Meaningful Criminal Justice Reform
By: Nancee Tomlinson
Tags: Bonds, Criminal Justice Reform, Recidivism, Reform, Criminal Justice

The U.S. Constitution along with the Bill of Rights and the 14th Amendment provide for an objective system of criminal justice. The stated presumption that the individual is innocent and should be treated as such until proven guilty is explicitly stated.

How did we get here? In 97% of cases, an accused, a defendant, enters a guilty plea. Rather than exercise the inherent right to a trial, individuals take a negotiated sentence when entering a plea of guilty. The Constitution does not even contemplate a guilty plea. The relative severity of punishments now available versus the culture of guilty pleas lures most with the siren song of lower sentence rather than a seeming gamble at trial.

Reform, what does that look like? History shows us that reform in the law does not universally translate to reform in hearts and minds. Many of the increasingly harsh punishments in the law followed the Civil Rights Act and Voting Rights Act. Because these civil rights reforms weren’t commensurately accompanied by changes in society, 2020 brings renewed and fervent demand for reform.

Repealing the “Citizen’s Arrest” statute, eliminating or modifying law enforcement’s immunity from civil and criminal liability for unjust behavior, and reforming bond statutes feature prominently in the zeitgeist right now. Each issue provides important discussion. Exclusive focus on these issues, though, misses the bigger picture: the entire criminal justice system.

From prosecutors who formally charge each warrant presented without a cursory look at the viability of the case to judges who focus on the skyrocketing numbers on their dockets rather than the individuals before them, the system has turned upside. Once arrested, the public presumes guilt. No one stops to acknowledge, including the media, that an arrest warrant issues based on the presentation of an officer to a Magistrate based on probable cause without the accused having the opportunity to speak. The comparable weight of evidence for probable cause isn’t nearly enough to create proof beyond a reasonable doubt.

The Founder’s created a system to protect the public from immediate further harm but also demanded an objective eye be turned the circumstances of the case. In the age of the plea bargain, the State, police and prosecutors, forget that step. An objective eye on whether a case can be proved beyond a reasonable doubt. Defendants, fearing the exorbitant consequences created by legislatures, resolve cases with unfavorable deals, not because they are necessarily guilty of the crime charged but because intractable prosecutors rely on intimidation and the overwhelming public fear of “bad guys” to close cases.

How do we reform that? That right there. Intractable prosecutors? Public fear?

Change how individuals are treated within the system. At present, two places exist for a defendant to be an individual with a life and circumstance beyond the pending charges: bond hearing and sentencing. While the U.S. Constitution states that no excessive bond shall be imposed, the weight of public scrutiny burdens judges. Legislatures created laws which shift the burden to the defendant on bond consideration in serious cases. In minor petty cases, bond should not be required but remains the stock and trade of courts. The influence of the criminal justice profit machine though perpetuates the fear and the myth of individuals rampaging through communities.

Honestly, the headline cases are outliers, a small but sensational percentage of people arrested have their cases make the news. Should individuals with serious violent crimes be subject to restrictions while others with lesser crimes be given a signature bond — a non-monetary bond — to return to court? That would reduce jail populations. It would also reduce the amount of money counties and municipalities shell out to feed, house, and care for inmates each day. Each day the county or city could use that money for something else. Bond considerations reflect how we treat individuals charged with a crime. Period.

The second place the system will cognize the individual rather than the abstract human is sentencing. What information mitigates, causes a judge to consider a lesser offense? Family, commitment to community, lack of criminal history, health issues, these factors and more can be considered at sentencing. When negotiating a plea deal, the factors are submitted to a prosecutor to influence the negotiation. That’s all about sentencing when negotiating a deal.

Nowhere else along the way are the specific positive aspects of the individual human factored. In trial, the facts are restricted to the case rather than the individual. Recidivism and prior convictions, for prosecutors these objective facts, become tools of combat to force pleas and harsh sentences. While the Constitution prevents double jeopardy, the criminal history of the individual outweighs any other history that might mitigate along the way. Legislatures passed the three strikes laws to enhance the punishment of repeat offenders. In drug crimes, the repeat offenses increase punishment automatically. What a person, now charged with a fourth felony may have done to reform receives no weight in the sentencing discussion. The laws tie the hand of the judges and grants greater leverage to the State than the Constitution contemplated. The recidivist laws shift burdens on to defendants. Untie the hands of judges. Give defendants the opportunity to change.

What other places would reform benefit society? What laws are needed and necessary to protect the community? What places could “crimes” be dealt with as civil/administrative or quasi-criminal?

A crime is anything the legislature defines as a crime. In some states, marijuana possession is no longer a crime. In other states, it remains a crime. In Georgia, traffic offenses are a crime. Should shoplifting be a crime? It could be considered a breach of contract. Invitation to shop in a store is accepted upon entry. It’s an unwritten contract, but a contract none-the-less. Could shoplifting be dealt with through a Magistrate Court civil proceeding rather than criminal?

What about people who violate rent-to-own contracts? Why is the state expected to prosecute violation of a contract as a crime?

Where can the criminal law be reformed? Holding the police accountable for behavior? How about enforcing the exclusionary rule proactively? The exclusionary rule permits the exclusion of evidence seized in violation of the Constitutional Rights. Why not make it mandatory? Create a registry of law enforcement who violate the Constitution. Require mandatory retraining at some trigger point. Break down the bad habits created within the system that encourage the cutting of corners by law enforcement. The idea that the person will enter a plea of guilty anyway and no one will know encourages these bad habits and/or concerted rights violations. Creating the expectation of compliance with the Constitution, and human decency, will help change the culture within policing.

I could go on. Change the burden of proof for grand juries. Get rid of the exorbitant fees on sentences, provide longer, more thorough training for law enforcement, etc.

Structural reform will change how cases are pursued from the beginning. Creating a system that respects individuals, all of the individuals in the system, including those accused of a crime, will permeate society.

Perhaps I’m dreaming, but I believe that the system can be better. We merely need to envision it and create it.