How to Fix the System


Dallas criminal-defense lawyer Robert Guest highlights the randomness of the criminal laws passed by the Texas Legislature with the Texas criminal law generator.

Houston DUI lawyer Paul Kennedy and a friendly prosecutor have a modest proposal for reform of DWI laws.

I think Paul and the prosecutor might have hit on the beginning of a solution to the problem described by Robert:

Let those most familiar with the criminal justice system write the criminal law.

What do Texas’s legislators, most of whom are nominally lawyers, know about crime in Texas? Nothing, that’s what.
Who knows more about the criminal justice system than the lawyers who practice in it every day? Nobody, that’s who.

So let the criminal defense bar and the prosecutorial bar each choose their 15 smartest people from across the state. Those 30 lawyers will go to a quiet place, and work their way through the Texas Penal Code and Code of Criminal Procedure, section by section, article by article. Any change that 20 of the 30 can agree on becomes law. If 20 of the 30 can’t agree on any change, the law remains as the lege has written it.

There aren’t many things that the panel of lawyers would agree on. My idea would not make the Texas criminal justice system perfect. It would, however, knock off a few of the rough edges, allowing the legislature to concentrate on flogging illegal aliens for possessing dildos.

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0 responses to “How to Fix the System”

  1. Cute idea. I would predict little agreement. Some people always want to overcriminalize everything.
    Ever heard of the Model Penal Code? Wonder how far it went? Anna

  2. Everyone thinks that everything would be swell if people like him were in charge, because his superior wisdom is so obvious–to himself. Hence, it makes perfect sense to criminal lawyers that the way to reform and improve the state criminal code is to have people like themselves rewrite it.

    Why this circumvention of representative government? “Because we’re smarter. We know more about criminal law than anybody else, including legislators and, heaven knows, the kind of people we summon to jury duty. We have law degrees and we have argued cases although we plea-bargain nine tenths of them. We shouldn’t have to convince the voters to elect us to office because our superior wisdom is so obvious. If they don’t trust us, that merely serves to illustrate how ignorant they are. It’s our duty to save them from themselves.”

    But, just why is it that they don’t trust you any farther than they can throw you (and they would like to throw you as far as they could)? It is not your legal knowledge they distrust, it is your moral judgement. They trust each other’s moral judgement and even that of state legislators vastly more than they trust yours. If you want to know why, ask them. And if you do, you’ll probably attribute their answers to their ignorance. A nice bit of circular reasoning: If they had any brains, they’d see why the criminal code ought to be written not by legislators elected by voters but by criminal lawyers elected by criminal lawyers.

    • That’s quite a rant, “Jack”. You’re obviously very angry and bitter, but you’ve got the wrong lawyer.

      Despite their ignorance (and the American people are, without question, dangerously ignorant), I trust the people, in the form of juries. Why? Because ignorance is not stupidity. The ignorant can be educated, and people who are educated will make the right decision. People trust me, too. My clients hire me and juries rule for my clients not because I’m smarter than them or more knowledgeable than them, but because they trust me.

      As for “moral judgment”, the criminal justice system is not about morals — thankfully, because only a moral retard would trust lawyers, politicians, preachers, CEOs, or anyone else to make moral judgments for him.

      You’ve been sold a bill. Politicians are not in the business of empowering the people; trial lawyers, however, are. You would, I hope, agree with me that juries should have wide-ranging authority in all cases as the voice of the community. That’s not the politicians’ line.

      The power of the people and the power of government are inimical to each other. The legislature has long since lost touch with the will of the people. Getting elected is all about the money now, and governing is about 1) pleasing the people who provided the money; and 2) maintaining power. Neither benefits the people.

      So government and business keep the people fat and ignorant and a little bit scared, and the people go along with what government and business want, which generally means giving up the people’s power to the government and business.

      Exhibit 1 is tort deform, which took power away from the people (civil juries) and gave it to corporations. Exhibit 2 is last session’s Penal Code rewrite, which took power away from the people (criminal juries) and gave it to government.

  3. While I disagree with the form, I think the substance of what Jackie O says has some merit. Just because we know the nuts and bolts doesn’t really mean we should actually write the laws. It would be nice if legislators consulted experts in the field about the practical effects of their legislation, but I don’t see why we should be the ones writing the laws. I still believe in representative government, however corrupted from its initial ideals it has become.

    Unfortunately here in California, the legislator seems to have actually given over much of its authority to legislate the penal code to the State District Attorney’s Association. That kind of lopsided input is not helpful, particularly when you’re not talking about the best and the brightest but a partisan organization bent on expanding criminalization and the prison-industrial system that looks like its going to be California’s only economy in the not too distant future.

  4. Well, the federal criminal code has been ruined by Congress passing: 1. anything the injustice department asks for, and 2. something to cover any panic created by the evening news or Nancy Grace and others of that ilk. Then there was the three strikes and you’re out contest to prove whose was biggest. And then there are the great conservative activists who want to remove any protections provided by the constitution that they can. Now we have the lock up and register as a sex offender any sad misfit who ever had a picture of a naked child on his computer, whether he knew it was there or not. Not to mention doubling the statute of limitations that has anything to do with banks, and running collections for all the banks and corporations throught mandatory restitution.
    Congress loves to close “loopholes” like removing the requirement that prosecutors have to prove that something was put in the mail.
    And we want finality, even if the criminal injustice system makes “mistakes” and locks up fully innocent people. And we can’t throw out unlawfully seized evidence, because we can sue the cops who are immunized by “good faith.” And withholding Brady material doesn’t ever matter because it is impossible to meet the burden of proving it would have affected the jury because you sure can’t talk to them. Nor can you get voir dire in federal court which will allow you to find out how biased your jurors are.
    Rant? Don’t get me started. Anna

  5. Lawyers can’t be trusted to fix the system because of the inherent conflict of interest: put them in a legislature and they will make the law needlessly complicated and hard-to-use in order to create work for themselves. The monstrosity that is federal law (and regulation) today can be traced directly to this very problem.

    I have a modest proposal of my own to fix the system: eliminate the practice of judges instructing juries in what the law means before the jury is sent away to deliberate. Just give them a verbatim copy of the law the defendant is supposed to have broken, and tell them if they aren’t sure he did, they should vote not guilty. Result: any law that isn’t written so they can all understand it will be effectively nullified.

    Which is as it should be. If 12 out of 12 average Joes can’t figure out what a law means, then it’s a violation of the spirit of the Rule of Law and morally invalid already.

  6. What’s unfortunate, JDG, is that you are quite correct that 12 average Joes won’t be able to figure out what the law means, but they will most assuredly be certain that they understand it completely. They will have 12 absolutely perfect understandings, not one of which will reflect an accurate understanding or a fully conceived comphrension of the potential flaws of their “common sense.” And if you ask them afterward for their understand, then explain to them potential inherent problems with their understanding, they will shrug their shoulders, and utter the sound, “oh”.

    But by then, the decision will be made and a fate decided.

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