In the last few weeks, we’ve seen an explosion in calls for criminal justice reform, particularly with respect to the police. Almost without exception, these calls for reform have been outward-looking. In other words, people, especially lawyers, are calling for other people to make changes.
While everyone involved in criminal justice should inarguably change how they behave, that won’t happen if everyone is looking at everyone else and waiting for them to make changes. We, meaning members of the Bar, should be looking inward and seeing how we can be different.
Here are just a few suggestions for how we might consider making real change.
Former Justice System Participants
I’ll start with the group to which I belong: former justice system participants. We could be doing much more to effect change within the system. Two tasks in particular spring to mind:
- We could, and should, shine a light on those practices we found abhorrent while we were practicing. Rather than act as uncritical cheerleaders for our former professions and colleagues we should provide honest feedback with respect to the realities of life in the justice system. After all, we’re no longer under the yoke of Law Societies and are much freer to speak our minds than our colleagues who still practice.
- We should encourage our colleagues who remain in the system and are unhappy with how things are to remain in the system and fight for change. I took the coward’s way out and just bailed when it became obvious that criminal justice was not what I’d been told it was. Don’t do what I did. The courts, Crown, and defence bar need more dissatisfied misanthropes, not fewer. Crowns, defense, and judges who do their best every day to see justice done should be recognized.
Crowns are in a difficult position. They’ve got to enforce their mandate to uphold public safety and security while somehow doing justice in a deeply unjust system. I don’t envy Crown Attorneys. But there are tremendous opportunities for change within the role.
I don’t have specific suggestions for Crown Attorneys trying to make the world a little bit fairer. What would be an effective measure for one would, for another lawyer in different circumstances, be impractical or useless.
The possibilities are limitless, however. That’s particularly true in the area of enforcing “Crown policy.” I can’t count how many insane policies I’ve been required to maintain while working as a Crown Attorney. All of the following are supposed “policies” (often unwritten) that it’s been suggested to me I must maintain in order to keep my job as a prosecutor:
- Ask for a recognizance in the amount of $3000 for every domestic violence accused regardless of circumstances.
- Proceed with every domestic violence offence regardless of the likelihood of a crucial witness testifying.
- Treat “starting point” sentences as unalterable recommendations regardless of the seriousness or lack of seriousness of an offence.
None of these, of course, are accurate descriptions of the law in any jurisdiction. In fact, they’re violations of the law. In some cases, I had the wherewithal to resist these policies and do my job properly. In others, I unfortunately didn’t. Even in those cases where I resisted the policies, I should have made a bigger stink about them. They did real damage to the administration of justice.
Crowns still in the system have the opportunity to push back against unlawful and impracticable policies and “rules of thumb” that don’t do anyone any good.
In my brief time as a defense lawyer (during which I performed relatively poorly, all things considered), I became intimately acquainted with the economics of Legal Aid defense work. The system, overwhelmingly, is designed to financially reward volume.
While there are plenty of fantastic defense counsel who work hard on every charge in every file, there are many who churn out guilty plea after guilty plea. I know this is the case because, as a Crown, I relied on these defense counsel (who we referred to as “reasonable” in the Crown’s office) to do my job.
The system cannot function as it does now without the complicity of a significant minority of the defense bar. And the only way to eliminate ineffective defense counsel is to create meaningful reform in the compensation and incentives provided by Legal Aid.
Performance should be tracked and incentivized. “Volume practices,” which are incompatible with quality legal work, should be financially discouraged.
Do One Thing
I don’t expect that anyone will be able to do everything right. Lord knows I didn’t. But I don’t think its too much to ask members of the Bar to each make a single meaningful change to the usual course of business. Because business as usual is strangling the justice system.
The concepts I’ve mentioned above are just starting points and examples where I think some meaningful progress may be made. There are certainly other areas, especially for Crowns and former justice system participants, to improve. I remain convinced, however, that fixing the justice system will require more than a new kind of policing. It will need to be a group effort, with everyone helping out.