Functional Democracy

SUMMARY

There are such significant errors in the process of convicting a person that it makes the death penalty the wrong approach to how one handles a criminal. Follow this link to the article that stimulated this reaction: http://ap.google.com/article/ALeqM5iwilSnidfGBS–jgsJIo6uvlYp7AD8SIJ8K00

COMMENTARY

There are many fictions associated with the current practices of attorneys, judges, jurors, the trial system, and determination of punishment in this country.

Fiction one: The adversarial interaction between the prosecution and the defense leads to the truth. A cooperative effort among the people working to determine the truth is more likely to be successful than a system that distracts from this effort by inserting a competition that works to achieve a winner. Adversaries try to obscure information that weakens their own position, rather than expose and clarify it so that one may ascertain an objective reconstruction of events.

Fiction 2: A jury is capable of divining the truth from the statements of witnesses. A good storyteller or confident liar may more easily influence a jury than a nervous, yet honest person who is recounting the events of interest. Laypeople are also not apt to discern critical aspects of expert testimony that are tainted or biased to the extent that it makes such testimony a distortion of the actual events. The argument that the opposing attorney needs to alert the jury of these issues again treats the trial like a competition not a search for truth.

Fiction 3: A graduated punishment policy to fit the punishment with the crime will significantly discourage crimes. In fact, it merely identifies the people who are willing to suffer the punishment, so they commit the crime. The objective is to eliminate the crime, not to find what punishments are inadequate to discourage the crime.

Fiction 4: Society improves after the killing certain criminals. Humans are the most important resource on earth. Using this resource to its best advantage is what will benefit society.

SOLUTIONS

Conduct trials that are more like grand jury investigations but requiring that all relevant people testify. The object is not only to ascertain the facts but also to determine what events occurred and what motivated them. There is no effort made to restrict information for any reason even that which someone obtained illegally. The objective is to determine what actually occurred not to follow any arbitrary rules that restrict the access to information.

Use a panel of people trained in the process of investigation and assessment of criminal information to discern the actual events surrounding a case, rather than a pool of clueless jurors.

Create a public health system that identifies people with mental health problems and actually treats them. People who are unwilling to get and follow treatment should receive attention and surveillance by the healthcare system and law enforcement to apprehend them early when they commit a crime. This is almost harassment but it is avoidable if the person follows their prescribed treatment plan.

Reduce all punishments to the payment of restitution and incarceration until one achieves sufficient mental health to function in society. While incarcerated, one must produce sufficient useful labor to pay for the incarceration and costs incurred by their crime. To encourage a criminal to describe honestly the crime committed, their honesty is regarded as a step toward rehabilitation, while their dishonesty, while not necessarily convicting them, will expose them to more serious mental health scrutiny which may still lead to confinement.

Authorities in the area of mental health need to study criminals in order to determine what tools for the detection and treatment of mental illness are inadequate or misused and in need of correction. These activities will provide useful labor for the human resources that are imprisoned.