Our Questions About the Justice System

Originally Published June 26, 2015

The Washington Post released an noteworthy article titled “Are you running for president? Please answer these questions about the criminal justice system.”

The piece is a wide-ranging list of questions about some of our justice system’s most damning flaws. It’s worth reading in its entirety, but here are some relevant selections – followed by a few questions of our own:

ON CIVIL ASSET FORFEITURE

Attorney General Eric Holder recently announced changes to the Justice Department’s civil asset forfeiture policy. These changes put some restrictions on the ability of local police agencies to use the federal government to get around state laws aimed at curbing forfeiture abuses. But the changes come with loopholes, and the new policies will affect only a relatively small percentage of forfeiture cases. Do you believe that law enforcement agencies should be able to seize and keep property alleged to have been connected to criminal activity without ever charging or convicting the property’s owner? Should police agencies in states that have passed laws to restrict this practice be able to circumvent those laws by partnering with federal law enforcement agencies?

ON PROSECUTORIAL MISCONDUCT

Several media reports, advocacy groups and judicial opinions (including a recent opinion by Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit) have described an epidemic of prosecutor misconduct across the country. Do you believe there is a widespread problem of prosecutor misconduct in America? Do you believe the federal government has a responsibility to address it?

Currently, allegations of prosecutorial misconduct are investigated by the Justice Department’s Office of Professional Responsibility. But the filing, status, and results of those investigations are kept secret, not only from the public, but from the DOJ’s Office of the Inspector General. Do you think this policy is appropriate? Would you be willing to open the OPR to investigation by the IG’s office? Would you open it to FOIA requests?

ON THE TANGLED WEB OF US LAW

There are currently thousands and thousands of federal laws. In fact, there are so many federal laws that a number of efforts to count them came up with only rough estimates. This is because in addition to the sheer volume of laws, some laws are so vaguely written that it’s difficult to determine what they do and don’t allow. Other laws are repeated throughout the United States Code. Regulatory laws are also now increasingly enforced as criminal violations. U.S. citizens are expected to know and follow all of these laws, upon punishment of fines or incarceration, even though some regulators and law enforcement officials whose job it is to enforce these laws don’t always know them all, and even though some legal commentators have noted that it is impossible to follow some laws without violating others. Do you agree that there are too many federal laws? Should citizens who want to, say, run a small business, or support a political cause, be required to hire an expensive attorney simply to avoid breaking the law? If you agree that these are problems, what would you do to change them?

Balko’s questions are comprehensive and insightful, though we might add a few more:

The civil justice system is famously slow, with clear-cut cases taking as long as two years to complete – if not longer. Do you find this troubling? What steps would you take to increase efficiency in the civil courts?

For years insurance companies have taken a “Delay, Deny, Defend” approach to paying out claims. Millions of injured people are forced to watch the bills pile as insurers offer them low settlement after another. How would you help ensure justice for those who have been harmed through no fault of their own? Would you support tighter regulation of bad-faith insurance statutes?

New York lawmakers have worked to enact a right to counsel in eviction and immigration courts. Do you think there should be a civil right to counsel, and if so, do you think it should expand beyond eviction and immigration cases?