Bringing back advocacy to the criminal justice system

Below is an excerpt of remarks by Stephen Bright, President of the Southern Center for Human Rights at the Aspen Ideas Festival, reported by The Atlantic:

We've taken power from judges and given it to prosecutors, who now decide, with their charging decisions and whether they file repeat-offender papers and all sorts of other things, how long a person is going to serve. So they decide the sentence. The judge is relegated to being a clerk at the end of the process. He signs off on whatever the sentence is. That's got to be shifted back in the other direction, because the prosecutor is an advocate. We theoretically have an adversary system. The worst system is one that masquerades as an adversary system and is not one.

And in many places, people do not receive any real kind of legal representation. If we are going to say this is an adversarial system where we have prosecutors striking hard blows and trying to lock people up or do whatever, you have to have defense lawyers representing those people. First of all, are we even locking up the right people, because we keep letting out people who didn't do what they were convicted of.

And what about the life and background of that person? When it comes to diversion programs, the prosecutor doesn't go interview the defendant, the defense lawyer does that, and then does a social history workup of who is this person? See my article on Sentence Advocacy. This woman, yes, she wrote a fake prescription to get drugs. But she's got a kid with down syndrome. And that's one of three children that she's trying to raise at 25 years of age. So do we really want to put her in the prison system in Georgia for three years?

Or is there another way to deal with this?

And if she's not represented, the prosecutor and the judge will never know about that child. I've twice been called by the department of criminal justice saying we've got people here with IQs of 45, these kids are walking victims, and they're about to be moved into the adult system, and if somebody doesn't do something...

In both of those cases, lawyers plead them guilty and didn't even spend enough time with them to realize they were severely disabled. There are public defenders’ offices that are hopelessly overburdened. And we have places like Alabama where you appoint anybody with a bar card and a pulse and they represent you. The way to make money at that is to move as many people through the system as fast as you can.

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