Toward a 'More Just' Justice System

October 4 2015 Editorial by the San Diego Union Tribune commented on Gov Jerry Brown's veto messages written on a series of bills that proposed to create new crimes. 

The editorial said that possibly the article written by Alex Kozinski concerning the unfairness of our justice system may have been one of the reasons for his vetoes.

Kozinski was the Chief Justice of the 9th Circuit Court of Appeals and his "Criminal Law 2.0" article in the Georgetown Law Review pointed out the serious flaws in our US system of justice and made a series of recommendations.

I believe I agree with Kozinski's findings and recommendations.  While I have not been in any courts other than a few times on jury duty, I do recognize from the news all of the many injustices that take place.  Prosecutors seem to be anxious to "win at any cost" which gives them a built-in conflict of interest when it comes to justice.  

The US really does need to figure out why we have more people in prison than any other country of the world both by percentage and by total numbers.  Our laws need to narrow down the scope to focus on crimes that actually affect us.  For example, it seems that far too much emphasis is placed upon crimes that occur among consenting adults that incur minimum of harm to others -- obviously drugs, gambling and prostitution.  All of them could easily be regulated, controlled and taxed and it would much better protect the sellers, and buyers.  In the name of protecting the public from these "vices" the Government has then justified defining many more crimes to include RICO, anti gang laws, money laundering laws, restrictions on buying/selling of chemicals that could be used for making or refining drugs, human trafficking (which would be reduced or eliminated if prostitution were legalized), 

The problems created by "illegal gambling" were significantly reduced when legal casinos were built throughout the country.  Now it is a very minor problem.  When prohibition ended, the problems of illegal alcohol almost went completely away.  Yes, we still have problem with DUIs which is a difficult situation for society.  However I believe the "self driving cars" on the horizon will start to resolve that problem long before our justice system will be revised.  

That leaves illegal recreational drugs and prostitution as the only remaining issues that seem to contribute to a very high percentage of our prison population. According to drugwarfacts.org website around 50% of the inmates in the US are there for some sort of drug violation.  These statistics appear to be related to direct drug offenses, and not "secondary" drug offenses.  For example, people could be arrested for gun offenses, or other violent crimes that were a result of disagreements related to drugs.  People could be arrested for money laundering, which could be due to moving drug money.  Gang related arrests and convictions are related to illegal drugs, because so much of a gangs power and finances seem to revolve around marketing of illegal drugs.  I think if all of those causes were included in the statistics, the percentage of drug-related inmates would be much higher.

U.S. judges see 'epidemic' of prosecutorial misconduct in state - LA Times

February 1st 2015 Sunday LA Times had an article by Maura Dolan about a Federal Court of appeals citing misconduct by prosecutors:  U.S. judges see 'epidemic' of prosecutorial misconduct in state - LA Times
I think this was an important event.  Deputy Attorney General Kevin R. Vienna wanted the three-judge panel of the U.S. 9th Circuit Court to "rubber stamp" a murder conviction of Johnny Baca when there had already been significant evidence that the prosecutors in the case had presented false evidence in the original trial --and the prosecutors knew about  it!  The article quotes the three judges on the court of appeals: Judge Alex Kozinski, Judge Kim Wardlaw, and Judge William Fletcher.  They also pressed the Deputy Attorney General to make sure that his boss, Kamala Harris, was aware of the situation.  Apparently Harris was not aware, and stopped Vienna.  Probably a smart move, since Harris is one of the leading candidates for US Senator, or Governor and probably doesn't want to be involved in such a scandal.

Maura Dolan, in her article,  described an "epidemic" of prosecutorial misconduct, with no discipline against the prosecutors.

Yes, I understand that our Police and Prosecutors have a very difficult job, with seemingly too many arcane rules about how they do their job.  However it is clear that there are many cases where police and prosecutors violate the law and get away with it.  That has an effect of "poisoning" the jury pool.  If we, as jurors, can't trust the police and prosecutors to tell the truth, how can we make a good decision?  All it takes is a few "bad apples" to provide citizens with a little bit of "reasonable doubt" that will let a criminal get off.

I've only served as a juror about 4 times in my life.  As a juror, we understand that we are making a decision based upon incomplete data.  So we have to evaluate the veracity of the witnesses for the prosecution and the defense. We also understand that if, for any reason, it turns out that additional information or evidence is discovered AFTER we make our decision, that if we found a defendant guilty, that the decision can be corrected after the fact.  There have been MANY situations where new evidence has been discovered years, or even decades after a person was found guilty, that clearly shows that the defendant was, in fact, innocent.  In almost all of these situations, I'm astounded that the prosecutors and judges who were involved in the original conviction seem to do everything they can to prevent the overturn of the decision.  They also seem to try to delay any decision--they seem to want their erroneous decision to not be overturned, rather than correct the situation and allow justice to occur.  What is wrong with them?

I believe that prosecutors think of their job as a game rather than an important role in achieving justice.  They don't want to "lose" a battle, even if they know that it would result in fairness to everyone.  When they have either been negligent or intentionally violated the law, they know that there is no recourse. They won't lose their license, won't be fined, and will not be sent to prison.  Somehow there needs to be a way that these VERY high paid government employees can be forced to have some "skin in the game" -- so that if they, in fact, lie, cheat or in some other way cause someone to go to prison who doesn't belong, that they will be also given an equivalent punishment for such misconduct.  Not a "mistake" -- but a situation where the police or prosecutors know that vital evidence is being withheld to strengthen their case.