How would we describe a society that determined justice by putting parties to a criminal dispute, one of whom might be small and weak the other massive and armed, into a ring to fight to determine who was right–and actually believed that guilt would be determined by who lost?

I believe we would reasonably call that society ignorant and savage.

The question is: do we, the people of these United States, need to accept that we are a society so ignorant and savage that we must continue to tolerate this model for our criminal justice system? Many corrective measures have been proposed but there is a basic flaw in the system that runs so deep that until it is addressed other corrections will be relatively ineffectual.

The flaw is that of a misdirected incentive system.

In our justice system all the incentives are for police to arrest and for prosecutors to convict. Innocence is not even of secondary importance. In our city the costs will be millions for the scores of men falsely convicted over years by having confessions tortured out of them by a Chicago police commandant.

Here in the U.S. we know how well the incentive system works. We are the world’s experts. Here, it accounts for almost everything that does work.

It's what gets people out to vote, when they do.
It's what make politicians do the right thing, when they do,
It's what makes American industry and science the best in the world.
It's what makes Enron and World Com execs steal us blind.
And it's what makes police arrest innocent people and withhold evidence.
It's what makes prosecutors seek conviction regardless of innocence.

In our criminal justice system the prosecutor’s job is not only to present evidence but to inflame the jurymen and incite them, by whatever means, to render a guilty verdict. To "win" a case it is important for prosecutors to keep evidence of innocence from the jury. The prosecution will, of course, be greatly facilitated if the defendant is poor, uneducated, or part of a social or racial group different than that of the jurors.

As we know from the many recent exoneratiions here in Illinois when it comes to the death penalty the procedure often simply becomes lynch law in robes and a business suit. Yet there is no more serious crime than incarceration or death falsely inflicted on a citizen by his or her own government. When police officers or prosecutors, in effect, setup innocent persons to be murdered or incarcerated by the state they betray us all.

Under the present system there are great rewards and incentives for "the state" to perpetrate such crimes. Penalties for prosecutorial "misconduct", even when it amounts to murder, are almost zero.

While we have recently become aware of a large number of erroneous death penalties, Thomas Sullivan, co-chair of the Illinois Governors Commission on the Death Penalty, has pointed out that it is likely that there are far more erroneous convictions for lesser crimes where the defense is often of poor quality and there is little likelihood of review. Even the most conservative interpolations from the commission's findings suggests that the state has jailed thousands of innocent prople.

There can never be anything like justice until the incentives of those representing the state are for justice rather than conviction. Until that happens the entire criminal "justice" system is an illogical, expensive, immoral sham.

Minor changes in the rules are not going to change this because the basic incentives are all exactly wrong. Until they are changed the system cannot work The problem is systemic.

The enormous suffering and injustice caused by the system is compounded by the enormous expense of keeping thousands of innocent people in jails at taxpayers’ expense.

Making the needed change is a huge job but has to be done. We won’t have a true justice system until the State’s incentives are for justice rather than conviction.

I believe that, as citizens and residents of the United States of America, we have a right not to be subject to an unjust and immoral criminal justice system.

And a duty to change or replace it.

–Tony Kelly