Saturday, July 12, 2008

What If We Federalized The Entire Criminal Justice System?

It's heartwarming to know that when you have a blog and stop writing for a while, you get treated as if you haven't called your mother, and she's worried you may not be eating, or dead.

Since I've been observing and not blogging, some significant things have happened.

On the federal side, Guantanamo detainess now have the right to contest their detention in federal court. Most people have never been to federal court, where contesting detention these days of any defendant is a long shot, but cue the fear mongering war on terrorism types who claim that this of course means they will all be released into the streets of America and we should all be afraid, very afraid.

On the state side, budget cuts are causing public defender's offices to cut staff and refuse to take cases. Judges are screaming about the lack of court funding, caused by legislators who believe a properly funded judiciary is somehow a "bad" thing.

Escaping any criticism are the district attorney's offices, who refuse to prioritize the prosecution of cases.

Hence, my question whether we should consider federalizing the entire system.

Now, I practice state and federal defense, and I know the first response is "OH NO, not the feds!"

But wait.

Federal judges and the United States Attorneys are appointed. State judges and district attorneys are elected. When's the last time you saw a victims rights group on the steps of a federal courthouse?

Now I have no issue with crime victims. I do take issue with the new way of prosecuting state cases of: 1. arrest, 2. file charges, 3. find out what the "victim wants," 4. Offer that.

The fear of state prosecutors and judges over what the victim will do if they don't get what they want is often paramount to what should "really" happen to the defendant and the case. Restitution has been dumped into state criminal courtrooms as if they are bill collection courts.

Not in federal court.

Yes restitution is mandatory in federal cases, and victims are consulted, but they don't run the place nor does the media. You can't vote out federal judges or prosecutors.

Additionally, the feds prioritize what they prosecute, states and counties don't. A recent comment from a district attorney is proof. In response to severe budget cuts I read "unfortunately, we're not going to be able to prosecute every case."

You mean every fight between two people? Every DUI where the defendant had a breath alcohol level below the legal limit? Every first time offender who deserves a break? Every child abuse allegation and domestic violence violation where there is a pending divorce and it's clear the allegations are "suspect."

Anyone walk into a misdemeanor courtroom lately? Or watch a felony prosecutor struggling with a case because she knows what should happen, as opposed to what the victim wants?

Victim's have taken over the system in state court. And before all you victim's advocates start typing, I'm not talking about murder, robbery, rape, and sexual battery. I'm talking about that grand theft case where your car was stolen, and you want the death penalty. The mantra of "criminal's have more rights than victims" has turned the tables on how our state system runs, and we don't have the money to do what every victim wants in every single case.

But we won't stop acting that way.

Think about it, what if the feds took over?

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit