Question 5: Reforming the Penal System – Elgin Hushbeck

Link to Question #5
Link to Joel Watts’ Answer to Question 5
Link to the previous entry (The President – A Debate)
What would you do to reform the U.S. Justice and Penal System?
When it comes to the legal system, given its current condition I cannot really call it a justice system,  one thing that I hope all would agree with, is that it is broken and in desperate need of repair.  It has many parts from the criminal and civil courts to the penal system.  None work well.
The courts are important because at the core of our country is the rule of law, and this core is seriously threatened.  The rule of law has many components but at its heart is the idea that we have a government of laws, not the arbitrary decisions of a ruler.  Yet the law has become such a complexity of vaguely written laws that in many respects the arbitrary rule of a king has been replaced by the seemingly arbitrary rule of judges, or the whim of a jury.
Given all the problems, the search here is not so much to find the best system, but to find the least bad one.  To do this we must seek a system that is grounded in justice both for the accused and for the victim, for the lowliest person and the largest corporation.
When it comes to civil cases, the biggest problems are the costs and time involved. Many people know of companies and individuals who have settled a suit even when they firmly believed that they were correct, because going to court and winning would have cost more than to settle.
One option would be to institute some sort a loser pays rule, where the losers have to pay some or all of the other side’s legal bills. This would certainly end most suits whose primary focus is to delay and/or harass.   However it would also end a number of very legitimate suits where the outcome is in real doubt.  So perhaps some sliding scale could be applied from 0-100% that would take into account the merits of the suit.
Unlike criminal suits that require evidence beyond a reasonable doubt, civil suits are settled on a preponderance of the evidence basis, i.e. whichever side has the most evidence in their favor. So perhaps a scale that takes into account the relative merits of the case, and the number of suits filed in the past.  For a person that brings a suit where the evidence was very closely matched on both sides and this is the first suit they ever brought, no costs would be awarded.  For a case that was brought on flimsy grounds, and the person had filed lots of suits in the past, 100% of the costs would be awarded.
As for lawyers who are paid by a percentage of the award, that should be capped, particularly in cases of class actions.  I cite examples in my book of cases like the Netflix case were the lawyers were paid millions, and supposed “victims” got some free rentals.
When it comes to criminal cases, while it would take a constitutional amendment, one thing I think should be given serious consideration is professional jurors.   The current jury system is badly broken. Sure, most people take their obligation very seriously, but far too much depends on the ability of the lawyer.  Just ask yourself this question:  If you are falsely accused of a crime, do you really trust 12 people picked from the jury pool to determine your fate?
This cuts both ways, from those who give the benefit of the doubt to the prosecutor and assume the accused must be guilty, to those who assume the accused must be innocent because they did not have CSI style evidence.   Then there is the question of what is beyond unreasonable doubt to those who are fundamentally irrational?  After all, even the wackiest of ideas has 10% who will believe, but it takes only 8.3% to hang a jury.
I would also say that there should be a different penalty mechanism for evidence obtained illegally.  Currently evidence obtained illegally is excluded. Why? The purpose of a trial is not to make sure the guilty has sporting chance to get away.  It should be to ascertain whether or not a person is guilty.  If a person is set free because evidence obtained illegally was excluded, then where is the justice for the victim?
Finally there is the general issue of the interaction with government. We would (hopefully) complain if someone from the government could just fine someone several thousand dollars without benefit of a trial. But what is the difference if they can essentially force the same person to spend several thousand on a lawyer to protect yourself from a baseless charge?
This just happened to an acquaintance of mine. Two people from government saw no problem, but for some reasons a third did, and went after them with a vengeance, even calling them at 2:30 AM.  When they did get before a judge he ruled that there was no basis for the complaint, but gave the government 30 days to see if they could come up with anything else.  So much for innocent until proven guilty! But then why not? There is no impact on the judge or on the government bureaucrat for an additional 30 days.  But this effectively means another 30 days of harassment and additional lawyer’s bills, all of which is putting a tremendous strain on him and his family.
Finally there is the penal system.  This is a very complex and difficult issue.   One factor is that given the problems with the courts there is a sort of game here where most people have pleaded down to lesser charges so both sides could avoid a trial.   This makes things like separating violent criminals from non-violent ones more difficult.  Is a person who committed a violent crime but who pleaded down to a non-violent offense a violent criminal?  But this is certainly a place where we could use some innovative approaches and Chuck Colson’s Prison Fellowship would be a great place to start.
 

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