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The Barter System of Justice
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.
Published in Law, Policing
Try to assume better of people posting on the thread, or at least research the issue before posting. I know that a trial by a judge is called a bench trial. To my knowledge, in the United States, a bench trial is not a recognized right. Can you find evidence to the contrary? According to the following link, a bench trial is not a right at all under the Federal Criminal Procedure. To quote the article,
Since the same information appears on a Cornell University Law School website, I’m going to assume that it’s accurate. I believe that the states largely operate on the same rules and assumptions. Here is a link from a California law firm stating that the California Constitution gives the state a right to a jury trial.
By the way, Ryan M’s comment strikes me as terse for the purpose of being insulting, in other words, as trolling. The example of trolling is exactly why I don’t post more often on Ricochet. I appreciated the idea of using the low pass filter of paying to eliminate comments by habitual trolls, but the model doesn’t recognize that many, many people assume the role of troll whenever it suits them. You still frequently see drive-by comments of little value.
Whoa, Joseph.
Maybe you know something I don’t, but I didn’t take Ryan’s point as condescending at all. He and I are both attorneys. My experience (and his, too, I imagine) is that lay people aren’t aware of the existence/possibility of bench trials (we call them “court trials” in my jurisdiction).
So, I took his comment as well-intentioned, only trying to be helpful, to inform you of the existence of bench trials — i.e, he was assuming that, like most people, you weren’t aware.
Maybe you are right, but I don’t think that you are. The polite way to try to inform would have been to ask me if I knew of the phrase and concept, bench trial. In any case, the substance of the comment to which he responded was that we should have a right to a bench trial. His drive-by reply completely ignored the substance to play gotcha. As the thread stands, since my remark was about rights and since his remark implied that I am at best, ignorant, he turns out to have been wrong. Suppose that he had been correct. Would his phrasing have appeared to do any more than humiliate and dismiss me from the conversation? I don’t think so. He was attempting to rudely dismiss my detailed and thoughtful suggestion by falsely implying my ignorance instead of addressing substance. The tactic is classic trolling.
If he intended a more thoughtful exchange, since he isn’t bound by any low word limits, he could have made himself clearer from the start. I’d just recommend to anyone that if you’re going to address a person, then you exercise appropriate care in your comments.
I didn’t see the remark as insulting but it wasn’t addressed to me.
The state’s right or the judge’s prerogative to require a jury despite the defendant’s motion for a bench trial was something I didn’t know. Does it ever happen?
The only instance when I could conceive of a judge requiring that a jury be used is in a high-profile case where an elected judge might seek cover. The reasons that a defendant might demand to be tried without a jury would be strong appellate issues if a jury convicted.
When would a prosecutor ever demand a jury when the defendant wanted, and the judge allowed, a bench trial? Maybe if the judge was thought to have racial biases and there was a good chance that a neutral jury could be impaneled? I really can’t see a case where the risk of hostility of the judge and the probability of error on appeal would make that a smart trial strategy. Wouldn’t an appellate court presume that the prosecutor was counting on playing to the emotions and prejudices of a jury?
Ryan Sorry if my apology for my comments seemed to imply that anyone else’s comments were inconsiderate. That was thoughtless of me.
I liked your suggestions and thought they were very good. Ryan’s comment was a little terse for him, but he is about as untrollish as they come. This thread is mostly about lawyers and police behaving badly, so the lawyers like Ryan have been pretty patient all things considered. Don’t stop commenting.
Speaking of which, the PD I had in the beginning of the ordeal (the one you spoke to) is the county prosecutor now. I’m sure she’ll do better than the last guy, even if for no reason other than party affiliation.
Very sad, especially when combined with a situation where ambitious prosecutors looking to make a name for themselves in search of public office. The test ought to be whether they were just, not how many people were convicted. The system as it is encourages prosecutors to mold statistics to make themselves look good. All of the “statistics” who enter the system are presumed guilty first by virtue of entering the system, making any escapes look like failures to be minimized on the part of the justice system. But the fact is that truth is messy. It doesn’t like to conform to statistics.
Well, appropriately enough, I am engaged in that exact calculus, today.
I have a jury trial set for tomorrow, where defense counsel has indicated she would be okay with a court trial (what Ryan would call a “bench trial”). Since I haven’t done a court trial in at least 20 years, I am asking myself, “Should I do this?”
I would only object if I believe the assigned judge won’t be fair on these facts. But, I can’t see that happening with our judges or these facts.
As much as it is possible, a post about this experience would be fantastic. The difference between being tried by a “jury of peers” and a professional judge might give us some insight into the strengths and weaknesses of the system.
If defense moved for a court trial how could you articulate your reasons for opposing the motion?
Insightful question. Not sure I can answer it.
You’re exactly right, Dad Dog.
Goodness, Joseph, that was a lot to read into my comment. I wrote it on my phone, which tends to make for fewer words. You’re not incorrect at all in your assessment of the pitfalls of juries; it is something that gets discussed by attorneys all the time. When you poll a jury after trial, you’ll often be very surprised by what you hear.
On the other hand, polling a judge will often yield the same results. They are “professional jurists” inasmuch as they get paid for what they do, but they come with their own sets of preconceptions. I recently had 2 trials – the rulings were vastly different to the point that I was actually kind of shocked. I think that having a guaranteed right to a bench trial could potentially lead to more judge-shopping, but obviously venue-shopping still exists, as does (to a certain extent) jury-shopping at voir dire. Also, I cannot speak from personal experience, but I’d guess that requests for a bench trial are not often denied, which means the guaranteed right would probably not make much of a difference as a matter of practice.
The points you make about juries vs. judges are, of course, perfectly valid; I apologize if my brevity conveyed the wrong tone.
I think the other important consideration is that there are far fewer theatrics in a bench trial. With a jury trial, objections are often for show, or to slip in a counter-argument, or to disrupt an attorney’s flow. A judge is less likely to put up with that sort of thing, so as far as the lawyers are concerned, the bench trial is far more efficient. Also, you can generally stay seated instead of pacing the jury box…
As a defense attorney, I’d prefer a jury trial when there are more of the non-legal sorts of factors (knowing full well that I’m taking a gamble); so, if I have a highly sympathetic client or a situation where my only hope is that the jury will make a strange ruling in my favor.
In that sense, keep in mind that the prosecutor cannot request a bench trial, because with a good set of facts, he can generally take out the sympathy-element (so to speak). So, the concept of the bench trial is a tactic that seems like it would help the defense more than the state, since the defendant will always have to agree to it.
Right now, all of my trials (dependency, civil cases) are bench. The feel is completely different, but the rulings still vary wildly from judge to judge.
She seemed like a very nice woman. I’ll repeat it because it bears repeating. I have far more confidence in a prosecutor who has experience with defense, all else being equal (which it never is).
Not at all, Pilgrim. I know KP well enough to be relatively well assured that he takes my comments charitably. I wanted to make the point about sympathies. The left uses as its primary tactic the personification of difficult issues. So, here is the mexican immigrant who you’re sending home… we cannot do the same in reverse, because we tend to consider unforeseen consequences or long-term negative impacts. They can interview a person whose minimum wage might be raised to 15$, but we cannot interview the person who never got the job because a business started laying off employees.
That is why I caution against personal sympathies in discussions such as this one. I empathize greatly with KP’s situation; it was extremely difficult, and it is something he and his family are still working through (thankfully, they seem to be doing quite well). But I cannot consider it an indictment on the system as a whole, so analysis of our legal system still requires a certain cold detachment in order for us to be as honest and accurate as possible.
Really, it is an indictment on the system, because the system perpetrated the damage. When you are sending the illegal immigrant home, you did not create his problem. When you are arresting and imprisoning an innocent person in the justice system, you are creating his problem.
He concedes, and I agree, it’s not possible to avoid that ever happening. Of course it will. But I think someone already likened it to friendly fire deaths in war- they happen but “Hey, the system’s not perfect” is the wrong response.
But that is not true. There was an allegation that required following up on. It is that very system that we demand for true allegations, which causes problems for false allegations. There is no alternative in that instance.
Even when an innocent person is vindicated in the system it still costs literally thousands of dollars, reputation, social standing, months (if not years) of one’s life, etc. Not going to prison great, but there’s no mechanism in the system to even give back the money it drains from a person. And all this can happen without ever going to trial. The charges can be dropped after exactly a pound or more of flesh from an innocent. Your physical liberty is just the last thing the criminal justice system takes from you.
At the end a bunch of lawyers and society stand around the smoldering ruins of a life patting themselves on the back because the system worked. Work for whom?
I should apologize since I read too much into the reply. Thanks for clearing it up, and I’ll try not to be too jumpy in the future.
I don’t know how much study exists to backup my thesis, but my thesis is that juries are less accurate than professional jurists. Contrary to popular imagination, juries convict most of the time, and when considering acquittals, I suspect that their passions free a lot of the obviously guilty like O. J. Simpson. (Since the police always have the resources to frame a suspect with physical evidence, in the absence of direct evidence of framing, the suggestion that the police framed the accused is not reasonable doubt.) In short, if you are accused of a crime and are innocent, you want a bench trial. If you are guilty and can afford to mount a good defense, you want a jury. If you’re guilty and can’t mount a defense, you want a deal.
Why would a prosecutor refuse a bench trial? The prosecutor would refuse if the prosecutor doesn’t believe that a bench trial will return a conviction. Consider the Rodney King trial in federal court. I watched much of the state trial at the time, and I thought that the officers were obviously innocent. Apparently, as the link describes, despite the riots, the judge was strongly in favor of the defense. Given the public climate, the officers might have had a fairer hearing with a judge, but federal procedure forbid them from demanding a bench trial.
I think a big part of Kazinski’s argument is in this.
I suspect that if you have an absolute right to a jury trial, just as a defendant wouldn’t give a reason for wanting a jury, an entitled prosecutor wouldn’t give a reason. If you don’t have to demonstrate a need to assert the right, why would you bother?
I suspect that if a prosecutor had to give an honest reason, the reason would be that a jury would likely be easier to convince. (In the same way, if a guilty defendant had to give a reason for wanting a jury trial, the honest reason would be that a jury would be easier to fool.)
As an aside, since California also gives the state a right to a jury trial, I’d like to point out another failure of justice that might have been averted by a bench trial, the McMartin Preschool case. If you read the link, you get the impression that the professional jurists were generally more skeptical of the state’s case, which turns out to have been the correct reaction. No matter how preposterous the testimony, juries generally reacted emotionally to children on the stand.
I have limited space to comment, but I wanted to expand on the possible advantages of inquisitorial systems over adversarial systems. As the link describes, France uses a hybrid system where for serious crimes, an inquisitor investigates, and a case only goes to adversarial trial if the inquisitor approves. Here’s a quote from the article:
We could certainly incorporate some of these ideas into our justice system to improve both its accuracy and the allocation of resources. (If prosecutors don’t waste resources on clearly weak cases, they have more resources to reinforce strong cases.)
With my word limit, there’s not much room for nuance. The description might be simple, but my point was that in general, the description is correct. I am certainly working from the assumption that actual guilt or innocence bears strongly on the possibility of proving guilt, and I don’t think the assumption a problem.
As for the second point, there’s no obvious reason to treat the process and public reaction holistically. We already recognize that the processes and the public sentiment are properly separate when we frame cases as the people or the state versus the accused instead of the victim or the aggrieved versus the accused. I’m not saying that we have to ignore sentiment in making improvements to the system, but I think that we can treat public sentiment by separate remedies instead of tying the issue of public sentiment to the issue of the accuracy of the process as we discuss changes intended to improve the accuracy.
My last response treated your remark like justification for always preferring juries to jurists, but maybe you were just suggesting an alternative explanation for why a prosecutor might prefer a jury to a bench trial. While there might be other explanations, I don’t think that in the end, your explanation makes sense. Would a prosecutor who is duty-bound to bring only prosecutions against those believed to be guilty prefer a public defeat to a bench finding of guilt because the public finding would somehow be more quickly recognized as just? I doubt the conclusion for two reasons. First, if the prosecutor truly believes the accused to be guilty, a loss in any venue should seem inferior to a conviction. Second, the public doesn’t suspend its judgment because the verdict results from a particular process. The Simpson case is a perfect illustration of public rejection of a verdict of innocence. The Rosenburg case and the Mumia Abu-Jamal case are both examples of large segments of the public refusing to believe in someone’s very probable, almost irrefutable guilt after a jury process.
I apologize for the separate posts, but the word limits inhibit more comprehensive responses. Finally, I wanted to note that in many cases that I recall, the complaints about deviations from our exact processes come largely from attorneys themselves or other vested interests. Consider Lori Berenson. She was guilty. Her trial was consistent with international conventions and reasonable considering the Shining Path’s violent attacks on the judiciary and juries. Consider Amanda Knox. When you read the articles, comments on the cases conspicuously come mainly from American lawyers and reflect the American legal profession’s nitpicking preoccupation with process before accuracy. To me, attorneys seem like some of the most reactionary opponents of deviation from existing processes or reform of existing processes, and the public seems largely indifferent to the process as long as the results are accurate and the sentence is just.