How can we make the American criminal justice system more just?
Jrustice means, first and foremost, ensuring that defendants are not onvicted of crimes they did not commit. The criminal justice system's woi-st nightmare is the wrongful conviction of an innocent person. It's an equal-opportunity nightmare that leaves the true criminal unpunished, and torments all - police, prosecutors, defense attorneys, judges, jurors, defendants, and victims - who care about justice.
Since 1989 DNA testing has helped exonerate at least 269 people, according to the Innocence Project. Hundreds more have been exonerated even without DNA evidence. We can no longer pretend that guilty verdicts are infallible.
In several states, important steps already have been taken to reduce the risk of wrongful convictions. In Illinois, for example, shocking revelations about innocent men on death row led first to a moratorium On executions, and eventually to the abolition of capital punishment altogether. Along the way, the Illinois legislature adopted procedural reforms to help prevent wrongful convictions, including the exclusion of unreliable "snitch" testimony in capital cases and mandatory recording of all homicide confessions,
Yet the criminal justice system, in Illinois and elsewhere, remains vulnerable to wrongful convictions. And this vulnerability will persist until America finally lives up to the noble ideals of justice expressed in the landmark 1963 Supreme Court case of Gideon v. Wainwright. As we approach the 5OtIi anniversary of Gideon, the unfortunate reality is that too many criminal defendants are represented by lawyers who are inexperienced and overworked, and who lack the resources to investigate innocence claims.
The tinfulfilled promise of Gideon also undermines the cause of justice in a broader sense, by making it much less likely that the constitutional and civil rights of all criminal defendants - whether guilty or not guilty - will be respected.
State and federal courts routinely review criminal cases, after the fact, in an attempt to determine whether the constitutional standard of effective counsel has been satisfied. But this effort comes too little, too late. Even if the quality of defense representation is suspect or worse, a reviewing court cannot set aside a guilty verdict unless it is reasonably probable that effective lawyering would have succeeded in producing a different outcome. Such a conclusion is often impossible to reach, either because the defendant was probably guilty, or because the relevant evidence of innocence was never developed below.
That is why the problem of inadequate defense representation must be attacked at the front end of the criminal justice system, not at the back end. There is much we can do as a society to ensure that all defendants receive the effective assistance of counsel guaranteed to them by the U.S. Constitution.
The most important step would be to create a new Federal Center for Public Defense Services to encourage the states to reform defense representation through incentive grants, research, training, and "best practices" standards. The American Bar Association began advocating for such a Federal Center back in 19*79. In today's recession economy, finding the money to start up a new federal program will be difficult. It might be necessary to start small and build momentum gradually. Nevertheless, it is high time to implement …