is to refrain ab initio from the behavior that gets him indicted. The idea that only the behavior of the prosecutor is to be examined, while the behavior of the defendant gets shoved behind the curtain as if it has nothing to do with the case, is, with all respect, silly.

Now let me ask again: Would you support the one year experiment I proposed with no plea bargaining allowed?

Posted by: Bill Otis | Oct 2, 2022 5:22:17 PM

I heartily endorse Bill’s solution. I will gladly pay more tax money to fund the prosecutors and judges needed to give a trial to each accused criminal. They can then serve out the full sentences for the crimes they commit, not a watered down version with less or no prison time. God knows that keeping these people in prison will make our communities safer. A beefed up judicial and prison system is a worthy investment.

If Douglas and his ilk here were honest, they would also endorse this deal. It gives them their stated goals. The prosecutors lose some power and give the attorneys a chance to defend their clients, even in cases they are sure to lose. The issue is the goals not stated, that they want the benefits of plea bargains without the risk of going to trial.

Posted by: TarlsQtr | Oct 2, 2022 11:59:29 PM

Mr. Otis: You're right for once. I indeed don't know that "the huge
majority of defendants who plead guilty do so because they know the
evidence is overwhelmingly against them and that they would lose if
they went to trial." You don't know that either. Nobody knows that.

Almost every day I read another news story about someone who was
exonerated after spending decades in prison. I've studied how
accused people get convicted, and concluded that it has very little
correlation with guilt. I've also studied how accused people get
exonerated, and concluded that it almost always depends on freakishly
rare circumstances, such as a film crew just happened to be filming
near him at the time of the crime (the Juan Catalan case), providing
an airtight alibi. Or evidence that was supposed to have been
destroyed years earlier being accidentally preserved into the DNA era.
So it's obvious that for every one of the thousands of Americans who
have been exonerated of serious crimes, there are at least a hundred
equally innocent Americans who were not.

So any innocent person accused of a serious crime who, unlike you,
is paying attention knows that if they plead guilty they may spend
a few years in prison, but after that they'll be free albeit with a
permanent felony record. And that if they do go to trial they will
almost certainly lose, especially if they can't afford a multi-million
dollar "dream team," and will spend the rest of their life in prison.
And that even if they win, they may spend more time in jail awaiting
trial, especially if they're elderly, have medical conditions, or are
known by their fellow prisoners to be accused of a sex crime or
to be a snitch.

Jim Gormley's client is an example of "reverse prisoner's dilemma,"
which consists of prosecutors saying something like, "Nice wife you
have there (or parent, or child). It would be a shame if something
happened to her."

More common is regular prisoner's dilemma, in which accused people are
rewarded for testifying against others. It was already ancient when
used in the Salem Witch trials. They only thing unusual about those
trials is that we know for a fact that every accused person was
innocent, since witches don't exist. Also note that no accused
witches who confessed, repented, and agreed to name and testify
against other accused witches were executed.

As for fingerprint evidence, ask Brandon Mayfield. Or read the 2016
President's Council of Advisors on Science and Technology's Report on
Forensic Science in Criminal Courts, which concluded that nearly all
pattern-matching forensic sciences other than single-source DNA, at
least as currently practiced in the US, are invalid. For instance
matching bite marks to teeth, shoe prints to shoes, hair (without DNA)
to people, bullets to guns or to batches of other bullets, handwriting
to its author, and even fingerprints to fingers. Don't take my word
for it, read that government report for yourself.

I assume we're agreed that it's profoundly unjust when an innocent
person pleads guilty. I hope we're all agreed that the fact that
the person was coerced or tricked into claiming to be guilty doesn't
excuse it. (But, again, a guilty plea isn't necessarily a claim to be
guilty, otherwise Alford pleas wouldn't exist.)

But what about when a guilty person pleads guilty? If he doesn't get
exactly the same sentence as he would if he had gone to trial and
lost, then either the plea bargain sentence is unjustly lenient or the
trial sentence is unjustly harsh, or both. You can't logically claim
otherwise unless you maintain that insisting on a trial isn't actually
a right, but is a separate crime in itself. So plea bargains are
unjust whether the defendant is guilty or innocent, unless there's no
trial penalty. And if there was no trial penalty, few people would
ever agree to plead guilty, since at trial there's always a chance
of acquittal, and the right to appeal if you lose.

You're also right that I "have no clue what future generations will
think." It could be that the US will fall into a brutal dictatorship,
reinstate slavery, or worse. But I'm an optimist. I believe in
progress, both technological and moral. I could be wrong. Last year
we came close to a permanent Trump-dynasty dictatorship. Thankfully
the January 6th mob was neither well-led nor well-armed. One of the
first things Dictator Trump would have done is execute the Central
Park Five, even though they were proven innocent and weren't accused
of a death penalty offense. They did give (coerced) confessions, and
one of them pleaded guilty.

As for the slavery analogy, the best argument for plea bargains is
that the system would collapse if everyone demanded a trial. Very
likely true. And the best argument for slavery was that the
southern economy would collapse if it was abolished. Which also
turned out to be true. The South went from the wealthiest part of
the US to a century of extreme poverty. But it was right to abolish
slavery despite this.

The added burden on the justice system can be mitigated by legalizing
all victimless crimes, especially drugs. It's nobody else's business
what substances an adult chooses to put into his or her body. Or what
sex acts consenting adults choose to engage in.

It is plea bargains, not trials that "shove the behavior of the
defendant behind the curtain as if it has nothing to do with the
case." Trials require that alleged behavior to be proven "beyond
reasonable doubt"; plea bargains take guilt of that alleged behavior
as the axiom on which the whole system is built. "If a person wants
to avoid the unpleasant choices being indictred [sic] presents, his
best option is to refrain ab initio from the behavior that gets him
indicted" is egregious question begging, a perfect example of treating
the guilt of every accused person as magically proven, perhaps by a
cop's intuition or by the frenzied barking of a "K9 unit."

As I've said, 44 years ago I was falsely convicted of office burglary
via a coerced and tricked plea bargain. I was completely innocent of
that all other crimes more serious than jaywalking. I don't claim to
be perfect. For instance I am ashamed that, although I'm normally
horrified and angry when someone is wrongfully convicted of a serious
crime, I would be quite pleased if it were to happen to you, since
apparently no other evidence -- there's that word you wrongly think
I ignore -- would convince you of how utterly broken and profoundly
unjust our system is, how totally lacking in both the scientific
virtue of falsifiability and the religious/humanist virtue of
humility. At the very least, people ought to have all their rights
restored and their record expunged once they have "paid their debt
to society" by serving their sentence.

Posted by: Keith Lynch | Oct 3, 2022 12:06:11 AM

Tarls, though I cannot speak for my "ilk," I hope you have paid enough attention to my writings to know I have been a robust advocate for jury trials in all criminal justice settings (even in habeas actions). Most critically, no plea deals are even possible absent them being offered and pursued by prosecutors --- and the extreme use of pleas advances prosecutorial tendency to overcharge defendants safe in the expectation that charges will never be seriously reviewed by a jury or anyone else. Ergo, I think it is Bill's prosecutorial "ilk" you need to lobby to get them to stop, in your words, seeking "the benefits of plea bargains without the risk of going to trial."

Or, perhaps SCOTUS will some day live up to its purported commitment to constitutional text and history in this context and, at least in federal cases, comply with Article III's command: "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury." I do not recall your criticism of SCOTUS rulings in which Justices have limited the jury trial right in various setting. Do you share my affinity for a robust interpretation of Article III and the Sixth Amendment to cover any and all form of "Crimes"? The more that defendants have the right to demand jury review of contested facts (and if we do not allow punishment based on acquitted conduct), the more likely they will be to seek for juries involved in our criminal justice process.

Put simply, Tarls, you are preaching to the long-ago converted (eg, I have criticized rulings like Watts and praised rulings like Apprendi and Blakely for decades). Jury trials serve as an important and needed check and a critical form of transparency for the work of the state in criminal justice systems. I also think we should have juries play a role in all forms of sentencing (not just capital sentencing) and they should also be part of parole and supervised release revocation proceedings, too (despite problematic SCOTUS rulings to the contrary that they do not have to be).

Posted by: Doug B. | Oct 3, 2022 9:57:01 AM

Doug --

"Tarls, though I cannot speak for my "ilk," I hope you have paid enough attention to my writings to know I have been a robust advocate for jury trials in all criminal justice settings (even in habeas actions). Most critically, no plea deals are even possible absent them being offered and pursued by prosecutors..."

What an odd omission! Isn't it at least equally true that no plea deals are possible absent their being agreed to by the defendant and his counsel, examined for voluntariness and accurate factual basis by the court, and accepted only after the court ascertains that this is what the defendant wants after having had time and opportunity to consider demanding his right to a trial?

Yes? No?

It sure was when I was an AUSA. And I think Rule 11 FRCP is still there, right? Why is it that the multiple, exacting requirements of Rule 11 tend to disappear in these discussions?

I agree with you that plea bargaining is overused. For one thing, it indulges laziness in the defense lawyer, the prosecutor and the court. For another, it lets defendants routinely get off with a fraction of what could have been proved at trial. I would like to see its use cut back, and I guess it could be, at least in federal jurisdiction, if Congress and the President were determined to do it. But they're too busy creating ruinous inflation, so reform of guilty pleas will have to wait. Well phooey.

Posted by: Bill Otis | Oct 3, 2022 11:32:49 AM

Keith Lynch --

Wow, I wish I had your time.

Just two questions. First, do you support my proposal to ban plea bargaining for a year and then let the stakeholders (judges, defense counsel, prosecutors and others) chime in on whether that was a good idea? Second, are you being sincere in saying that you don't know that the main reason defendants plead guilty is that they believe that, if they went to trial, they would lose?

Posted by: Bill Otis | Oct 3, 2022 11:39:00 AM

Of course, Bill, defendants and defense attorneys have to be willing to accept these deals. But they regularly do because (1) there is no serious review of the charging of multiple counts or the application of all sorts of mandatory minimums that can be charged and then bargained away, and (2) acquitted and uncharged conduct can and regularly does serve as the basis of significant sentencing enhancements. Make all these matters subject to jury review and/or other reforms, and we will likely see a lot fewer plea deals and a lot more jury trials.

Indeed, after Booker helped to reduce a bit these pernicious forces, I sense we have seen a few more "open pleas" as opposed to plea deals in the federal system. I trust you are not against open pleas, which are fully in control of the defense. It is really plea deals that are fundamentally in the hand of prosecutors. And if you and Tarls want their use diminished, that is clearly the group of players that you need to lobby. And you do not need Congress and the Prez -- you could just start by pushing one US Attorney's office or one local DA to, say, create an internal rule that it will not seek to secure more than, say, 50% of its convictions from plea deals. We could call that USA/DA a "constitutional prosecutor" rather than a "progressive" one.

So, Bill, how about we work together in creating a kind of new "MPC" guide -- a model prosecutorial conduct guide -- that explains why and how a constitutional prosecutor should be working to have no more than 50% of its convictions from plea deals. Tarls says he will "gladly pay more tax money to fund the prosecutors and judges needed to give a trial to each accused criminal." Perhaps he would also gladly fund our efforts to put together a new "MPC" guide for a better CJ system.

Posted by: Doug B. | Oct 3, 2022 12:53:21 PM

Doug --

What do you mean by "open plea deals"?

I'm sure you have more clout with the current DOJ than I do. I think they respect me, but they're not looking for my advice I assure you. Garland is a gentleman but pretty far to the left. Obama knew what he was doing when he wanted him on SCOTUS.

While I'm uncomfortable with the present extent of plea bargaining, I have no way of knowing what the right balance of resources is to get to a lower amount, or what an optimal lower amount would be. As long as there is the unfortunately large amount of crime we have now, the system is going to have to try to find a way to process more cases than can get put through trials. 50% sounds like an arbitrary number. As you might say, we need more research and data before we can say what lower target than the present 90% - 95% we have now is achievable consistent with the demands of public safety.

One way we can explore this ground is through the one year plea bargain ban I keep proposing but no one (with the exception of the ever-sharp TarlsQtr) seems interested in taking up.

Posted by: Bill Otis | Oct 3, 2022 1:16:55 PM

Sorry, my bad: I meant "OPEN PLEAS" -- ie, pleas without any deal with the prosecutor. And I would think allowing such pleas is how we deal "with the demands of public safety." I agree that 50% is an arbitrary number, but we have to start somewhere. A one-year ban will just lead to folks seeking delay until the year has passed, and I think there can be all sort of sound reasons for plea deals in some cases (eg, to spare harms/costs/delays to victims and others). The goal is to recalibrate, and I would welcome a chance to work with you on making that happen, perhaps when Tiffany Trump is AG.

Posted by: Doug B. | Oct 3, 2022 1:25:35 PM

Nope. No open pleas.

It’s just a method to get the benefits of a plea without the risk entailed.

Hasn’t your position been that everyone is entitled to a jury trial? Let’s give it to you, but you (and your ilk) don’t get to rig the game.

Your inability to endorse Bill’s idea wholeheartedly says it all. It’s not about “fairness.”

Posted by: TarlsQtr | Oct 3, 2022 2:03:21 PM

Tarls, I am all for a broad right to a jury trial, but if a defendant is prepared to admit his guilt to all the charges brought against him, I see limited reason to force victims and others to go through the costs and challenges that can be associated with a trial. That said, if you think it is a good idea to force the prosecution to put forward all their witnesses and evidence even in cases in which a defendant is fully prepared to admit to all the relevant facts, that will be fine with me.

Focusing on the federal system, do you think we will be able to have nearly 5000 completed trials each month? That is about how many convictions got sentenced in FY 2021 in the federal system, largely because now over 98% of convictions/sentences follow pleas. There were less than 1000 convictions after trials sentenced (963 to be exact) in FY 2021. If we went to a trial-only system, I suspect we likely would see much fewer than 10,000 federal convictions each year.

Cutting the federal conviction numbers by 80% or more would be fine with me, especially because the feds are involved in so many matters that could and should be local/state concerns. It also would likely lead to a massive decrease in our federal prison population over a few years. Indeed, that is why a Harvard Law Prof is eager to see this happen via defendant action: See Andrew Crespo, No Justice, No Pleas: Subverting Mass Incarceration Through Defendant Collective Action, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4003440

I will happily and eagerly and wholeheartedly endorse a system without pleas, though I also want such a system to have sound sentencing rules (eg, no sentencing increases based on acquitted conduct).

So, it seem we are building toward consensus, now we just need prosecutors on board.

Posted by: Doug B. | Oct 3, 2022 3:18:46 PM

A criminal always has the right to plead guilty, but let’s not knock off charges nor years off a sentence to do so.

The prison population will decrease only if we do not supply the resources (what your ilk is banking on) to hold these trials. I already stated I’m in favor of providing those resources. I’m even willing to endure the great evil of there being more defense lawyers and law professors to do it. Everything has a downside.

People getting charged with, going on trial for, and being sentenced for their actual crimes will not bring the prison population down. It should increase it nearer to where it should be, at least until we see the positive results of keeping bad people in prison and criminality going down.

While we are at it, let’s do away with that “concurrent” sentence BS too.

Posted by: TarlsQtr | Oct 3, 2022 6:09:48 PM

Doug --

A defendant can do a straight-up plea right now, but has to plead to the charges stated in the indictment. If you don't want a deal, fine, but then you don't get the benefits of a deal.

"A one-year ban will just lead to folks seeking delay until the year has passed..."

Not in EDVA, home of the rocket docket. We don't do continuances.

"The goal is to recalibrate, and I would welcome a chance to work with you on making that happen, perhaps when Tiffany Trump is AG."

I was hoping to get Tiffany in my class at Georgetown, but alas it didn't happen. I would have had to recuse myself from her grading, however, because I was at the time one of her father's nominees. If she does become AG, it will be the hottest AG we've ever had.

Posted by: Bill Otis | Oct 3, 2022 6:54:35 PM

TarlsQtr --

As you observe, the convicted criminals writing on this thread simply will not go along with my suggestion that we suspend plea bargaining even temporarily, even though they are unequivocal in stating that plea bargaining is grossly unjust and wrong if not evil.

And why is that?

Because they know that bargaining provides oodles and oodles of benefits to both defendants and defense lawyers, which is the real (although seldom admitted) reason they do it so very often.

Posted by: Bill Otis | Oct 3, 2022 7:06:15 PM

Tarls, in the federal system alone, I think we would need to triple the size of the judiciary (and federal prosecutors and federal public defenders) just to be able to get even close to half the number of current yearly convictions if most cases went to trial. Also, tens of thousand of trials likely will mean many thousands more appeals (and re-trials) since we will have no appeal waivers and all the motions/trials will provide lots of appellate issues. So, we may also need a lot more Circuit judges.

I share your eagerness to see "People getting charged with, going on trial for, and being sentenced for their actual crimes." I am inclined to read this phrasing to mean you are opposed to people being sentenced for acquitted conduct and/or uncharged conduct (but I believe Bill is a supporter of defendants being sentenced for acquitted conduct and/or uncharged conduct). I am glad you are willing to pay for all those extra judges and lawyers, and I wish others were likewise willing to pay for the constitutional justice system the Framers sought to ensure.

But, even with an influx of judges and lawyers, the only way we get away from plea deals is if prosecutors stop offering/pursuing them. Notably, the federal sentencing guidelines sought to diminish the power of prosecutors to cut sentences by cutting deals, but prosecutors have still found all sort of ways to cut deals (including Bill's (statutorily suspect) invention of appeal waivers in plea deals).

I am sincerely interested in working toward a world with far more trials and far fewer pleas. But resources are limited, and I am unsure if you really expect and want to pay for millions of trials nationwide for dealing with low-level driving and drug and other public order offenses. I expect we will see these kinds of cases to be triaged away in a world with more trials even if we triple the lawyers and judges. But if we get enough of us calling for a trial trial system, I think it would be a huge net good for society in all sort of ways. Perhaps we can create an advocacy group to channel these efforts.

Posted by: Doug B. | Oct 3, 2022 8:43:19 PM

Doug --

"I am inclined to read this phrasing to mean you are opposed to people being sentenced for acquitted conduct and/or uncharged conduct (but I believe Bill is a supporter of defendants being sentenced for acquitted conduct and/or uncharged conduct)."

I'm a supporter of allowing the court to sentence based on any behavior proved by a preponderance of the evidence, which is and for a very long time has been the law. In that regard, I'm supporting stare decisis, a doctrine liberals have been screaming about since Dobbs last June. I'm also a supporter of the relevant conduct rule, which has been in the Guidelines from their inception, and is one of the pillars of guideline sentencing (see Justice Breyer's concurrence in Watts). And I'm a supporter of statutory law, in particular 18 USC 3661, which states, "“No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.”

I think that puts me in a lot of authoritative company.

Posted by: Bill Otis | Oct 3, 2022 11:52:53 PM

Mr. Otis: "Wow, I wish I had your time." I'm retired, I'm a touch typist, and a feel strongly about criminal justice, as I learned the hard way that it is completely broken, and my extensive reading of all sides on the topic have not led me to change my mind.

As for whether I would want a one-year suspension of plea bargains, I want a *permanent* abolition of plea bargains, but only after trials are reformed such that it becomes extremely rare for an innocent person, even if gullible or not wealthy, to be convicted. The government (or state) should spend as much defending each defendant as they spend prosecuting him. Judges should warn jurors that police routinely lie under oath. To ensure the reasonable doubt standard, there should be a rule that if a convicted defendant is eventually proven innocent, the prosecutor, judge, and all 12 jurors will serve the same sentence he did. Will that merely cause *nobody* to be convicted? No, just those who were not proven guilty. No juror should vote guilty unless they have no more fear that they're wrong than they have fear that the courthouse might collapse and crush them to death. There's always the possibility tha a courthouse will collapse, but that's not a *reasonable* fear. And of course bogus forensic pseudoscience and fake expert witnesses should be abolished.

You ask "are you being sincere in saying that you don't know that the main reason defendants plead guilty is that they believe that, if they went to trial, they would lose?" That's not what you asked.
You asked " Do you really not get it that the huge majority of defendants who plead guilty do so because they know the evidence is overwhelmingly against them and that they would lose if they went to trial?" People are routinely convicted without the evidence being overwhelmingly against them, especially if they don't have millions for a defense. Often all it takes is the word of one mistaken or lying accuser.

Posted by: Keith Lynch | Oct 4, 2022 8:23:23 AM

Yes, Bill, there is lots of law allowing sentencing based on lots of conduct not proven at a trial. But we are talking about how to encourage more jury trial over plea deals (and perhaps even requiring them). If we are discussing and advocating a move to more jury trials, I would hope we would also want to give those trials more significance at sentencing.

Tarls has expressed interest in having "People getting charged with, going on trial for, and being sentenced for their actual crimes." I am eager to know whether he means that people should be sentenced only for conduct they are charged with and convicted of at a trial. You have confirmed that you are, in fact, a supporter of defendants being sentenced for acquitted conduct and uncharged conduct. But I am curious if Tarls, in light of his apparent affinity for trials, also supports sentencing based on acquitted conduct and uncharged conduct.

It is telling, but not surprising, Bill, that you claim to want more trials, but do not want to alter any of the pro-prosecution rules that primarily drive plea bargains (including your suspect appeal waivers). As I will keep stressing, the only way we will eliminate or reduce significantly the number of plea bargains is when PROSECUTORS decide to stop offering them. Prosecutors hold nearly all the power in deciding how cases go forward, especially in cases where guilt is relatively easy to prove as in many drug and gun and CP and immigration cases in the federal system, and so prosecutors are the essential player if we seek to have less plea deals.

Posted by: Doug B. | Oct 4, 2022 8:43:09 AM

We have recently had a case here in Central Kentucky where a state court prosecutor has told the defendant that he will not make a plea offer to him, but will take the case to trial no matter what. The case involves the defendant, who has a long criminal history, driving his car at police officers, running over an officers foot with a car tire, and pointing a gun at and shooting at the police (but hitting no one). I definitely understand the prosecutors perspective!

Posted by: Jim Gormley | Oct 4, 2022 12:31:20 PM

Doug --

"It is telling, but not surprising, Bill, that you claim to want more trials, but do not want to alter any of the pro-prosecution rules that primarily drive plea bargains (including your suspect appeal waivers)."

What primarily drives plea bargains is the defendant's knowledge and his lawyer's knowledge that if they went to trial they would lose because the evidence has them ice cold. I'm sure you know this, and I think it's odd that you want to make like you don't.

It's true my appeal waivers are "suspect" with criminals, as is much of what I do. They're just not suspect with ANY of the 12 circuits (unless you're tossing in with Keith Lynch in viewing judges as crooked co-conspirators to railroad the zillions of innocent defendants).

The irony is that you're wrong in any event: Adding the appeal waiver to the bargain makes it LESS attractive to defendants because they give up a statutory right they otherwise would have (as your side has been complaining for years). Thus appeal waivers would tend to encourage, not discourage, defendants from going to trial.

"As I will keep stressing, the only way we will eliminate or reduce significantly the number of plea bargains is when PROSECUTORS decide to stop offering them."

That is not only wrong but obviously wrong. Another way would be for defendants to REFUSE TO ACCEPT THE PROSECUTION'S OFFER, as hundreds or thousands of them do right now. A second way would be for the bar to write into the canons of ethics that it's unethical for counsel to accept an offer. A third way would be for Congress and legislatures to ban plea bargaining altogether. Right now, your friendly Dems have both Congress and the White House. They should go for it, and you should encourage them! Preferably before the midterms!!

Posted by: Bill Otis | Oct 4, 2022 2:33:44 PM

Bill, appeal waivers make plea deals more attractive to PROSECUTORS, so they are more likely to offer them. And, I will say again what you have not really disputed and cannot dispute: there would be no plea deals if and only when prosecutors decide not to offer them. Any action that making plea deal more appealing to PROSECUTORS makes plea deals more likely, and so if you sincerely want fewer plea deals you should join my advocacy against appeal waivers.

Of course, as advocated by some defense folks, plea deals could also be reduced if fewer were accepted by defendants. But prosecutors often can and will make deals even sweeter and sweeter to get them accepted even when initially refused (see, e.g., Jeffrey Epstein). More commonly, all competent defense counsel tell defendants (accurately) that they risk being hammered by both formal and informal sentencing rules if they exercise their trial rights (see, e.g., Weldon Angelos, Alice Marie Johnson and too many others to name), and so it would typically be unethical malpractice for a defense attorney to refuse to relay (and often advise the acceptance of) a reasonable plea offer being made by a prosecutors.

Yet again, Bill, it is telling that you put no responsibility on prosecutors for a problem largely of their making and entirely in their control. If you really think plea deals are unethical or problematic --- in general or in individual cases --- the right targets are the prosecutors who cook up the deal and decide on nearly all of its ingredients, not the defendants who have to live with the consequences of a system that systematically and predictably imposes significantly more severe sentences on those who exercise their trial rights.

Posted by: Doug B | Oct 4, 2022 3:03:38 PM

Doug --

At 8:43 this morning, you wrote, "As I will keep stressing, the only way we will eliminate or reduce significantly the number of plea bargains is when PROSECUTORS decide to stop offering them."

Do you see the word "only" in there? Does it have a meaning?

At 3:03 this afternoon, you wrote, "Of course, as advocated by some defense folks, plea deals could also be reduced if fewer were accepted by defendants."

I don't need to contradict you when you contradict yourself (in less than six and a half hours).

You then wrote, "But prosecutors often can and will make deals even sweeter and sweeter to get them accepted even when initially refused (see, e.g., Jeffrey Epstein)."

Goodness gracious! Are you telling me those cruel, bone-crushing prosecutors are making deals "sweeter and sweeter"? Giving more and more breaks to defendants?? Oh dear, I need my smelling salts. How could they!!!

Can we just cut to the chase? Federal plea deals could be curbed or eliminated if any of these were to happen: (1) Congress were to ban them. (Who controls Congress?); (2) the AG were to bar their use (Who's the AG? A right wing Republican?); AUSA's on their own no longer offered them (which is theoretically possible at least for the 48 hours it would take to get fired for being nuts); or (4) those paragons of courage and virtue, the members of the defense bar, stood up in their righteous wrath and told the government, "You can take your offer and.........(I'm trying to remember that this is a family blog)."

Of course in the real world, none of that is going to happen, not because prosecutors are Constitution-bashing thugs, or because defense lawyers are cowards, but because, as you fully know, THE ENTIRE PROFESSION AND THE COURTS LIVE OFF PLEA BARGAINS because the economics of it leave no choice.

See there? Telling the plain truth ain't that hard.

There's not much of a chance, but a better one, that my proposed one-year experiment could get adopted, so I continue to be disappointed (but not surprised) that the only person on this thread who wants an at least modestly realistic route to test alternatives to plea bargaining and gather data is TarlsQtr.

Finally, re-reading your comments here, I'm struck by how much you seem to have been entranced by Academic Fantasy Land, in which only the Big Bad Government to blame, and long-time drug dealers like Angelos and Alice Johnson are, not only not criminals, but heroes. They've come farther than most pushers, that's true, but heroes they are not.

Posted by: Bill Otis | Oct 4, 2022 5:38:31 PM

Pedantic much, Bill? I am saying the only practical way to reduce plea deals now is to have the people who propose plea deals stop proposing them so often (and that is 2 of your 4 listed possibilities). But you are right that this is unlikely to happen soon. But I am right that if you really have a problem with plea deals, you ought to take that up with the prosecutors who propose them.

What could perhaps happen that might make plea deals at least a bit less frequent is to remove or lessen the forces/tools that lead to so many plea deals. If we reform the severity of our sentencing systems (especially after trials), eliminate MMs, appeal waivers, uncharged conduct sentencing and lots of other problematic forces that drive the pressure to cut deals, maybe we will see fewer deals. (Meanwhile, we are still waiting to hear from Tarls about his view on acquitted and uncharged conduct at sentencing given his stated affinity for seeing more "People getting charged with, going on trial for, and being sentenced for their actual crimes").

This is not a story of "Academic Fantasy Land" or a claim that all prosecutors are evil and Weldon and Alice Marie (both of whom were pardoned by Prez Trump) are heroes. It is about being clear-eyed about the structure of a criminal justice system that encourages prosecutors to over-charge and over-bargain so that millions of people can be prosecuted and punished "efficiently." Justice Scalia railed against this system of "administrative justice" in Blakely, a decision I support and that you think is wrong. Indeed, you are still yet to express support for a single SCOTUS decision extending Sixth Amendment jury trial rights, so your claimed affinity for more trials rings quite hollow.

I fully welcome and support your "proposed one-year experiment" and there are 94 US Attorney Offices and thousands of local DAs who could try it starting tomorrow. (Notably, long-time Ohio Hamilton County DA Joe Deters has long had a no-plea-deal approach to any case in which he brought a capital indictment, and I especially respected that approach because juries exercise sentencing authority in capital cases.) And that gets to my main point -- the only realistic way to get your experiment going is to get a prosecutor to adopt it AND if he does you do not need anyone else to go along because PROSECUTORS are the ones. and only ones, in our system who can make plea deals happen (and so they can stop it at any time).

So, Bill, shall we work together to try to get a "constitutional prosecutors" elected who will pledge to go a year without plea deals? Am I wrong to think that is the most efficient and effective way to move forward with your experiment since prosecutors are the ones that offer deals and so they can be the ones to stop them?

Posted by: Doug B. | Oct 4, 2022 7:11:23 PM

Doug --

While getting to a system with fewer bargains and more trials would be a good thing, it's not the most important thing. The most important thing in electing DAs is to get people committed to bringing down crime and unapologetically holding the people who commit it accountable. I would not work with you (or anyone) to help bring into office a DA with some different No. 1 priority.

Meanwhile, defense lawyers are hardly helpless. If you're a defense lawyer and you think plea bargaining is an abomination, fine, tell your prospective client when you first meet him that you don't do it. You do trials only. If he wants a lawyer to do bargaining, OK, there are lots and lots and you'll help him find one, but it rankles your conscience so you won't be the guy.

I would have nothing but respect for a defense lawyer like that. Wouldn't you?

Posted by: Bill Otis | Oct 5, 2022 12:14:48 PM

Keith Lynch --

Did you plead guilty or nolo?

Posted by: Bill Otis | Oct 5, 2022 12:21:37 PM

Bill, do you think the trial-only criminal lawyer would be ethically obligated to tell his clients that most defendants in general (and surely most of his clients in particular) get much longer sentences if they get convicted at trial than if they cut a plea deal? I think that would be an essential part of a trial-only criminal practice. As for respect, plenty of defense lawyers have a well-earned reputation for being great trial lawyers, and I have respect for good lawyering whenever I see it.

That said, Bill, I would not have respect for a criminal defense lawyer who 100% knows their client is 100% guilty and that a trial would be a horrible experience for the victims of his crime, but yet goes forward with the trial because his client is eager (and can pay) to see the lawyer put the victims through hell. Some (but hopefully not most) trials can be conducted unethically --- especially if lawyers are not being truthful and not ensuring witnesses are truthful --- just like some (but hopefully not most) plea deals can be unethical.

Somewhat relatedly, do you think it would make sense, Bill, for a civil lawyer to run a practice in which he pledged never to agree to any settlement for a tort defendant? Perhaps some civil defendants want such a lawyer, and the market will hash that out. In the criminal arena, however, 80%+ of the defense lawyering is done by overworked and underpaid public defenders. In that setting, and especially because of the well-known realities of the trial penalties for clients, the whole structure of our criminal justice machinery pushes everyone toward a plea deal in 19 cases out of every 20.

That said, I am now wondering if we might use the power of markets to our advantage here. Especially since Tarls is eager to chip in, perhaps we can and should create funding mechanisms for public prosecutors and public defense attorneys that incentivize more trials. We could say, for example, that prosecutors and defense attorneys will get an extra yearly raise if they conduct a certain number of trials OR that they get paid more on an hourly basis for time in an actual jury trial. Would you support that kind of economic incentive to work against the existing structural incentives that give us too many plea deals (especially if Tarls is paying)?

Posted by: Doug B. | Oct 5, 2022 12:37:52 PM

Doug --

"Bill, do you think the trial-only criminal lawyer would be ethically obligated to tell his clients that most defendants in general (and surely most of his clients in particular) get much longer sentences if they get convicted at trial than if they cut a plea deal?"

Since the prospective client never becomes an actual client, I don't think the lawyer has any ethical obligation to him. But if it were me, yes, I would tell him that generally, although not always, a plea bargain defendant gets a lighter sentence than one who falsely denies guilt at a trial.

"That said, Bill, I would not have respect for a criminal defense lawyer who 100% knows their client is 100% guilty and that a trial would be a horrible experience for the victims of his crime, but yet goes forward with the trial because his client is eager (and can pay) to see the lawyer put the victims through hell."

There's a reason I never went into that line of work.

P.S. I've often seen in the comments section here that the defense lawyer has no business making a judgment about the client's actual guilt.

P.P.S. I never heard of a defense lawyer who took the victims' interests into account in formulating either trial or bargaining strategy. I'm not saying there are none, but none crossed my path. My experience is that victims were regarded as objects to be managed, not actual human beings.

Posted by: Bill Otis | Oct 5, 2022 1:19:36 PM

Doug,

A defense attorney who cares about not putting victims through the stress of a trial. Did you type that with a straight face? Hell, wouldn’t taking that into consideration be against the oxymoronic concept of defense “ethics?”

Re:Acquitted/Uncharged Conduct

In a vacuum, I would be against such sentencing. I don’t like the justice system being a game. You were convicted of A. You were sentenced for A. You do the sentence for A, not 1/3-2/3 of it because you didn’t kill someone in prison. No 10 years of appeals because of some BS that doesn’t even have to do with actual innocence.

Unfortunately, we don’t live in that vacuum. You and your ilk want to keep playing the game but also take away the prosecutors’ chess pieces before it even starts. The “slippery slope” is always called a fallacy but in law and leftist culture wars, we always end at the bottom of that slope. I may disagree with the premise of acquitted conduct, but I’m not about to lecture Bill about it. He has seen a lifetime of those slopes.

Posted by: TarlsQtr | Oct 5, 2022 4:10:53 PM

Doug,

I believe your hypothetical about a tort lawyer would be a welcome development. If you can only sue for what you believe you can actually get, these silly $2 million lawsuits because you slipped on ice would become $20,000 lawsuits as there is no middle ground. This would be enhanced even more if the loser had to pay attorneys fees.

Posted by: TarlsQtr | Oct 5, 2022 4:20:24 PM

Mr. Otis: "Did you plead guilty or nolo?" Objection: Asked and answered. See https://sentencing.typepad.com/sentencing_law_and_policy/2022/01/no-justice-no-pleas-subverting-mass-incarceration-through-defendant-collective-action.html

I did ask my court-appointed lawyer if I could plead nolo contendre, which I had only heard of because Spiro Agnew had recently done so. He said no, that's not allowed in Virginia. Was he lying? I don't know. I should have asked about an Alford plea, but I had never heard of Alford; maybe his case hadn't happened yet.

This thread isn't just about me, but also about the millions of other Americans who are coerced and/or tricked into pleading guilty to something they didn't do, or punished severely by refusing to plead guilty but instead demanding their right to a fair trial.

I'll once again ask you something you never answered. If a mugger were to demand that you hand over your wallet, and that you sign an affidavit that you're doing so of your own free will because the wallet is rightfully his, and not because he is pointing a gun at you and threatening to shoot you, would you sign? And if you did sign, would that make the mugger innocent of stealing your wallet and make you guilty of having previously stolen the mugger's wallet? Yes or no. If you can't see how this situation is almost identical to a plea bargain, tell me and I'll explain it in smaller words.

Posted by: Keith Lynch | Oct 5, 2022 6:13:43 PM

If you don’t sign the mugger’s affidavit, you don’t then get to exercise a constitutional right.

Posted by: TarlsQtr | Oct 5, 2022 6:54:53 PM

I share your disinterest in the justice system being a game, Tarls, and as I see it nobody should be viewed as having "chess pieces" or should approach justice as a zero-sum game. Rather, the state should write rules and prosecutors should apply those rules in ways that serve both substantive and procedural justice. Of course, people have different visions of justice. But I think it quite foolish to think anyone should expect or hope two forms of injustice will somehow get us closer to justice.

If you think that justice involves getting rid of parole and eliminating appeals and precluding sentencing based on acquitted/uncharged conduct, I suggest you advocate for all those visions of justice. Justice never exist only in a vacuum, but injustice grows when people compromise their visions of justice because they think others do or because they disagree with another's vision of justice.

I appreciate you clarifying that are conceptually against such acquitted/uncharged conduct sentencing, but I surmise you (eagerly? happily?) accept its use as long as it serves to "own the libs" or "own defense attorneys." Such seems to be the way of the world these days -- ignore or betray principles as long as the "right" political ox gets gored as a result.

Posted by: Doug B. | Oct 5, 2022 9:00:55 PM

It’s not about whose ox gets gored at all.

This trap has been played for decades. The left says, “I’ll put my gun down if you lower yours”, then shoots as soon as the gun is lowered.

I don’t want unilateral disarmament.

What I am for is the MAD principle. I’m not willing to see civilized society get trounced over your pro-crime/criminal policies. Lower your gun first, for once.

Not a criminal case, but there is an excellent example this very evening. During the lead up to Obergfell, we were told ad nauseum that it would go no further than gay marriage. Those who said it left open the idea of polygamy were ridiculed. That would NEVER happen! Yeah, well, now it’s happening.

I just don’t have the trust in you, the rest of legal academia, or the defense bar to go along with a “no games” policy.

The left never gives an inch on anything unless given no other political choice.

Posted by: TarlsQtr | Oct 5, 2022 10:20:46 PM

Keith Lynch --

"If you can't see how this situation is almost identical to a plea bargain, tell me and I'll explain it in smaller words."

No it is nothing like a plea bargain, which you might be able to grasp if you weren't absolutely coated with malice.

The problem is not that I don't "see" it; the problem is that it's not true -- something you would know if you took at all seriously the fact that our justice system, though imperfect (like every other justice system), has been put together through many decades of painstaking, good faith effort by people of all political persuasions, people a good deal smarter and less bile-filled than you are.

But for however that may be, don't hand me this "smaller words" bullshit. You do not condescend to me. Apologize and I'll answer your questions. Otherwise, I'm not going to attempt to have a conversation with a convicted felon who insults me.

Posted by: Bill Otis | Oct 5, 2022 10:41:27 PM

TarlsQtr --

"This trap has been played for decades. The left says, 'I’ll put my gun down if you lower yours', then shoots as soon as the gun is lowered. I don’t want unilateral disarmament."

BINGO!!!

One good example is the death penalty, where we were told for years that, if we gave up the DP, it would be replaced with LWOP, from which the killer would never, ever, ever see the outside of a prison.

So what happened? When several jurisdictions abandoned the DP, the very first thing we saw was these same people frenetically campaigning against exactly what they assured us would be the DP's replacement. Because, ya see, LWOP is soooooo nasty.

Another example is when criminal justice reform people tell us again and again that if we adopt their proposals, we'll be "just as safe." Over the last several years, as more and more of their programs have been adopted, we are anything but just as safe. Murder is up significantly.

Do they take responsibility? Sure they do!!!

Posted by: Bill Otis | Oct 5, 2022 10:55:02 PM

Mr. Otis: You have repeatedly insulted me and implied that I'm definitely guilty of either the crime I was charged with 44 years ago or of perpetrating a fraud on the court. It was people of your ilk who used lies, trickery, and threats to get me (and countless other Americans) falsely convicted, to spend two years in an utterly inhumane and dangerous prison, and caused me to permanently lose important rights and opportunities. But *I'm* the one full of malice? *I'm* the one who needs to apologize? You're like someone who without provocation smashes my face in causing permanent disfigurement, then mocks me for being ugly.

Since I will not apologize for my trivial insult, I guess I'll have to live without your answering my questions. Since most of them are rhetorical, since I have no reason to trust anything you say, and since you've emphasized several times that you're not my lawyer hence have no duty to me (apparently not even the "duty" of civility, honesty, humility, or basic human decency), this will be a very small loss to me.

Despite your beloved "justice" system's attempts to destroy my life, I've been mostly happy and very productive. I'd bet I've done far more to make the world a better place than you have.

I won't ask you about your religious beliefs. But if you believe any conventional religion, I think you should be in grave fear of what happens when you face *true* justice, from Someone omniscient who can't be fooled and Who hates lies, coercion, and those who prey on people who are young, poor, weak, or gullible.

Posted by: Keith Lynch | Oct 5, 2022 11:35:40 PM

Keith Lynch,

I worked in the NYS prison system for 10 years as a teacher. Interestingly enough, my students were also all railroaded by a corrupt and dishonest system.

Funny how that works.

Posted by: TarlsQtr | Oct 6, 2022 5:55:42 AM

TarlsQtr: "Interestingly enough, my students were also all railroaded by a corrupt and dishonest system." All of them? That's surprising. In my prison, more than half admitted guilt. One said he was innocent of the crime he was convicted of, and had an alibi, but his alibi was that he was committing a more serious crime elsewhere and the same time, so he didn't use it.

It's possible that most of your students were telling the truth. Especially those who had a perfectly clean record before and after their one arrest, and who had none of the usual correlates of criminality (drug use, uneducated, promiscuous, in debt, etc.), and continued to maintain their innocence long after their case was over, even though our society hates innocence narratives and loves redemption narratives.

A high rate of false convictions would certainly explain why crime rates are high despite incerceration rates being high. The system is convicting the wrong people. Note the thousands of exonerations, many in cases in which appeals judges said the evidence of guilt had been overwhelming.

Every accused person should get a fair trial, with as much spent on defense as on prosecution, and with techniques that correlate with false conviction (e.g. prisoner's dilemma, plea bargains, and lying cops) abolished.

Posted by: Keith Lynch | Oct 6, 2022 7:22:19 AM

Tarls, I am not familiar with your polygamy reference, as I am not aware of any court in the now 7+ years since Obergfell (or the now two decades since Goodridge) was decided that has held that there is a constitutional right to polygamy. Did I miss a ruling that you are referencing? I am aware that some Mormon fundamentalists believe the practice of polygamy should continue, but I doubt that is what you mean. But this is not my area, so maybe I have missed something.

Marriage rights aside, I am advocating for principles of justice as applied in the United States, not "unilateral disarmament." Let's do an economic example, if you thought extreme child labor was unprincipled and unjust and should not be allowed, but thought minimum wage laws were silly and harmful to the economy, I hope you would not support extreme child labor because you were grumpy about "the left" advocating for an ever higher minimum wage. Or, to move to crime policy, It is my understanding that you think abortion is unjust in all cases. I presume you will not start supporting abortion even though there is evidence that Roe contributed in part to the great crime decline of the 1990s and 2000s (or if folks on "the left" start pushing for massive wealth transfers to every woman who gets pregnant under the Fifth Amendment's Takings Clause).

And so, if you sincerely think it is unprincipled and unjust to sentence in the US based on acquitted/uncharged conduct, I would hope you would speak out against such injustice and look to address your other concerns about "pro-crime/criminal policies" without compromising those principles. But maybe I misunderstand you as a man of principle -- or, perhaps like too many across the political spectrum these days, this is another example of a person giving up on being true to principles because of some notion that the other side plays too dirty to allow anyone to remain principled.

Posted by: Doug B. | Oct 6, 2022 9:37:29 AM

Keith Lynch --

Well Reverend Lynch, I'm right worried that I'll be going to hell, as you authoritatively tell us, but until I get there, there are a few questions 'round and about.

-- You pleaded guilty. You've said so more than once. But now you say you weren't guilty. Hey, well, look, there are only two options. Either you actually were guilty, as you told the judge, or you weren't, in which case you were lying in the most important matter in your life (to that date). So you're either a properly convicted felon or a liar. Which?

-- You've said that ALL cops are liars and that ALL plea bargains should be abolished as unfair (at the minimum).

I hope you can at least dimly grasp how preposterous both statements are. I'm sure there are cops who lie, as there are people in every profession everywhere who lie, but your sweeping, "every-cop's-a-crook" statement isn't true and the part of you that's sane knows it's not true. So why not take this chance to withdraw it and join the rest of us who see nuance in the world?

As to plea bargains: They have been approved and are routinely accepted by the higher courts (state and federal), legislatures, trial courts, prosecutors and defense lawyers by the thousands. But all these thousands of people are, in your greater wisdom, not merely wrong or misguided, but immoral.

Do you get it why you cannot be taken seriously?

-- You think both plea bargains and trials are shot through with so much bias that neither can be accepted by moral people. Oh, OK then, how do you propose that criminals be brought to justice? And I don't mean in some fantasyland years down the road. I mean tomorrow and next week and next month. Are we just going to take a pass? Crime's not that bad? We can learn to live with it? What?

-- You've also said more than once that it's not about you. But then you proceed to talk about yourself on and on and on, always portraying yourself as the innocent victim of everyone around you, including your lawyer and your judge. But the paranoia you display, while breathtaking, pales besides your indignant self-absorption.

You wuz robbed! The system cheated you! And you won't let it go no matter that, for everyone else, it's faded years into the past.

In this, at least, you sound just like one quite prominent public figure -- Donald J. Trump. Congratulations!

Posted by: Bill Otis | Oct 6, 2022 10:12:50 AM

Doug --

I believe the polygamy case TarlsQtr is referring to is this: https://www.washingtonexaminer.com/opinion/court-that-first-legalized-same-sex-marriage-now-legalizing-polygamy

Posted by: Bill Otis | Oct 6, 2022 10:22:29 AM

Thanks, Bill, I had not seen that case. That said, the denial of summary judgment in an eviction case seems to me a very long way from finding a constitutional right to polygamy. Still, there likely people beyond just Mormon fundamentalists who believe the state should not be able to limit how many people they should marry. But I am pretty confident these beliefs will not be established constitutional law anytime soon.

Posted by: Doug B | Oct 6, 2022 11:00:04 AM

Doug,

1. Bill is referencing the correct case.
2. A criminal is not a victim, such as those being used as “extreme child labor.”

And you are advocating “unilateral disarmament.” Just like the rest of legal academia and the defense bar, the ratchet always goes in one direction on this blog. This is true from the stances taken right down to the language. For example, “mass incarceration” instead of “mass crime,” as if the two are not connected.

Posted by: TarlsQtr | Oct 6, 2022 11:13:01 AM

Keith,

“All” wasn’t meant to be taken literally, but an overwhelming majority. Even if not “criminally innocent,” then morally so. For example, a teacher’s aide I had swore the system screwed him. You see, his wife’s brother came to the door and started screaming at her (the door was closed). The brother-in-law said some unkind things, so the inmate took it upon himself to shoot him through the closed door with a 12 gauge. His words still ring in my ears. “He disrespected my wife! What was I supposed to do?”

Or, we have this kind of “innocence” that I heard a million times. He is riding in his buddy’s car, who gets pulled over. They search the car and find a ton of coke and a gun underneath the passenger seat. “I didn’t know it was there!,” even though the buddy is a known drug dealer, driving an Escalade, and never had a real job in his life.

Innocent my a$$.

Posted by: TarlsQtr | Oct 6, 2022 11:24:03 AM

Doug,

That is the exact same court that first found a legal right to gay marriage. Obergfell was a “very long way” too, but sure is hell completed the path. And I think Obergfell had MUCH larger legal hurdles to overcome, as it has now outlined the legal argument made for this polygamy case.

In light of Obergfell, what tenable arguments are there against polygamous relationships?

Posted by: TarlsQtr | Oct 6, 2022 11:29:31 AM

Tarls, perhaps your view is that there are no important principles needing to be vindicated or safeguarded by a society when the state deals with "criminals." This clearly was not the Framers' view, but it is a viable one. If that is your view, then I better understand your willingness to accept sentencing in the US based on acquitted/uncharged conduct.

As for the campaign for marriage equality, though I have not followed all the arguments closely, the strongest argument for Obergfell always seemed similar to the equality argument for Loving. If the state is going to authorize and give significant benefits for two adults getting married, the state cannot restrict who those two adults are based on race or based on gender. Right now, I do not believe any state allows or benefits any plural marriages (but if one did for Mormons, I think they would have to do so for others equally). Providing the marriage benefit equally does not obviously demand extending/expanding that benefit.

Of course, some people make arguments that anyone should have a right to marry an animal or a tree or multiple people. But, we are now nearly 20 years since Goodridge found a right to same sex marriage and no court has yet to find a constitutional right extended to these broader claims.

Posted by: Doug B | Oct 6, 2022 1:03:47 PM

Doug --

"Tarls, perhaps your view is that there are no important principles needing to be vindicated or safeguarded by a society when the state deals with "criminals." This clearly was not the Framers' view, but it is a viable one. If that is your view, then I better understand your willingness to accept sentencing in the US based on acquitted/uncharged conduct."

Sentencing based on acquitted/uncharged conduct was explicitly approved by the Supreme Court in Watts, with, inter alia, Souter, Breyer and Ginsburg joining every word of the majority opinion. Did they too take the view "that there are no important principles needing to be vindicated or safeguarded by a society when the state deals with 'criminals'"?

Gads, Tarls aligned with the big liberal trio and you tut-tutting them. I do need my smelling salts.

Posted by: Bill Otis | Oct 6, 2022 1:17:21 PM

Tarls wrote: "Re:Acquitted/Uncharged Conduct. In a vacuum, I would be against such sentencing." I am trying to understand what is driving this view and/or why he is not concerned about its vindication. I do not mean to "tut-tut," I am just am eager for a better understanding of his views and thinking.

Posted by: Doug B. | Oct 6, 2022 1:45:37 PM

Doug and Tarls --

Earlier, I wrote, "Gads, Tarls aligned with the big liberal trio [approving use of acquitted conduct at sentencing] and [Doug] you tut-tutting them. I do need my smelling salts."

That sentence is mistaken in part. Tarls did not align with the big liberal trio (Souter, Breyer and Ginsburg). Instead, Tarls took the more liberal position that such conduct should NOT be used at sentencing.

Therefore: Tarls: sit in the corner. Doug: So Souter, Breyer and Ginsburg were on the side believing "that there are no important principles needing to be vindicated or safeguarded by a society when the state deals with criminals"???

I can't believe you really think that, but I will stand to be corrected if you do. For myself, I think those three Justices, and the Court itself, including Scalia, were correct in Watts.

Posted by: Bill Otis | Oct 6, 2022 3:37:07 PM

Bill, you are foolishly conflating policy views and constitutional views, as you are sometimes wont to do when it serves your rhetorical interests. Tarls and I are discussing policy views -- though I am not quite sure he takes the view as a policy matter that "conduct should NOT be used at sentencing." And I know nothing about his constitutional views on this matter because we have not addressed that matter.

Meanwhile, Justices Souter, Breyer and Ginsburg all voted to uphold the constitutionality of acquitted conduct sentencing in Watts. But that does not reveal whether they support or oppose such an approach to sentencing as a policy matter. (Indeed, Justice Breyer concurred separately in Watts to stress that the US Sentencing Commission could amend the guidelines to "instruct the sentencing judge not to base a sentence enhancement upon acquitted conduct.")

You are smart enough to know all this, Bill, but I guess I am pleased to see you tie Tarls to the position that acquitted and uncharged conduct "should NOT be used at sentencing."

Posted by: Doug B | Oct 6, 2022 10:44:07 PM

Mr. Otis: In your latest screed, you once again simultaneously accuse me of talking excessively about my own case, and ask me questions about my case that I've already answered as best I can. So do you want me to talk about my case more? Or less? Which is it? I can't do both. And why keep asking me the same questions? Are you hoping I'll contradict myself? Do you think you're in court cross-examining a witness?

As I said before, I knew I was pleading guilty to something, but didn't know what. I had been raised to always trust authorities and experts and do what they say even if I didn't understand it. My court-appointed lawyer assured me that I was "technically guilty," not saying of what, and assured me that the judge knew I hadn't done anything seriously wrong, and that I needed to "take responsibility" in order to "move on with my life." He said that if I were to insist on a trial, he would resign and I'd be on my own. I knew that I knew nothing about conducting a trial. I was (and still am) a perfectionist, so I *felt* guilty, as I felt that I somehow should have known that my roommate was using our shared apartment to store stolen property.

It was 44 years ago, nearly 45, and I was very confused. All I know for sure is that I would never knowingly lie. If you want more information about my case than I remember, you know better than I do where you can find it.

Why are you simultaneously obsessed with my case, certain that I'm lying, and unwilling to go to the slightest effort to learn more about it from official sources?

And even if I am a lying liar who lies, and committed a million serious felonies, that wouldn't detract from the large number of people who pleaded guilty who were later *proven* to have been innocent.

Posted by: Keith Lynch | Oct 7, 2022 12:03:08 AM

Doug --

What is wise is to continue to honor and follow the longstanding rule that facts showing guilt must be established BRD, but that facts relevant to sentencing, whether examined at the guilt stage or not, need only be proven at the sentencing stage by a preponderance. This is not exactly radical stuff.

I mean, good grief. If as defense lawyers have been saying for years, sentencing should look at the whole person, fine, let's look at the whole person. That does NOT mean the whole person minus the bad parts. It means the whole person.

P.S. Yup, I know the difference between policy choices and constitutional ones. So did Justices Souter and Ginsburg when they pointedly did NOT join Justice Breyer's concurrence when they easily could have. Or do you think they just weren't paying attention?

Posted by: Bill Otis | Oct 7, 2022 12:07:20 AM

Mr. Otis: You ask me how I would run the justice system. I don't claim to be an expert. I only have negative answers. Not with lies. Not with coercion. Not with threats. Not by gaslighting gullible defendants. Not by rewarding people for testifying the way prosecutors want them to. Not with unproven or disproven forensic pseudoscience. Not by threatening defense witnesses with perjury charges. Use techniques that correlate with actual guilt, not techniques that work just as well to convict the innocent as to convict the guilty.

One government agency I do have respect for is the NTSB. We know it works because plane crashes in the US are increasingly rare. Create an agency that examines every wrongful conviction as completely as the NTSB examines each plane crash, and take their suggestions.

As for whether all police are liars, they're all required to use the long-discredited Reid Technique when interrogating suspects. Lying is central to that technique. A cop who refuses to lie would be immediately fired.

Posted by: Keith Lynch | Oct 7, 2022 12:14:33 AM

Bill, Miranda was decided 30+ years before Watts and so is much more long-standing as a matter of SCOTUS doctrine (and the Apprendi line of cases undercut Watts in many ways while Dickenson reaffirmed Miranda). Should I be expecting you to honor and follow Miranda soon?

PS: Souter and Ginsburg were on board with the Apprendi Sixth A jurisprudence, suggesting they quickly realized Watts is a constitutional blemish, not a precedent to embrace and expand. But, again, at issue here is sentencing policy and whether Tarls views of principles and policies in this context is driven mostly by opposing “the left” rather than doing what he thinks is right.

Posted by: Doug B. | Oct 7, 2022 8:23:00 AM

Doug,

What I am “driven by” is fairness, not owning the libs.

For example, if uncharged conduct is not to be heard, it should go in both directions. Then don’t tell me to consider how the criminal supposedly took care of his sick grandma and adopted two stray puppies.

Posted by: TarlsQtr | Oct 7, 2022 9:11:28 AM

Bill,

I typed the above from the corner, as you didn’t say I had to be without my phone. :-)

Posted by: TarlsQtr | Oct 7, 2022 9:15:05 AM

Not sure I understand, Tarls, how this can "go in both directions." How is a criminal defendant suppose to "charge" facts concerning "care of his sick grandma and adopt[ing] two stray puppies"? Defendants cannot control what gets charged (AND certainly cannot be "acquitted" of mitigating personal facts). Only prosecutors control charges regarding alleged criminal conduct, and we are discussing the policy (and fairness?) of defendants receiving longer sentences --- often MUCH longer sentences --- based on alleged criminal conduct which has been the basis for a jury acquittal or has NOT been considered by any jury (nor admitted by the defendant).

If you are eager to see broader jury involvement in the consideration of all aggravating and mitigating facts at sentencing, we are on the same page (and this is what we now do in capital cases). But, because prosecutors, and only prosecutors, control what criminal conduct gets charged (or goes uncharged), there is no parallel "fairness" between acquitted/uncharged conduct used by judges to aggravate sentences and whatever facts defendants offer hoping to mitigate sentences.

Moreover, if you really would like to see more jury trials and less plea deals cut by prosecutors, you should be against uncharged sentence enhancements: these enhancement make it especially easy for (lazy?) prosecutors to cut deals that involve the dismissing of various additional counts so the parties can just dicker about these matters before only a judge.

It seems, Tarls, that you have quite quirky notions of both marriage equality and criminal justice "fairness."

Posted by: Doug B | Oct 7, 2022 9:54:09 AM

Tarls (cc: Doug) --

Doug is a veritable genius at the fancy-dance explanation about why sentencing courts should be free to look at all the good stuff about the defendants behavior, but should have to ignore the bad stuff (e.g. uncharged but not-so-nice conduct).

He'd have a better case with ACQUITTED conduct, but only if "acquitted" meant that the jury found the defendant didn't do it. But that's not what "acquitted" means, and Doug knows this. It could mean jury nullification, which Doug (I believe) applauds. Or it could mean that the jury thinks the defendant in fact did do it, but can't quite say so BRD. Indeed, that's often what it means.

He has often accused you and me of unprincipled result orientation -- indeed he's done it several times just on this thread -- but he might want to look closer to home. He's all for stare decisis when it's favorable to criminals (Miranda), but wants to chuck it over the side of the boat when it isn't (Watts).

Not that getting rid of Watts would get him where he wants to go anyway. Long, long before Watts, the standard of proof at sentencing was preponderance, and that's where it is now. As long as it stays there, it's simple logic that courts will be able to sentence based on that standard even if the facts they look at have not been shown BRD. For sentencing, now as in the past, THEY DON'T NEED TO BE SHOWN BRD. This is really first year law school stuff.

Posted by: Bill Otis | Oct 7, 2022 10:44:49 AM

TarlsQtr (and anyone else interested in hypocrisy in dealing with stare decisis) --

I wrote on this topic just yesterday on Ringside at the Reckoning, https://ringsideatthereckoning.substack.com/p/stare-decisis-legitimacy-and-liberals

Posted by: Bill Otis | Oct 7, 2022 10:57:24 AM

Keith Lynch --

I asked you how we should bring criminals to justice if we can't use trials (which you condemn as grossly and structurally unfair) and also can't use the only other mechanism we have, plea bargaining (which you see as having the same (or worse) disqualifying evils). You admit that you have no third system to offer.

To say the obvious, this leaves us with nothing. So criminals won't be brought to justice.

I am sincere in saying that I appreciate your candor on this question.

Posted by: Bill Otis | Oct 7, 2022 11:05:37 AM

Doug --

"Should I be expecting you to honor and follow Miranda soon?"

Since I'm neither a policeman nor a prosecutor, how would I "follow" Miranda?

"Souter and Ginsburg were on board with the Apprendi Sixth A jurisprudence, suggesting they quickly realized Watts is a constitutional blemish..."

I always knew you were a better man than Donald Trump, and now you've proved it. Trump only thinks he can declassify documents through telepathy, but you can use those same telepathic powers to divine that TWO Supreme Court justices thought they MESSED IT UP and voted the wrong way! Even though neither one ever said so!!

Far out.

Posted by: Bill Otis | Oct 7, 2022 11:48:54 AM

TarlsQtr --

"I typed the above from the corner, as you didn’t say I had to be without my phone. :-)"

Yes, well, at my age I forget things. But you should be ashamed of yourself for exploiting the weaknesses of those in their Golden Years. I'll let you out of the corner in Hawaii, but only if you bring a certain young person.

Posted by: Bill Otis | Oct 7, 2022 12:50:36 PM

Bill, I was parroting your statement that it is "wise to continue to honor and follow [a] longstanding rule," and yet you do not show that "wisdom" with respect to Miranda. And, of course, the real "longstanding rule" is what is written in Article III: "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury." (The Sixth Amendment also references the jury trial right in terms of "all criminal prosecutions" and "the crime.")

The sensible way to read the actual text of the Constitution is that, if/when the state seeks to prosecute and punish "crimes," and the accused contests the facts of his alleged criminal conduct, then matters concerning criminal conduct are to be resolved by a jury trial and not by a judge at sentencing. Notably, the text does not say all of the defendants' alleged good (or bad) character "shall" be resolved by a jury trial. What you want to call a "fancy-dance" to distinguish the state's allegations of illegal conduct ("crimes") from the defendant's assertion of personal mitigation is drawn directly from, and is most faithful to, the text of our Constitution.

But you often do not seem to care much about the actual text of the Constitution if that text, as you put it, is "favorable to criminals." I always find it telling how little you care about the Constitution's text in this context since it expressly sets forth numerous rights for criminal defendants. And now I am having fun imaging Washington and Madison and Hamilton --- who were true "veritable geniuses" --- engaged in all sorts of "fancy dancing" as they wrote Article III and the Sixth Amendment.

You also seem to be showing a touch of senility, Bill, as you suggest I am "all for stare decisis in ... Miranda" even though I have said repeatedly that I think Miranda is a problematic decision and I would favor a more textualist approach to the Fifth and Sixth Amendment. If you do not actually care about --- or cannot remember --- what I actually say in response to your prior comments, it may be wise for me to just stop bothering to respond to your comments.

Posted by: Doug B. | Oct 7, 2022 12:52:54 PM

Mr. Otis: "I asked you how we should bring criminals to justice if we can't use trials (which you condemn as grossly and structurally unfair) ...." No. I have repeatedly, in this thread, say that I support fair trials. Trials from which methods that tend to convict the innocent are banned. Trials in which an innocent person, even if they don't have a fortune for an OJ-class defense, are very unlikely to be convicted. Please stop misrepresenting what I and others here have said. Everyone can read it for themselves, so you're only making yourself look bad.

Posted by: Keith Lynch | Oct 8, 2022 12:31:29 AM

Keith,

What a useless answer. “Fair trials?” You may want to put a little flesh on those bones. 😂

Posted by: TarlsQtr | Oct 8, 2022 12:43:00 AM

TarlsQtr: "What a useless answer. 'Fair trials?' You may want to put
a little flesh on those bones." Sigh. I already did, twice, earlier
in this thread. I'll so once more, with even more detail:

All of the following applies to all criminal trials, federal, state,
municipal, and military in the US or under US control (e.g. at
Guantanamo Bay).

Plea bargains should be abolished. Every accused person gets a trial,
whether he wants one or not.

Police and prosecutors shouldn't be allowed to lie to, threaten, or
make false promises to suspects, witnesses, or anyone else. Not
during an interrogation, not in court, not anywhere.

Prosecutors shouldn't be allowed to promise leniency to anyone for
testifying against others, to threaten perjury or other charges
against would-be defense witnesses, or to threaten to charge a
defendant's family members if the defendant doesn't plead guilty.

Police and prosecutors should be bound by the exact same criminal and
civil laws as the rest of us. No more immunity of any kind. They
should also be protected by the exact same Bill of Rights as the rest
of us. No more special Law Enforcement Officer Bill of Rights (LEOBOR).

Killer cops should get the exact same punishments as cop killers.
All interrogations should be recorded in their entirety, audio and
video, and the recordings made available to the defense.

Nobody under 21 should be interrogated without their parents or a
lawyer present.

All defendants should have at least as much money spent on their
defense as on their prosecution.

All judges in criminal trials and criminal appeals should have worked
for at least five years as both defense attorneys and as prosecutors,
and not more than twice as many years as one as the other.

All expert witnesses, forensic scientists, and forensic technicians
are to be regularly and secretly tested. For instance if someone
claims the ability to tell which guns fired which bullets, create some
known samples and give them to the experts without telling them it's
a test rather than a real case.

Never give forensic scientists or technicians irrelevant information
that could lead to bias, or tell what result the prosecution or
defense want them to conclude.

The prosecution must share *all* evidence with the defense, whether or
not they think it's exculpatory, relevant, or credible. Let the judge
and jury decide.

Judges should inform every jury in which there's police testimony that
police are notorious for lying under oath.

Judges should inform every jury in which there's eyewitness testimony
by someone who didn't know the defendant that such eyewitnesses are
very unreliable. (Currently the defense has to hire Elizabeth Loftus
to testify on the subject, and she is not a cheap date. And she's
77; what happens when she's gone?)

Suspend the death penalty until 20 years have gone by in which nobody
in the US (state, federal, or military) has been falsely convicted of
a felony.

Recognize that "recovered memory" is not a thing, unlike implanted
false memories, and as such should never be admitted as evidence.
And statutes of limitations that were extended in case a child might
suddenly "remember" that you abused her half a century ago should be
restored to their former durations.

Allow every convict to appeal every five years, at government expense,
in perpetuity. Every conclusion is always subject to re-examination,
just like in science. When Einstein came along, nobody told him that
we must have finality so he's not allowed to challenge Newton's
conclusions.

If someone is acquitted of a charge, he's legally as innocent of that
charge as the judge is, so the charge can never be used against him in
any context whatsoever.

Once someone has completed his sentence he has paid his debt to
society, so all his rights should be restored, and that conviction
can never again be used against him in any context whatsoever. If
not immediately, then at least after seven years have passed since
he completed his sentence and hasn't been convicted of anything else.
Or after however many years recidivism rates drop to those of people
the same age who had never been convicted of anything.

Nobody can be held after the end of his sentence, even if an "expert"
can be found willing to testify that he's still dangerous.

A new unbiased federal agency, analogous to the NTSB, should be
created to investigate every state, federal, and military trial in
which someone later proven to be innocent had been convicted, and
to mandate changes which would prevent a repeat of the disaster.
In service of this, all trials should be recorded, audio and video,
just as all planes are equipped with black boxes.

Yes, the above will be expensive. I expect that the extra tax revenue
from people who would otherwise have been falsely convicted would more
than pay for it, as would the savings from prisons that don't need to
be built or staffed. Also, all victimless crimes should be legalized
so that the system can focus on real crimes with real victims. This
would also lower the crime rate; why would anyone be deterred from,
for instance, bank robbery if he figures that his odds of being
convicted of it are about them same whether he does it or not?

The goal should be to ensure that convictions depend only on the
defendant's guilt of what he's accused of, not on his wealth, race,
gender, or age, or on other crimes he may have been accused of or
convicted of, or on whether he disrespected a cop.

Posted by: Keith Lynch | Oct 8, 2022 2:25:28 PM

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