Canadian Mark Steyn’s experience in blogging the Conrad Black trial gives him an interesting perspective in proposing several common sense reforms for the federal criminal justice system, most of which have been addressed in this blog over the years:
1) An end to the near universal reliance on plea bargains, a feature unknown to most other countries in the Common Law tradition. [. . .]
2) An end to the reliance on technical charges such as “mail fraud” and “wire fraud”, whereby you’re convicted not for the crime itself but for sending a letter or authorizing a bank transfer in the course of said crime. [. . .]
3) An end to the process advantages American prosecutors have accumulated over the years – such as the ability to seize a defendant’s funds and assets and deprive him of the means to hire good lawyers and rebut the charges. Or to take another example: Unlike the Crown in Commonwealth countries, in closing arguments to the jury the US government gets to go first and – after a response from the defence – last. This is an offence against the presumptions of English law: The prosecutor makes his accusation, the accused answers them. Every civilized legal system allows the defendant the last word.
4) An end to countless counts. In this case, Conrad Black was charged originally with 14 crimes. That tends, through sheer weight of numbers, to favour a conviction on some counts and acquittal on others as being a kind of “moderate” “considered” “judicious” “compromise” that reasonable persons can all agree on. [. . .]
5) An end to statute creep. One of the ugliest features of American justice is the way that laws designed to address very particular situations are allowed to metastasize and be applied to anything a prosecutor fancies. The RICO statute was supposed to be for mobsters and racketeers. Conrad Black is not a racketeer but he was nevertheless charged with racketeering. [. . .]
6) An end to de facto double jeopardy. Conrad Black is likely to wind up back in court to go through all the stuff he’s been acquitted of one mo’ time, this time in a Securities and Exchange Commission case. That would be a civil case, not a criminal one, and the US Attorney insists that the SEC is an entirely separate body. Oh, come on. The US Attorney and the SEC are both agencies of the US Government. They work in synchronicity. It’s not the same as Nicole Brown’s family suing OJ after the state’s murder case flopped. In this instance, two arms of the same organization are bringing separate cases on exactly the same matters. That’s double jeopardy – or, in fact, given the zealousness of the SEC, triple and quadruple jeopardy.
Steyn expands on these points, so read the entire post. And here is another proposed reform that should be added to the list.
Tom K. —
Thank you for this post — this is the kind of information that really needs to be discussed. Complaints about the criminal justice system are much more effective when they are accompanied by concrete recommendations for improvement. The abuse can only be corrected by pushing changes that are specific and (hopefully) actionable.
I agree with all the items on Steyn’s list, and I can think of several more. Here are just a couple additions:
1) An end to the prosecutor’s essentially unlimited ability to name potential witnesses as “unindicted co-conspirators” at the prosecutor’s sole discretion. Prosecutors use this as a way to sneak hearsay “evidence” into the trial, and, sadly, as an intimidation tactic to frighten potential witnesses from testifying for the defendant.
2) An overhaul of the definition of “conspiracy”. The current definition reads like a science fiction novel. It is so broad and vague that it has become a “catch-all” count that the prosecutor casually attaches to his “countless counts” list, yet seldom actually seems to address at trial.