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This Slate article suggests that prosecutor Mike Nifong’s unethical actions in the Duke Lacrosse case might not be that unusual among prosecutors. The article argues that the only reason Nifong’s unethical behavior was uncovered was because the Duke case generated an extraordinary amount of scrutiny.
I propose that we randomly select a few criminal cases for intensive review. The review would give us an indication of how honest prosecutors are and would provide some deterrence against unethical prosecutorial conduct.
Over 90% of criminal cases settle through plea bargaining. These cases never reach trial. So, as the Slate article points out, any prosecutorial misconduct that might have occurred in these cases would almost certainly go undetected. For my proposal to succeed plea bargained cases would have to be eligible for random intensive review.
Ideally, at least one person participating in the review would have subpoena power. But if the government was unwilling to go along with my random review idea, private organizations could conduct it by themselves. Each year, for example, law schools could randomly select, say, 30 criminal cases that were concluded in the past year. These schools could then have their students investigate every aspect of the case to determine if justice was done.
Randomly Review Criminal Cases
I have the perfect case and would like to know what organization would help with a review of the case.
Criminal justice outcomes are a function of both prosecutorial and judicial discretion, and the recent trend in the US has been to increase the former at the expense of the latter. Penalties are higher than they have ever been and as a result, fewer cases are going to trial than ever before. In the rare case where a COURT actually decides the outcome of a case, that decision is reviewable on appeal, subject to public scrutiny and, in recent years, increasingly constrained by sentencing guidelines and mandatory minimum sentences. There are reasons to believe that judges and juries might be better decisionmakers than prosecutors, but Americans vote and legislate as if they trust the prosecutors much more. 90% of cases are resolved through prosecutorial plea bargain, induced under threat of draconian punishment. The supposed 'right to trial' in the US is, for most criminal defendants, pure window dressing.
Of course, this is not to say that everyone is convicted. Indeed, the modern administration of the Fourth Amendment may actually upped the ante for 'actually innocent' defendants by making convictions of 'actually guilty' defendants more difficult to obtain. Heightened penalties and fewer trials are the hidden cost of the uncertainty that the Exclusionary Rule has brought to the game. Prosecutors jaded by defendants who walk 'on a technicality' are less inclined to listen to the actually innocent. For BOTH sides, this game is much more unpredictable, and the stakes are much higher than they once were.
It is this uncertainty, more than anything else, that give wealthy defendants such an advantage in the modern criminal justice system. Egalitarians tend to be vocal advocates for the Fourth Amendment, but I would argue that its impact is a regressive burden on the poor. For the average petty urban street criminal, a system with less Fourth Amendment protection (and more lenience) might end up being a better deal in the long run.