Monday, December 08, 2008

Scrap The Entire System

As budget cuts loomed this year, my elected State Attorney reported to the media the following statement:

"We won't be able to prosecute every case."

My thought: "Right. Who ever said you should?"

Then I remembered: victims, surburban authors of letters-to-the-editor, and niche groups whose agenda it is to convince the public that defendants are running out of courthouses instead of into the jails at an alarming rate.

On Friday I watched a young girl, first-time offender, arraigned on a non-violent felony offense.

No plea offer.

Why?

"The victim wants the max, 5 years," said the prosecutor. Refreshingly, the judge, senior prosecutor in the courtroom, and I, chuckled.

Then I saw this: A 65 year old woman, 9 blocks from my house was tied up and robbed in her house by 2 men who saw her gardening in the middle of the day.

I immediately wondered which police officer was forced off his perch behind a tree to put down his radar gun and rush to the scene. Or was it the one who was harassing the poor black guy drinking in front of the 7-11?

Our priorities when it comes to criminal justice don't exist anymore. Arrest everyone. Prosecute everyone. Jail everyone. Let the victims run the system.

My suggestions:

[1] End the death penalty.

(In Kerry-esque form, I was for the death penalty before I was against it.) I've done the research, unlike many out there who are for it because, well, because. And no, I haven't had a family member killed, and while I may feel different if that happened, that's one of the reasons I am against it.

[2] End all minimum mandatory sentences.

Minimum mandatory sentences were created by and for one reason: Republican distrust of judges. It's just like managed healthcare where insurance companies control the decision whether and how to treat a patient. Return discretion to judges and prosecutors.

Legislators, most of who haven't entered a criminal courtroom in years, if at all, are mostly pandering to the public and covering by using the "its what the public wants" line. Most people don't want a first time non-violent drug offender imprisoned for 15 or 30 years. At least those that live in homes with lights and running water.

[3] Treat the victim as the victim, not the prosecutor.

What the victim "wants?" The victim may "want" to bring a gun to the courtroom and shoot the defendant.

We've moved so far towards Mob Rule that its unclear today whether the prosecutors (those that throw their discretion to the victim) are solely determing whether they can prove the case beyond a reasonable doubt and if so, what a reasonable sentence is, or if they are required to simply assist the victim's interest in jail, jail, jail. Victims are victims, prosecutors are prosecutors, and judges are judges. Is that so hard to understand?

[4] Remove Rule 404(b) from the Evidence Code.

Rule 404(b) allows prosecutors to introduce "prior bad acts" to help prove their case. I say if you can't prove this defendant committed this crime without prejudicing the jury with his prior bad acts, the case should not be prosecuted.

[5] Decriminalize most misdemeanors.

Selling flowers without a license, not wearing glasses while driving, drinking in public, possession of a shopping cart (don't believe that one? - Any person who removes a shopping cart from the premises of the owner,or is in the possession of any shopping cart,shall be presumed to be in possession of stolen property
and is guilty of a misdemeanor of the first degree,punishable by a term of imprisonment of up to one (1) year as provided by Sections 506.509 and 506.513 of the Florida Statutes.


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Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

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