Thread by @robertltsai

For those interested in criminal justice reform, here’s a thread on some of our constitutional tweaks in the @DemJournal draft Constitution. The first set of changes is to try to reduce coerced confessions by excluding them unless their substance can be confirmed in open court.

This will surely be harder to do and so will probably reduce reliance on confessions alone. We also incorporate and expand Brady to help with the asymmetrical access to evidence and resources in the criminal justice system. /2

We explicitly expand the right to counsel not only to incorporate any hearing to confirm the substance of so-called confessions but also for pleas, appeal, and post-conviction review. /3

We also give defense counsel some constitutional language to work with to push for “adequate compensation” and “reasonable workload,” while realizing that this sort of thing can’t be designed in one fell swoop. /4

Many of us are troubled by mass incarceration, but over-punishment is driven largely by politics with no simple constitutional fixes. /5

The innovation I offered (accepted by the group) is to create a mechanism to force periodic review that incarceration is necessary. If politics and ethos change in favor of rehabilitation, that’s a good way to ensure those benefits can spread throughout the system. /6

You’ll notice that the provision puts a thumb on the scale of non-incarceration by forcing prosecutors to make a showing, and judges to make a finding, that incarceration serves penological justifications by “clear and convincing evidence.” /7

Design solutions are tricky with problems that are simultaneously large scale in nature and also work injustice for some on the individual scale. The goals here—modest in some ways and more ambitious in others—entail increasing accountability and empowering defendants. /8

In that spirit, we explicitly add proportionality as a principle for sentencing in addition to avoiding cruelty. /9

Others will no doubt want to further. I’d be interested in hearing about other design ideas when it comes to constitutional criminal procedure. Check out the entire draft constitution: bit.ly/3pGKnyT /10

@UnrollThread pls