Entering the Calculation

Slate has run an interview with law professor John Pfaff, who suggests that, contrary to popular belief, America’s mass incarceration problem is not a result of the war on drugs or longer prison sentences. Instead, he posits that it’s the result of prosecutors charging more felonies than they used to. [According to Pfaff, between the years 1994 to 2008, the probability that a district attorney would file a felony charge increased from 1 in 3, to 2 in 3.] Pfaff doesn’t know the reason for the increase, nor does he know how to combat it. This brings up some interesting questions.

First, why are prosecutors charging more cases these days? Well, why not? With a national plea rate in excess of 90%, it’s painless. It makes good political sense to indict 2 in 3 cases if you know that they’re both likely to plead. That way you can be “tough on crime” and lazy at the same time.

Second, how do we discourage prosecutors from bringing too many charges?  It seems to me that taking more cases to trial would help. If prosecutors expect the cases that they indict to be tried instead of pled, they’re much less likely to pursue weak cases or cases with unserious charges. This will have the laudatory effect of both minimizing the risk of innocent people going to prison, as well as making sure that our prisons only hold people who really need to be there.

Of course, legislatures can help with this by jettisoning the draconian drug sentences that exist in this country, and replacing them with sentences that are reasonable. After all, it’s longer sentences that compel defendants, even in cases where the evidence against them is weak, to plead guilty. If, however, the sentences were such that going to trial were more frequently worth the risk, more trials would happen, forcing prosecutors to prioritize. That would get the charging rate back down to 1 in 3 pretty quickly, I bet. And maybe it won’t even be that much longer before the United States no longer has the largest prison population in the world.


The Prison Problem (David Brooks, 29 Sept. 2015)

An Antidote To Unjust Laws

Jury nullification occurs when a jury decides to ignore the law. Why would anyone ever want a jury to do that? Well, there are a lot of unjust laws out there. What is an unjust law? According to Martin Luther King Jr. [pdf], “an unjust law is a human law that is not rooted in eternal and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust.”

Even though Justice Scalia probably sighs loudly whenever someone utters the phrase “natural law,” I’m going to talk about it anyway. The fact is that some pretty bright and historically significant people have relied upon natural law. Martin Luther King was one of them. Thomas Jefferson was another.

What I would expect any judge to be even more uncomfortable with than allowing natural law arguments in courtrooms, is continuing the practice of not allowing them, as that seems to infringe upon one of the central principles of a defendant’s right to due process: the right to be heard.

The most sacred of interests, a person’s liberty and reputation, are at stake in criminal trials. As such, we must be certain that all possible arguments in favor of the preservation of each are allowed. If we do not empower jurors to at least consider the merits of a law which, at least in theory, they have already approved, then we engage in an exercise that is little more than a show trial. This may go a long way toward satisfying our desire for expeditious process, but it must go a very little way toward satisfying our demand for justice. It is not enough to merely apply the law. We must also inquire into the law’s morality. Dred Scott, let us never forget, was once the law.

When we consider that the United States “has less than 5 percent of the world’s population, [yet] has almost a quarter of the world’s prisoners,” how can we deny that many of our criminal laws remain deserving of whatever scrutiny is available? Such a prison population represents a failure of democratic government and the jury trial, which is perhaps one of the purest forms of democracy devised, is a way to fix it. By preventing arguments on nullification, however, the courts do not allow for meaningful trials. Instead, they are content to send millions to prison who may be factually guilty, but morally innocent. That is shameful.

[For a more scholarly and academically supported argument on this issue, please see this pdf.]



Jury Convicts Ex-Pastor Who Shared Jury Nullification Fliers

Last Statements

It’s not the end, it’s only the beginning. And Dad, I’m coming home.

I don’t want nobody to be bitterTe quiero mucho.

Just so you know, I am an innocent man. But, I hold no grudges. In fact, I would like to tell Mr. Richard I appreciate all he has done for me. I love you sis.

I’m sorry for the victim’s family. I wish I could make it up to them. The truth is, I did not know the man but for a few seconds before I shot him. He deserved better.

This stuff stings, man almighty. Then again, I can feel it, taste it, not bad.

Texas Rangers, Texas RangersI am a miracle. One more thing, Viva Mexico.

Everyone changes, right? No cases are error free.

I am disappointed by the courts. But that’s O.K. I just played the hand that life dealt me.

You should continue with criminal law. It’s your decision; they need lawyers out there that will fight. Also, thank you for your hospitality.

I have no hate toward humanity. I deserve what I am getting.

Where’s my stunt double? I am not as strong as I thought I was going to be. Bye bye peanutTo the moon and back.

Today is a good day to die. There’s really nothing more to say.


[Inspired by this project.]