We Might Be Doing Criminal Trials Backwards

Is it possible that we do criminal trials backwards?

In the United States, criminal trials have two parts:

  1. Determination of guilt or innocence
  2. Determination of penalty

Does that make sense?

What if we did it the other way around? What if, first, the prosecutor and defense attorney had to convince the judge or jury of the appropriate punishment for the crime in question. In this phase, the state would present the facts of the case. The defense could challenge the facts just as they do now. But there’d be no attempt to prove that any particular suspect perpetrated the crime.

At the end of this phase, the judge or jury would be bound by the penalty determined appropriate. If the jury decides, only a majority vote is required.

Next comes the guilt phase. This part works exactly like it does now. The jury has to determine whether this particular suspect committed the crime.

Yesterday, I wrote about my ambivalence over the death penalty. That blog generated some interesting emails and comments. But I didn’t offer a solution. So I’ll give that a shot here.

Let’s look at this new system for two crimes: possession of a small amount of marijuana and first degree murder.

Marijuana Possession

An adult male was pulled over for having a burned out headlight. When the driver opened the center console in his car to find his insurance card, the police officer saw a zip-lock bag containing some sort of plant material. The officer asked the driver to step out of the car, and the driver complied. The officer retrieved the baggie, opened it, and recognized the smell. The officer asked the driver if the baggie contained marijuana. The driver said, “I won’t answer any questions without a lawyer.” The driver was true to his word and refused to answer any questions. The police maintained chain of custody through the lab process, and the baggie contained about a quarter ounce of pot. The driver had never been convicted of marijuana possession before. On these points, the defense counsel concurs.

The jury may impose a sentence of up to 1 year in prison and up to a $1,000 fine. The prosecutor recommends the maximum penalty. The defense counsel recommends no penalty.

At this point, the jury has not met the defendant. One juror, a donor to Show-Me Cannabis, demands the defense counsel’s request. He tells his fellow jurors, “this is ridiculous. They guy had a quarter ounce of a plant that grows in the wild. The police have better things to do. There was no evidenced he was driving stoned.”

Another juror argues for the max. “Pot’s ruining this country. Break the law, pay the price. I vote for one year and one thousand dollars.”

Most of the jurors grumble about the extreme choices. “He broke the law,” one says, “and it sets a bad precedence to just let him walk. But a year is too much. Any prison is too much for this.”

After hours of arguing, the majority sides with the Show-Me Cannabis guy. They vote for no penalty.

At this point, there’s no need for the guilt phase. The defendant is off the hook. The jury never knows if the defendant was an 18-year-old black man or 42-year-old dentist and father of three.

Murder in the First

During an armed robbery, a young male shot a convenience store clerk and two customers. He seized just over $200 cash, over $1,000 worth of lottery scratch-offs, and $300 in liquor. No one in the store was armed besides the suspect. Security video showed that all three victims complied with the suspect’s instructions, though there was no audio to determine exactly what was said. All three victims died. Two were shot multiple times. The suspect was arrested the next day at nearby grocery store when I tried to cash in five winning scratch-off tickets he’d stolen.

The judge must choose between three options: death, life in prison without parole, or nothing.

The judge realizes that information revealed in the guilt phase could color the jurors’ minds. If he were to choose the death penalty and the jurors felt some compassion for the suspect, they would probably find him not guilty. So the judge chooses life.

In the penalty phase, it turns out the crime was as cold-blooded and pointless as it appeared. The defendant admitted to the hold-up but told police everyone was alive when he left the store.

The jury found him guilty. The sentence was, of course, predetermined.

Suppose, however that the prosecutor asked for the death penalty. Would the defense counsel, also, ask for death on the suspicion that the jury would be more likely to acquit?

Or, if the judge were limited to the prosecutor’s recommendation or nothing, how rare do you think it would be for a prosecutor to that gamble?

My Take

I realize there are things to work out. I implied that the jury in the pot case must choose between the prosecutor’s recommendation and the defense counsel’s. Of course, the system could allow the jury to pick anything in between. Or not.

The the second case, I implied that some other system determined the possible choices. Then I offered a few other scenarios.

I suspect that if the penalty phase came first and was limited to the circumstances of the crime, prosecutors would rarely ask for the death penalty. They’d know that the jury would be more likely acquit a suspect they believed guilty if any believed the death penalty was unjustified.

The other thing I like about penalty-first trials is they might reduce racial or other biases. Sure, jurors might suspect that the race or background of the suspect, but they wouldn’t know. Same for victims if the crime involved victims.

I don’t know that his reform would make our legal system more fair and more just, but I’d love to see an experiment that put it to the test. The first state to try it would look brilliant if it worked.

I got this idea from a great book on game theory and strategy, Thinking Strategically: The Competitive Edge in Business, Politics, and Everyday Life (Norton Paperback).

Also, I received an email letting me know I’m not alone. There’s an organization called Conservatives Concerned (about the death penalty) that’s been gaining a fair amount of traction recently.

What do you think?

Author: William Hennessy

Co-founder of St. Louis Tea Party Coalition and Nationwide Chicago Tea Party Persuasive design expertLatest book: Turning On Trump: An Evolution (2016)Author of The Conservative Manifest (1993), Zen Conservatism (2009), Weaving the Roots (2011), and Fight to Evolve (2016)I believe every person deserves the dignity of meaningful work as the only path to human flourishing.

3 Comments on “We Might Be Doing Criminal Trials Backwards

  1. I liked this piece, even though as Doug points out, this is more of a though-provoking exercise, than a ready-for-implementation policy.

    Some nits, many of which are not really nits: how can you have video evidence, without revealing to the jury who the suspect is? (Also, your “fact” that the hostages followed all instructions… but that no audio instructions could be detected… would not hold up in my court if I was the judge. :-) Determining the penalty first, without revealing who the suspect is, means that the suspect cannot testify in their own defense, and very likely means the facts of the case cannot be determined. (Your example-scenarios both had all facts determined “without” the suspect being involved… in one the suspect refuses to say anything, and in the other the video provides ‘all’ necessary evidence. These do not cover all the cases.) What about cases where the suspect is incarcerated while awaiting trial, such as a first degree murder charge? This sounds like it could be easily abused by corrupt cops. And of course, one thing your piece does not mention, is that plea-bargaining (getting a lesser sentence by indicting your fellow suspects) is a common tactic, which will be effectively impossible under your new scheme. Not saying that is a bad thing; plea-bargains have always had more than a little whiff of coerced-confession, to my ears. But it needs addressing, before some state makes this new approach to trials the law.

    Overall, the whole idea strikes me as interesting, but too fuzzy at the moment to gain committed support. So, rather than try and get people excited to enact this system statutorily, today, at this point I would suggest seeing if you can get some lawyers/professors interested in experimenting with your proposed structure, to shake out the bugs and see whether it holds water. There is a thing called moot court, which law school students do. Their are also mock trials, as a competitive sport. Basically, a bunch of soon-to-be lawyers sit around, and simulate a court case. They have coaches and judges who are already professionals, or professors in some cases. Phase one of your system, the penalty-phase, is more like a mock-trial with the jury; phase two is more like a moot-court-trial, where evidence is predetermined and the jury is not as essential. Overview of the two types of sporting events:

    Bit of googling shows that plenty of places in Missouri have teams:

    There are also high-school competitions, which would be easier to get access to, but less likely to come up with a convincingly-bulletproof final system. If you don’t have any luck getting interest drummed up in Missouri by emailing people yourself, I would suggest you try contacting Milton Wolf — his home county is just on the Kansas side of the border in KC, and he can prolly put you in touch with somebody.

    This also might be something Rand Paul in Kentucky would find interesting; he is already concerned about racial bias in sentencing. Or hey, if you want a lawyer rather than a doctor like Wolf & Rand, after the situation in Mississippi resolves itself one way or the other, contact Chris McDaniel, who was on the moot court back when he went to law school in the late 1990s.

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