It’s time for some criminal justice tort reform

Our State’s most electable citizens have been hard at work protecting Texans from the plague of frivolous lawsuits that were destroying the very fabric of our State. Without our State’s tort reform laws in place who would be the voice for All State, Farmers, or other multi-billion dollar corporations as they face the wrath of regular citizens looking to be compensated for their injuries?

Now that we have effectively granted immunity to the healthcare industry and Big Insurance let us focus our tort reform energy on the criminal justice system. It’s worth repeating that prosecutor in Texas are the most powerful and least accountable members of the legal profession. They can unilaterally decide someone is guilty and convince nearly anyone, guilty or innocent, to plead guilty rather than face the rigged game we call a criminal jury trial. Let’s look at some tort reform ideas that could serve the criminal justice system.

Caps of Damages

In the civil tort reform world they recognize that caps on damages can help dissuade a frivolous lawsuit. For example, if a doctor shows up drunk to surgery and accidentally kills grandma, the pain and suffering of the family and granny is worth only $250k. Which means it’s hard for someone to sue over dead granny because of the cost of litigation (that’s by design btw).

In Texas the range of punishment reflects the damages that a defendant pays for violating anyone of our State’s thousands of criminal offenses. Possession of .0001 grams of cocaine is a State Jail Felony. Really, some idiot thought that we should threaten people with prison who party like W and Obama did.

What’s the point of this horrible sentencing scheme? To shake down defendants to plead with a horrible range of punishment. On your first go round on a State Jail Felony you have to get probation, so this has turned into more of a make work project for local governments, but still, why should anyone be looking at 2 years in a cage for possession less than a gram of anything? We are talking about possession, not use, or being under the influence, or committing a real crime (one with a victim), but just having less than a gram of a substance in your console. More than a gram? 2-10 buddy.

Misdemeanor sentencing options are equally inane. That joint in your backpack, up to 6 months in the county jail. Wrote a check that bounced? 6 months in county jail? Stole a $51 worth of DVD’s from Target, up to 6 months in county jail. Bar fight, up to a year in county jail. Fail to grovel in front of the police as they arrest you- up to a year in county for “resisting” by actually struggling while they tackle you. This is nuts. Why should we lock anyone up for 6 months for Class B misdemeanors? We all only have so long to live, and throwing someone in a government cage is taking away our most precious resource, time.

Misdemeanors are among the most “Who give’s a shit?” of all offenses besides State Jail Felony dope cases. Prosecutors use the horrible punishment ranges to make probation look like a good deal and avoid trial setting on junk cases.

So if we want to quit convicting the innocent we need to cap damages on those who choose to exercise their Constitutional right to trial. I know these are just individual and Constitutional rights we are talking about, but they should at least as important the right of Big Health and Big Insurance to socialize their losses and avoid responsibility for malfeasance.

If a crime has no victim it should be fine only. We are merely criminalizing taste and preference, not actually protecting anyone from being harmed by a defendant. That would get the consensual crimes and hot checks into ticket court, where nonsense cases belong.

Summary Judgment-

Summary judgment in civil cases is a way to get shit cases thrown out early. It does not exist in criminal law. Judges can not screen the State’s case and see if they have enough evidence to go forward. We have no rules for speedy disposition for lesser cases like 91(a) that allow for a speedy trial in civil cases under $100k. Those rules are designed to minimize cost so that parties will get to trial quickly. We had a speedy trial act in Texas, but the pro conviction Court of Criminal Appeals decided to rule that law unconstitutional under some “separation of powers” idea that we should never limit the power of the State to convict on their schedule. We need a law to dismiss all cases when there is not clear and convincing evidence of guilt. Let the judge decide if the State has enough evidence to go to trial. That would be worth more than the grand jury system we have know (which is really a cover so that prosecutors can avoid making tough decisions, as well as prosecuting whoever they want whenever they want).

Instead of a summary judgment hearing we try to maximize the cost to defendants to go to trial by wasting their time. Most courts require the defendant to appear at every announcement setting. Why? So that they miss work and get sick of waiting around the courthouse for hours and plead guilty. There is no reason to make people sit in the hallway for a court setting that is not contested other than to put pressure on them to finalize the case. Why not make the police appear at every setting? Or even the prosecutor?

Loser Pays

How about loser pays? If the State wins at trial, the defendant pays with his freedom, not to mention the cost of litigation and all the time he wastes waiting to go to trial. If the State loses nothing happens. Really, there is no accountability for bringing a junk criminal case to trial. Prosecutors know that if you scare a jury with enough BS they might just convict anyone, so why not roll the dice? But if the State had was held responsible  for trial decisions that would change. Make them pay the defendant for the cost of fighting a case where reasonable doubt exists, and they would be more selective about what cases they took to trial.

I’ll be waiting for TLR to take up the banner for criminal justice tort reform, until then we can keep convicting the innocent.