Insider injustices

Liberals and conservatives both say our prison system costs too much. That’s true, but the real problem is not their expense in dollars but their cost in time, spiritual loss, and family destruction.

The tragedy of American criminal justice parallels the tragedy of American poverty-fighting. We used to fight poverty with challenging, personal, and spiritual help. Now, an impersonal and amoral welfare system helps the poor to stay poor. Similarly, law professor Stephanos Bibas writes in The Machinery of Criminal Justice, “Criminal justice used to be individualized, moral, transparent, and participatory but has become impersonal, amoral, hidden, and insulated from people.”

Now, insiders (lawyers, judges, police, and probation and parole officers) strike plea bargains to dispose of cases quickly. They excommunicate outsiders—victims, members of the public, even defendants. Bibas, a thoughtful Christian at the University of Pennsylvania, contends, “At the individual, retail level, outsiders’ judgments are far more nuanced and less harsh overall, [but] the abstract, wholesale perspective has largely supplanted the contextualized, retail one.”

The result is familiar to those who have studied “public choice” theory or seen how bureaucracy repeatedly frustrates reformers: “Insiders manipulate substantive and low-visibility procedures to dispose of cases as they like. Outsiders try to constrain insiders by changing substantive policy, say by creating new crimes and sentences. Insiders then subvert these constraints procedurally, and so on. Because insiders are better informed and continually involved, outsiders find it hard to win enduring victories but are periodically provoked to rise up in outrage.”

You can read more about the present in this issue of WORLD. Here I’ll bring you a bit from the past. In early America trials were brief, open to the public, and held locally. Jury members could question witnesses. Victims and the accused told their stories. Jurors considered prior records; judges who thought jurors had done wrong could give pardons, but were unlikely to extend mercy to the accused who had been violent, made threats, or pointed weapons.

The good old days had problems. Dominant punishments were fines and humiliation, with those found guilty placed in stocks that constrained their arms and legs. We don’t want that, but years in prison are not a solution. Bibas shows how colonial justice was lenient in practice because criminal procedure left plenty of room for mercy: “The point was not to ostracize and demonize wrongdoers, but to recognize one’s own sins too.”

High-school students for generations have read Nathaniel Hawthorne’s The Scarlet Letter, which emphasized the problem with moralistic approaches, but Bibas notes some advantages: “The colonists recognized that everyone was weak, so anyone of any social class could succumb to temptation and crime. An erring criminal was a sinner just like everyone else. … Most wrongdoers, then, were viewed as brothers whom fellow citizens should help up again after their falls. The job of the criminal justice system was to reclaim the errant sheep and reintegrate them into the flock.”

Bibas probed Massachusetts records and found many examples of how this restorative justice worked: “At least 67 criminal convicts who lived in Middlesex County between 1650 and 1686 were reintegrated into society in documented ways. … Nine of ten convicted women went on to marry, suggesting that they were able to live down their shame and move on.” Ex-offenders became governmental officials, militia officers, and church elders.

Again, let’s not overpraise the good old days. Racism left some without any justice. Trials were spectacles, the soap operas of their day—but they did educate citizens about crime and increase public confidence that justice for many prevailed. Tragedies spring from good intentions: 19th-century humanitarian reformers ended up prolonging punishment and making it less effective as they created venues where, in Charles Dickens’ words, prisoners were “buried alive … in horrible despair.”

We can learn from the past what doesn’t work. We’ve learned that penitentiaries by themselves don’t make people penitent, prisons are often schools for crime, and public defenders (given the number of cases) don’t offer much defense.

–Read feature stories on criminal justice reform in this issue of WORLD: "New convictions" / "Ready for reform"

Bibas in Rebooting Justice, a book to be published on July 25, proposes empowering the outsiders. He and co-author Benjamin Barton show how we could simplify and clarify the process in most cases so litigants, guided by trained paralegals, court clerks, and online programs, could proceed effectively without a lawyer. That would allow more resources to be thrown into felony cases, where those who cannot afford a lawyer need the most help.

Our articles in this issue just scratch the surface. We’ll come back to these questions down the road, in keeping with the frequent Biblical injunctions to help widows, orphans, aliens, and prisoners.