When someone runs afoul of the criminal law, their first point of contact with the system is almost always the police, and this is necessarily an adversarial, conflict-ridden situation. Why do we do it this way? Obviously if the police are at the scene while a violent conflict is underway and they break up the fight, they're in a position to apprehend the suspect and hold them pending a bail hearing, but as a general procedure, do we actually need to send police to arrest someone as the first step of a criminal case?
What if, upon investigators deciding to charge someone, before issuing a warrant they were to forward a notice to a defence lawyer, who can approach the accused in a non-threatening context, inform them of their rights and obligations, and make arrangements to respond to the charges?
* * *
"Excuse me, Mr. Doe?"
"Who are you? A cop?"
"Not at all. I'm a lawyer. Actually, I'm your lawyer for now, unless you already have or decide to hire a different one."
"Don't need one, and I'm not gonna pay you."
"You're not expected to pay me. This is one of the things that whole 'defund the police' business is paying for. My job is to advise you of your legal rights and obligations, and to help you through the process. And the first step in that is to inform you that a prosecutor has elected to charge you in connection with an assault alleged to have happened last Friday night outside Roe's Pub."
"That bastard. He started it."
"We can talk about the facts and your defense later in my office. Right now, I need you to know that there will be legal proceedings against you, and you are ordered by the court to attend on this date. You should know that if you don't show up, they'll charge you with failure to appear as well. I will be there in any event, and do my best to defend you, but I will not lie for you. And you should know that if you are convicted, the police will be coming for you."
"They'll have to find me first."
"Well, I found you."
"Yeah, but I wasn't hiding."
"You want to go into hiding for the rest of your life? Look, right now you're merely an accused, presumed innocent until proven guilty. If you don't help me defend you, it's very likely you will be proven guilty, especially if you are guilty of simply failing to show up when commanded to do so. And once you've been convicted, you will be officially a fugitive, and actual arrest warrants will be issued. Moreover, depending on the seriousness of the crime, they may implement other enforcement measures: forfeiting your Basic Income, seizing property. They'll be going to great lengths to make it more costly for you to break the law than to obey it."
"Hmmm."
"I know. It's a big decision. As your lawyer, I can only advise you as to what your legal options are, and legally you have no choice but to appear. I can ask the court to reschedule your appearance if this date is impossible for you, but they won't allow it if they think you're just avoiding it."
"Okay. I'll be there."
"Great! Now, is there a good time for you in the next week for us to talk about the case?"
* * *
Obviously this approach wouldn't be practical in all cases. There are going to be times when someone is apprehended in the middle of a violent crime and needs to be subdued and isolated to protect others. And this model doesn't fully address what I think are serious problems with the basic idea of incarceral justice in the first place. And there are a host of practical complications and considerations that I haven't thought of here (and a bunch of others I've deliberately not included in my example narrative). But it seems to me that the current approach of leading off with coercive force by the police, is a really bad default position to take.
I think this might damage the relationship between lawyer and client. Some people dont like the bearer of bad news.
ReplyDeleteThat's definitely something to think about, though I believe it isn't insurmountable. I imagine most accused already have some idea that they're likely to be charged in the first place, so the bearer of bad news isn't coming as quite such a shock, and if the person is explicitly there to HELP you, rather than putting cuffs on you, that should go a long way towards ameliorating the reaction.
DeleteHuh. Blogspot seems to have addressed the problem that kept me from commenting. Nice.
DeleteI think it is something worth consideration. It is definitely a more practical way of doing things than the current Legal Aid process.
ReplyDeleteAs you mentioned, there are some practical issues. For example, the current approach to fingerprinting for hybrid and indictable offenses. Personally, I don't think that it would be overly-concerning to simply move fingerprinting to after conviction. It might actually save on a lot of overhead costs (eg processing fingerprints to later remove them from the system when someone is found not guilty).
I had a (loosely) related idea with respect to forensics units and investigations. I think it would be preferable to remove these from under the umbrella of police services. A separate, independent body that could involve multiple specialists (perhaps 3 of them) overseeing/managing collection of evidence then submitting their own findings/reports, after reviewing said evidence on an individual basis. The costs of doing so might be worthwhile because it is quite costly for defense teams to hire independent specialists to review cases, which can be a detriment to an accused's defense based on their financial standings. It could also prevent some cases from going to court entirely, should different theories/accounts be reported. Findings could also go directly to both prosecutors and the defense, which could save on some downstream overhead with respect to sharing between counsels.
The legal system should be safe, fair, and accessible to all with as little bias as is possible.
One of the questions that I have with respect to the lawyers contacting the accused is: Do you think that the actual work of locating a person would still fall to the police? Or might it require private investigators, etc?
I think it is probably a favorable approach in comparison to potential violent altercations between police and alleged offenders, as it is better suited to keep interactions calm. After all, no one is approaching in uniform, which might cause stress levels to rise right from the outset.
I do have some questions as to whether this could also apply to those being sought for questioning by police, etc?
Again, I think it is worth further consideration.
Thanks for your comment. I have also thought that the investigations unit really should be separate from the tactical/muscle aspect of policing. And connected to that, I imagine that there might well be a new role for private security simply to escort lawyers on some of these first contact situations, so long as it was made very clear (especially to the accused) that they're just bodyguards and not law enforcement.
DeleteWith respect to your questions, I had thought at first that maybe the police would locate the accused, but I'm not sure that should be necessary. In this model, I'm kind of assuming that the security/muscle role of police would be separated from the investigatory, social work, traffic etc. roles. So I'm presuming the prosecutor's office would have provided whatever contact information they had on the accused, along with the charges and probably even disclosure, when the defender was assigned.
As for people being sought for questioning, yeah, that's something I haven't figured out yet. But separating the security/tactical element of the current police service from the investigative office could change that as well. If the investigators aren't POLICE detectives with guns, but rather purely investigators without any arrest powers, then the dynamic's gonna be a bit different. Also, I tend to think that we need to take the emphasis off arrest/charges as a metric for performance. An investigator shouldn't be overly motivated to CHARGE someone; they should be directing their efforts at producing an accurate report and recommendations for a satisfactory resolution to the situation, whether or not that involves criminal charges.
These are all such interesting ideas I've never thought or heard of! So much to ponder.
ReplyDeleteI'm retired from our local DA's Office, which is the 5th largest one in the Nation, so I got to observe a lot about the Criminal Process. A lot of it isn't working well and certainly isn't equitable for all. Mostly the best Justice Money can Buy would be the most accurate assessment I can come up with. Many calls to Police are about secondary issues not necessarily 'crimes' per se... like when a Mentally Ill Person is acting irrationally in Public and seems to require some kind of Medical intervention. Cops showing up who are poorly trained to Deal with Mental Health Issues is probably not the Ideal scenario and thus it often goes sideways and escalates when the person they encounter isn't Well enough to respond appropriately. That's just one of many instances I can think of where Funding for other Services would be Helpful rather than just making the Police the catch-all for every Social Problem that might require a response.
ReplyDelete