Of course prosecutors understand strength when they see it and are more likely to plea bargain with well represented defendants. Again, the poorly defended lose out because it isn't just facts that determine. It's also technique, power and connection, the everyday currency of the best lawyers. Prosecutors are not mindless and neither are they for the most part unfair. They are reasonable human beings but work within a system they do not control and it is their job to get convictions. So they shop for favorable judges, suppress evidence, and seek to exclude minorities from juries all to get high success rates. And sometimes innocent people are convicted. The fall back argument becomes "a few innocent people may suffer and that is unfortunate but..." The Innocence Project today works to free victims unjustly convicted in the United States and has secured the release of 168 victims of over-zealous prosecution. To those at the mercy of this justice system Germany of the 1930s has some elements in common. There the target was Jews. In America it is minorities and the poor.
So pity the poorly defended because overwhelmingly they are the ones who go to death row, the victim of a prosecutor or judge whose local power has become absolute and whose judgment is defective. This is not how the American judicial system was intended by its framers to work.
One does not have to look far to see some of the sources of problems. For every 100,000 white men in America 463 are in jail today. For Hispanics the comparable number is 1,220 and for Blacks 3,218. In America white people have an average income of $42,500 while Hispanics and Blacks earn $30,700 and $27,900 respectively. One in 142 American residents is in jail today. It is also true that the states that rank lowest in investment in education rank highest by percentage of murders. Conversely, the states who ranked highest for investments in education tend to rank lowest for capital cases. States in yellow do not have a death penalty. We seem to have a choice.
| Population | Serious Crime | Murder | Investment in Education | |
| Rank | Rank | Rank | by state in 1998 | |
| Louisiana | 22 | 7 | 1 | 44 |
| Mississippi | 31 | 27 | 2 | 40 |
| Maryland | 19 | 3 | 3 | 25 |
| Georgia | 10 | 16 | 4 | 29 |
| New Mexico | 36 | 4 | 5 | 14 |
| Alabama | 23 | 20 | 6 | 39 |
| Tennessee | 16 | 5 | 7 | 49 |
| Illinois | 5 | 8 | 8 | 30 |
| Arizona | 20 | 14 | 9 | 47 |
| N. Carolina | 11 | 18 | 10 | 35 |
| Population | Serious Crime | Murder | Investment in Education | |
| Rank | Rank | Rank | by state in 1998 | |
| MA | 13 | 21 | 41 | 32 |
| Utah | 34 | 41 | 42 | 12 |
| Montana | 44 | 44 | 43 | 22 |
| N. Hampshire | 41 | 46 | 44 | 38 |
| Iowa | 30 | 40 | 45 | 10 |
| Vermont | 49 | 48 | 46 | 7 |
| Idaho | 39 | 42 | 47 | 36 |
| Maine | 40 | 49 | 48 | 26 |
| South Dakota | 46 | 47 | 49 | 45 |
| N. Dakota | 47 | 50 | 50 | 16 |
