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In a perfect world criminals would be punished appropriately and expediently, and the innocent would find vindication in our courts of law. We do not live in a perfect world. We have the highest rate of imprisonment in the world, our crime rates are low and lowering, but our system can hardly be described as just.
Justice Alex Kozinski of the US Court of Appeals Ninth Circuit wrote an article in the Georgetown Law Journal last summer that is bringing the injustice of our system to light. As George Will put it:
[Justice Kozinski] provides facts and judgments that should disturb everyone, but especially African Americans, whose encounters with the criminal justice system are dismayingly frequent and frequently dismaying.
The article [pdf] is eye opening. Yes, Kozinski sits on the most overturned court of appeals in the land, but that does not make him wrong here. His focus is not so much on the justice received by the guilty, but rather on the injustice received by the innocent in the gears of a system which can no longer tell the difference. Kozinski asks:
We can be reasonably confident that the system reaches the correct result in most cases, but that is not the test. Rather, we must start by asking how confident we are that every one of the 2.2 million people in prisons and jails across the country are in fact guilty. And if we can’t be sure, then what is an acceptable error rate? How many innocent lives and families are we willing to sacrifice in order to have a workable criminal justice system?
The question should weigh heavy on our hearts and minds because :
What we have is faith that our system works very well and the errors, when they are revealed, are rare exceptions. Much hinges on retaining this belief: our self image as Americans; the pride of countless judges and lawyers; the idea that we live in a just society; confidence in the power of reason and logic; the certainty that none of us or our loved ones will face the unimaginable nightmare of unjust imprisonment or execution; belief in the incomparable integrity and accuracy of our system of justice; faith that we have transcended medieval methods of conviction and punishment so that only those who are guilty are punished, and their punishment is humane and proportionate. There are, we are convinced, no Edmond Dantèses and no Château d’Ifs in America today.
The entire article worth reading and should be studied by all who are concerned that our justice system is broken and no longer represents our national character. In it he lays out the many ways in which the system fails, and his overall conclusion is that our belief in the prosecution’s uphill climb to prove a person guilty of a crime is a myth, the accused is realistically guilty until proven innocent, and the man accused of a crime must prove himself innocent — pretty much the opposite of what we believe about our criminal justice system.
If one accepts his conclusion then some very disturbing questions must be asked about the system as it exists today. The question I cannot get out of my head is this: how many people would be incarcerated if either a conviction at trial or a guilty plea to the actual crime believed to have been committed were required to imprison a person?
According to the Bureau of Justice Statistics the overall felony conviction rate is 68 percent. I presume this number is of cases that go to trial. If one excludes cases resolved by plea bargain then the prosecution does face real work in obtaining convictions, but this is only for 3 to 5 percent of cases. According to Conrad Black (who has a little experience with our justice system) “97 percent of federal cases and about 95 percent of state cases are resolved by plea bargains…” which would not be much of a problem except that “in practice, these [plea bargains] are almost invariably dictated by the prosecutor.”
Kozinski finds much of the same problem and adds to it corruption, people’s inclinations to believe the first position presented (always the prosecution’s case), enforced ignorance of juries, and naive beliefs in the infallibility of forensic and witness evidence presented at trials. As the problems inherent in the system stack up I’m forced to wonder if the system gets it right by accident rather than the other way around. In my own experience I attribute a just outcome to providence rather than to our criminal justice system as designed and operated.
I realize we cannot boil this down to an absolute binary where the system is either just because only the guilty are punished or unjust because some innocent people are incarcerated. I hope we can all agree, however, that the correct number of innocents we’re willing to sacrifice to have a system is much lower than the number we are sacrificing today.
My other primary concerned raised by this article and my own interaction with the criminal justice system is that the real problem is cultural rather than legal. If incarceration required a guilty plea to the actual crime (which almost never happens) or a trial conviction the system would be overwhelmed. We simply have too many people committing crimes which require adjudication by the system. Because our society and culture stands as it is now, we are forced by sheer numbers into a barter system of criminal justice where an unfettered, and often unaccountable, prosecutor offers the accused the best lemon on the lot.