More about the machinery of criminal justice

One of my articles in WORLD Magazine’s May 27 issue, “Insider injustices,” cites a terrific book by Stephanos Bibas: The Machinery of Criminal Justice. I include here a few more quotations from the book, and summaries of its insights, that I didn’t have room for in the Magazine article.

Bibas shows how “this tug-of-war hurts criminal justice in many ways. It provokes voters to enact simplistic, crude laws. … Insider defense lawyers have strong interest in getting along with prosecutors and judges and disposing of their huge caseloads, particularly because most are overworked and underfunded. … Huge differences in education, language, class, race, and sex impede communication. Defendants distrust their appointed lawyers because they are not paying for them.”

He writes, “Just as managed care has pushed primary-care physicians toward six-minute appointments and pill-pushing, plea-bargaining machinery has pushed defense lawyers toward plea-pushing.” Furthermore “criminal procedure enables defendants to remain in denial.” A defendant can “plead guilty and receive a guilty plea discount; at most he need admit guilt only grudgingly. These equivocal guilty pleas deprive defendants, their families, victims, and the public of clear resolution. … Criminal procedure ignores many of the substantive justifications for punishment, such as educating defendants and the public and vindicating victims. … Mediation and other face-to-face interactions between victims and wrongdoers offer this hope.”

Bibas continues, “We cannot dynamite the entire machine and go back to lay-run criminal justice. The American criminal justice system could not handle its staggering caseloads that way.” Proposals to do better are on a spectrum running from the Due Process Model (fairness, rights, defendant autonomy, freeing the innocent) to the Crime Control Model (law-and-order, speed, cost, finality, efficiency). Three movements—victims’ rights, restorative justice, and therapeutic jurisprudence—offer valuable insights but the first may be unbalanced and vengeful, the second may be unbalanced in the opposite way, and the third has “a reluctance to blame and speak moral language.”

Restorative justice is fine for minor crimes with low stakes and lesser blameworthiness, but what about serious offenses? Restoration does not substitute for punishment, does little to incapacitate dangerous wrongdoers, and undercuts deterrence, particularly if the penalty is just paying back stolen money and apologizing. Softness may increase fears, when victims realize wrongdoers will not be safely behind bars for a while.

We often don’t know the history of crime and punishment in America. Hangings in America were rare (except, to our shame, in the South when slaves rebelled): “Though in England hangings degenerated into ghoulish merriment, [in America] they were well-behaved, orderly, somber, and dramatic rituals.” Slavery was a great blot. North Carolina executed at least 100 slaves between 1748 and 1772, far more than the number of whites executed there during all of the colony’s history. Virginia executed 555 slaves between 1706 and 1784.

Quakers emphasized imprisonment, pioneering with the 1829 Eastern State Penitentiary (also called Cherry Hill): “Each prisoner remained in solitary confinement, separate from one another and in complete silence. The experiment was inspired by Enlightenment and Quaker faith in human nature. If each man was kept in silence, with only a Bible as his companion, his inner light or reason would supposedly convict his conscience and lead him to repent and reform.” But, “penitentiaries did not breed penitence.” Some prisoners kept alone went insane or killed themselves. Solitary confinement was expensive.

“Once prisoners talked and bunked together, prison became a school for crime,” writes Bibas. Later in the 19th century an emphasis on rehabilitation grew, but prisons failed at reform. Shaming and beating seemed nasty, and there was no obvious alternative. Americans understood the importance of work, but prison labor went out of style between 1870 and 1940, as unions and small businesses opposed competition. As Bibas notes, only about 10 percent of state prisoners and 17 percent of federal prisoners work, and “many prisoners waste their days in mind-numbing idleness, watching television or killing time.”

Defendants are not paying anything, free advice seems worth what they pay for it, and they see their lawyers as shills for prosecutors’ deals.

Five problems stand out: collaboration of prosecutors and defense counsel, quantification (truth or falsehood become less important than bargaining chips), hiddenness, insulation (outsiders have little say), and amorality (truth devalued, processing of cases emphasized, justice becomes not a morality play but a game). Now, a tug-of-war leads to a downward spiral: “Insiders manipulate criminal laws, outsiders episodically restrict them, insiders subvert these structures, outsiders retaliate with new mandates.”

Furthermore, victims now are frustrated. Rarely do they receive notice of pleas, sentencing, or parole hearings. Meanwhile, poor defendants often distrust lawyers. Defendants are not paying anything, free advice seems worth what they pay for it, and they see their lawyers as shills for prosecutors’ deals. Because they distrust appointed counsel, defendants are less likely to heed their advice. Overburdened defense lawyers press clients to plead guilty, and defendants suspect their lawyers aren’t willing to fight for them, so defendants falsely deny guilt to lawyers, and lawyers come to distrust most of what their clients say.

We need to move from idle imprisonment to work, but that means overcoming opposition by unions and small businesses. Work makes people feel human and gives people a chance to accomplish something. How about offering wages close to the minimum, with one-fourth going to government, one-fourth to victims, one-fourth to inmates’ families, and one-fourth to inmates themselves? Now, prison cuts people off from families. Prisoners who do not maintain family relationships are much more likely to reoffend. Marriage may reduce recidivism by 35 percent.