[This is a really long post. Here’s the short version: The criminal justice system is broken. See, e.g., exonerations. We need a Supreme Court justice who understands that, or it will only get worse.]
I Know My Dream Won’t Come True, But
I understand the focus on ideology and appointing Supreme Court justices from somewhere other than Harvard and Yale, but I’m more focused on a different kind of balance. Here’s my case that Obama should appoint a defense attorney, to SCOTUS:
Hundreds of American people have recently been exonerated after serving years or decades for wrongful convictions. If we’re willing to look, this shines light on problems in the criminal justice system. Recent exonerations show that some things we thought were reliable just aren’t: confessions, eyewitness memory, and forensics.
Most of us have at least one family member or friend’s kid that we can imagine arrested. Please try to picture that young man while you read this. Let’s call him “your kid” for brevity, even though he’s officially a young adult.
Your kid has some fundamental and constitutional rights designed to keep the prosecution from railroading a conviction. For example, he has a fourth amendment protection against unreasonable search and seizure. Unfortunately, SCOTUS has made this almost meaningless. Look up “stop and frisk,” “exigent circumstances,” or “civil forfeiture.”
During interrogation, law enforcement can lie to your kid. They can tell him they have evidence and witnesses they don’t have. They can pretend to be on his side. They can and will tell him it will be better for him if he confesses (which isn’t true). They can make him believe that they can prove his guilt, even if he’s innocent, which leads many innocent people to plead guilty. What would your innocent kid do if offered a deal for five years when he’s told that if he takes it to court, he’d likely get many times that sentence (which can be true)? Estimates are that 95% of criminal convictions are based on plea bargains, not trials.
Well, maybe an attorney would be helpful here. Your kid has a fifth AND sixth amendment right to an attorney, but even if that attorney is standing outside the interrogation room, she won’t see your kid unless he is “unequivocal” in his demand for one. SCOTUS says that saying, “I think I need an attorney” is not enough. Savvy criminals know this; innocent or inexperienced suspects don’t.
Justice Scalia infamously (well, among defense attorneys anyway) said that the Constitution doesn’t prohibit executing an innocent man as long as he’s had a fair trial. And by fair, SCOTUS meant that the trial met some minimal standards.
But then, SCOTUS also said that many an UNfair trial is constitutional, as long as it gets the right outcome. Your kid’s attorney can sleep through the trial or be drunk, or the prosecutor can withhold exculpatory evidence, or the judge can make the wrong calls, but the courts can (and do) say those things don’t matter because your kid was guilty (which they know based on this unfair trial).
So, a wrongful conviction doesn’t matter as long as the trial was minimally fair AND a trial that wasn’t even minimally fair doesn’t matter as long as it convicted the right guy. That’s the system these days. It’s a conviction machine. And that’s fine with SCOTUS.
And, by the way, the appeals courts don’t look at whether your kid was guilty. They are only concerned with whether the rules were followed. That’s their job. And if the rules weren’t followed but your kid’s attorney didn’t object at the precise time in the precise way or didn’t renew those objections at the critical moment, those “issues” are considered “waived” by your kid. And you can’t “take it all the way to the Supreme Court!” They don’t have to listen to your kid’s problems, and they won’t unless the case raises broadly important legal issues, which it won’t.
So, fair trial? Here are some things that SCOTUS considers fair: 1.) “snitch” testimony by someone who is in jail and hoping for a lesser sentence, who testifies to having heard your kid confess. 2.) felony murder, which is being fully guilty of the actual murder someone else committed, even if there was no plan to kill anyone and your kid had no knowledge of the weapon. 3.) A death sentence for felony murder, even if the actual killer got a lesser sentence. 4.) “Experts” whose “scientific” testimony is bunk, e.g., psychiatrists who make a living testifying that defendants they’ve never met are truly the worst of the worst and will definitely kill again if not given capital punishment. 5.) The absurdity of telling normal human beings on the jury to “disregard” inadmissible and horribly biasing evidence or statements that “somehow” got in anyway. 6.) Prosecutors using their discretion to throw the book at someone who refuses to testify against someone else. There’s more.
It’s common knowledge that being in our prisons makes people worse, not better. We give mentally ill inmates years of solitary confinement. Prison systems put up countless barriers to maintaining good relationships with family, friends, faith communities, etc., or anything that would be good for inmates – because punishment – even though the vast majority will get out one day.
Your kid won’t get parole if he shows no remorse, so if he’s innocent and refuses to lie, he’ll never get parole. A federal court recently ruled that NC’s parole system for juveniles is unconstitutional because it offers them “no meaningful opportunity” to show that they’ve matured and become good citizens. But I expect our legislature to just tweak it, and the courts will go back to locking up children for the rest of their lives, because as long as they do the minimum, that’s fine with SCOTUS. SCOTUS sets the constitutional floor.
And even if some higher court down the line discovers that, say, the prosecutor was guilty of misconduct in your kid’s case, there will be no consequences for that prosecutor, who may well be a judge by then. There are plenty of good prosecutors – we have one here – but the incentives are all wrong: the prosecutors who get more convictions get re-elected and get appointed to the bench.
And if your innocent kid gets exonerated but can’t get the governor to grant a rare “pardon of innocence,” there will be no compensation by NC for all the years spent wrongfully incarcerated.
If your kid is incarcerated for a long time, he’ll have a tough re-adjustment to the free world, and it’s not just those amusing technology advances. No one will want to hire him or rent to him, at least until he’s proved himself, which is difficult to do without a job or place to live. The stigma of being a “felon” will stay with him, no matter how hard he works to “re-enter” society well. His debt will never be paid. I wonder how this will come out.
You may think your kid will never need a defense attorney because in your family, you don’t commit crimes. If you think this, you’re probably white. Nearly thirty years ago, SCOTUS acknowledged that racism in the system is “inevitable.” And of course it is, because it exists in our communities, so it exists in our juries. SCOTUS says it’s okay to execute people under this system.
It’s not so much about the race of the defendant these days. The statistics show us over and over that the death penalty is imposed many times more often when the victim is white. As a society, we just care more about white people being killed. Death is also imposed more often when the jury is all-white. But your kid won’t be allowed to bring that evidence or other statistical evidence of racism – say, in a community or prosecutor’s office – into court here in NC.
Defense attorneys protect the constitutional rights of accused people. There is no one on the High Court who has ever been a criminal defense attorney. The criminal justice system is off the rails from start to finish, and SCOTUS needs to make justice more just. We need the defense-side perspective and voice if we’re to have any hope of a fair and reliable criminal justice system.
And BTW, I’d pick Bryan Stevenson.