The Grand Illusion
Recently, with all the publicity surrounding the charges against Donald Trump, there’s been a great deal of commentary on a “two-tiered” system of justice, where those with fame and money are treated far differently that those without either. That’s indisputable. It’s also always been the case – anywhere in the world.
What seems to get overlooked is just how long it takes for so many criminal cases even to get to trial. Recently, a CBS News investigation uncovered a massive backlog of court cases. Data from courts and district attorneys’ offices in more than a dozen major American cities showed that “pending” criminal cases jumped from 383,879 in 2019, just before the COVID-19 pandemic, to 546,727 in 2021. In California, New York, Florida and Michigan, the number of “pending” cases in 2021 totaled nearly 1.3 million.
The indictments against former President Donald Trump join a major backlog of cases, since Trump’s case in the D.C. federal district court is just one of the more than 6,000 pending criminal cases there. Trump may be the best known, but he’s far from the first defendant charged in connection with crimes related to the 2020 election. More than 1,069 people have been charged with crimes related to Jan. 6, which the indictment says Trump’s actions helped fuel.
But this isn’t just a Washington, D.C., problem. In one Georgia case, a man charged in a shooting spent ten years in pre-trial detention, finally had his case heard, with the result that the jury couldn’t reach a verdict, leaving the defendant facing another trial. Even in Utah, the current case backlog in just the state courts is over 10,000 cases.
In many cases, defendants spend more time in pre-trial detention than they potentially could serve if convicted. Is it any wonder that some innocent (usually minority) defendants who are unable to make bail “plead out”, rather than spend months in detention before trial? It’s also why many who are convicted get “credit” for time already served.
But whether it’s Trump or someone we’ve never heard of, waiting months, or even years, to even get to trial is a disgrace… and suggests that our justice system is anything but just, since the poorest are the ones most penalized by such seemingly endless waiting – except in the case of Trump, where he hopes waiting will allow him to escape justice.
My understanding is that the number of justices in the country is far, far lower than it should be based on population growth over many decades. Proportional expansion of government size and services in a ratio consistent with our earliest decades as a nation has not kept pace (this would be trues as well for the number of house representatives – but that’s a whole ‘nother can of worms).
As appointment of justices is a highly charged political matter, just getting replacements for existing open positions is exruciatingly difficult. What to do, what to do.
Yes, I think this is another of those issues significantly influenced by the way major civil roles are either directly elected or political appointments, rather than controlled from within and reviewed by the civic authorities. Justices should be promoted from a pool of potential candidates and reviewed on a regular basis. Same as Sheriffs should be, or District Attorneys. They should be good at their jobs, not good at appealing to the public.
I’m certain that the other major issue alongside would be a lack of new courthouses being built – as the population booms, *everything* infrastructure related lags behind. Most countries struggle to build enough schools in new suburbs, let alone fire stations or libraries, and few would consider courthouses or justice institutions.
That would still lead to a constant glut of cases trying to be heard in limited space, even if you did have more justices.
I’m far from an expert but I think you also have to take into account that upwards of 90% of criminal trials end with a plea bargain.
This also seems like a class issue, because a “violent” criminal who robs a 7-Eleven of a hundred dollars will languish in jail before his trial whereas a “white collar” criminal who embezzled millions will be released on bail.
So who do you think comprises the majority of the backlog of cases in the system? Who has the “perverse incentive” to plead out?
Another factor is the availability public defenders. Public defender offices (provided by the government) are usually understaffed (attorneys, support staff, investigators), underfunded, overworked, and new attorneys. As there is a right to counsel, and a large number of those awaiting trial are entitled to a public defender, scheduling stretches far into the future for low visibility cases (7/11 robbery), while high visibility cases take precedence (Trump’s cases). Most states and the Federal Government pay the public defenders, but other states require the judge appoint a defense attorney from a pool of available attorneys (Massachusetts, for example). The above impacts the quality of the legal defense (there is only so much bandwidth for an overworked, understaffed attorney has available).
Also, the complexity of the case is another factor. The 7/11 case could get complex with battling expert witnesses, but it would likely still be 5 days for the Government and Defense to present their cases and the jury to decide. There is no way for any of Trump’s cases to be only a week-long. Each case will likely be several weeks just for the Government to present their case–remember, the Beyond a Reasonable Doubt burden is pretty high and it applies to each element of each charge in the indictments.