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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
I was drawing a distinction that probably is more conceptual than real. The strength of the case that can be brought had better be highly correlated with actual guilt or innocence if the system works at all.
My implicit assumption was that the prosecutor believes in the case and his/her abilities to win in either forum. If it were clear that a bench trial would convict but a jury might not, the defense will be making the decision (for the jury).
I guess that I don’t agree with the assumption. I can’t imagine not seeing a difference between a pool of laymen and a professional jurist. I would expect at least some variation in levels of skepticism and intelligence.
I’ve been looking for instances of prosecutors rejecting requests for bench trials, but the search is difficult. I did find another link saying that Texas works like California and that you can only waive a jury trial with the consent of the state. So far, my research covers sixty million Americans at the state level and everyone at the federal level.
Some people have suggested that defendants don’t request bench trials often because bench trials wouldn’t be in their interest. While we’ve certainly been conditioned to think that juries are safer for defendants than trial by a professional jurist, I think that the real reason for the rarity of bench trials is that people often don’t have much choice. They’re stuck with a jury.
If states don’t reserve a right to force juries on defendants because juries are in the states’ interest, why do you think that we limit the right to waive a jury trial?
Criminal court judges in most states are elected. Not to put too fine a point on it; there are judges who are creditably believed to be anti-cop, anti-white, anti-incarceration and not very damn bright. No doubt there were, and may still be, judges humming Jump Jim Crow quietly to themselves and have the opposite biases. The courthouse crowd factors these perceptions into the plea offers and decisions regarding bench or jury.
To my certain knowledge, there was one judge (a black woman) who never had any docket problems in an otherwise jammed court because a soon as she came up on the blind-draw the defense attorney got a big grin and went over to the APA for a sweet, sweet deal. That would be one instance where an APA would demand a jury if no plea bargain whatever could resolve the matter.
It is somewhat better in federal district courts but even there politicians from the community select lawyers from the same community who share their world-view.
The pool of laymen is clearly a mixed bag but “professional jurist” presumes too much. This all has to get sorted out everyday with specific cases. Ryan M and Dad Dog could speak to this more reliably that I can.
I’ve seen this first hand when a judge at bail hearings ROR’d just about every thug that came before her that day but said to my friend Tara concerning bail reduction, “We wouldn’t even be here if you weren’t a while woman.”
I’m taking your point as a direct answer to my question about why a prosecutor might prefer a jury. Do you think that they don’t generally prefer the emotional advantage, too?
Certainly, there could be biased judges, but are they more of a problem than irrational juries? My sense is that in general, the bias of juries toward finding guilt is a much more serious problem than the bias of judges against the state. In any case, there is an important difference. Even now, there is a remedy against biased judges, removal at the next election. There is no remedy at all against biased juries, which are ad hoc creations and never subjected to any disciplining process.
As you note, courthouse communities know the temperament of the judges in the court, so in my plan, a defendant wouldn’t have to pick a bench trial in biased court. I’m mostly concerned about an aggregate phenomenon, the system’s accuracy in rendering verdicts over time, and secondarily concerned with ensuring that the innocent have access to the best possible option, and to my mind, the observation suggests at worst, modestly reforming the process for selecting judges along with allowing a right to a bench trial.
When you search on Google, if you browse the results, you find that lawyers consistently generalize about juries and judges in two ways.
1. Juries are much more easily swayed by emotion than judges.
2. Judges are prone to a kind of regression to the mean. Since many people coming to court are likely to have been guilty and since a judge will have seen every variation of lying, making of excuses, and pleading of special circumstances, a judge is unlikely to take a fresh look at your case.
When you remember that in theory, we impose a high burden of proof on the state because the state generally has grossly disproportionate resources to bring to bear against the individual, I think that these generalizations support my point about what you should want as a defendant. If you’re guilty and can afford a good defense, you should choose a jury trial. If you’re guilty and can’t afford a good defense, you can bet that the state will have the resources to put on a convincing show for a jury, and you should take a deal. If you are innocent, unless you’re in the rare situation of being able to closely match the state’s resources, you should choose a bench trial.
I don’t think that giving defendants the one, additional advantage of a choice will tilt the system in favor of the accused.
I wanted to make one more counterpoint about the motives of prosecutors in general. Maybe I’m overlooking something, but I can’t see any reason in particular to object to a change of venue, which is common practice. I believe that right now, Baltimore has ruled against a change of venue for the police in the Freddie Gray case. If the prosecutor believed her case to be strong, wouldn’t she be able to persuade a jury outside of Baltimore? Why would she resist a change of venue in the interest of fairness?
I think that the example of systemic resistance to change of venue is evidence in support of my point that prosecutors don’t play to a jury’s reason. They actually heavily rely on the emotional biases of juries.
Man, I am way out at the end of my string and Dad Dog, Ryan M and the other Rico-lawyers have abandoned me. I was a part of the courthouse crowd for several years a long time ago, in a place far away.
Venue is like home-field advantage. Why do some teams have a big difference in away game wins vs home game wins? Same with trials. Plus real differences in travel expenses, access to records and people on short notice, strange courthouse personnel etc.
My example of change of venue requests is common enough in media to recognize a pattern of resistance by prosecutors, but I don’t think that the reasonable request for a change of venue is common enough to justify a resistance on grounds of burdensome costs. How many genuine press cases exist? I would guess that maybe one per jurisdiction of 500,000 people per year occurs. (I currently live in Salt Lake City, and I know of no high-profile cases.) In any case, probably costs aren’t high in a lot of changes of venue. Take the Rodney King case. The venue was changed to Simi Valley, which is one county west of Los Angeles and less than an hour drive from downtown Los Angeles.
The idea of home-field advantage doesn’t rebut my objection to the current system. It supports my objection. Home-field advantage shouldn’t come into play in a serious determination of the facts of a case. Our constitution aimed to protect people from arbitrary government power, and I think that omitting a right to refuse a jury trial and the consequences of its possible passions and biases is an oversight.
By the way, I appreciate the discussion and don’t think of it as an argument. It’s more of a chance to refine the ideas and bounce them off other people. Thanks.