Rethinking the system

Stephanos Bibas is a U.S. Court of Appeals judge for the 3rd Circuit, which has jurisdiction over cases in Pennsylvania, New Jersey, and Delaware. Born in New York City, he graduated from high school at 15 and from Columbia University at 19 with a Bachelor of Arts in political theory, summa cum laude.

Bibas then studied at Oxford, won a first-place award in the world debate championships, and graduated from Yale Law School in 1994. He clerked for Supreme Court Justice Anthony Kennedy and became an assistant U.S. attorney, then a professor at the University of Pennsylvania Law School from 2006 to 2017.

Which is harder—being a judge on the 3rd Circuit, or arbitrating arguments among your four children? Definitely being a dad of multiple kids: The appearance of the slightest bit of unfairness about bedtimes or dividing Tater Tots can backfire. Once I can satisfy all of them, dealing with lawyers is a piece of cake.

You’re a brown belt in taekwondo. How does that help you now as a judge? Discipline. Much of martial arts is mental. It’s about learning from people who know more than you do, and disciplining your body, mind, breathing, attention, and focus. Those traits stand you in good stead whatever professional road you take.

In the first 11 pages of your recent book, The Machinery of Criminal Justice, you use the words moral or morality or amorality 28 times. Those words are rare in discussions of criminal justice these days where it’s much more “put people in the slammer” or “reduce the number of years.” Why do you emphasize questions of morality? How you think about the point of criminal justice is important. For centuries, ordinary people have understood that criminal justice is figuring out who did it, blaming people appropriately, punishing them with appropriate consequences, then healing the wrong or the wound. People have a misunderstanding about the past. Only a small sliver of people wound up getting executed or exiled or branded. Most people had a short-term punishment, and often they would admit or confess what the crime was. “I stole the pig,” or sometimes they say, “No, that was my pig, I just lent it to you.” Nowadays we talk about controlling crime, public safety, processing cases.

What’s the problem with that? It misses the way nonlawyers understand the point, and the way we talk about justice with our own kids when we discipline them. Are we doing it merely to stop the naughty behavior? No, we’re doing it to teach lessons. We’re doing it to vindicate the injured sibling. We’re doing it to restore order in the family. I don’t mean to say we can just reduce the polity to a family model, but there is something deeply intuitive about justice dealing with right and wrong.

Judges are supposed to be teachers. Sometimes the judge, pronouncing a sentence, talks about what the victim endured. The defendant may sob, or apologize. The defendant’s family may be there. Sometimes that’s done in a way that is cathartic and vindicating. Sometimes it’s done in a very mathematical, bureaucratic way that gets the case off the table without any moral judgment.

TV dramas or movies have dramatic moments of revelation. That’s not the way it is in 90-plus percent of cases, right? Right. If you just watch crime dramas, you might think the name of the game is about the victim and the defendant, or in a civil case, the plaintiff and the defendant, coming into court, telling their stories, pointing the finger. My students came into law school thinking that. Then they start thinking it’s really about the prosecutor and the defense lawyer standing up, showing off their rhetoric, making their legal points, dueling. Then, if they become a prosecutor or public defender, they discover it’s not dueling at trial: The reality is 95 percent of criminal defendants plead guilty.

Too much plea bargaining? The plea bargains are hurried conversations in a hallway or a conference call. The judge is absent, the victim is absent, the defendant is usually absent. It’s horse-trading then presented to the judge as a fait accompli. That bypasses the central morality play understanding of the trial as vindicating, as catharsis, as healing.

Let’s go back a couple of centuries. How did the morality play typically work in courtrooms? In a routine criminal case, victims would prosecute their own cases, with no lawyer on the defense side. Defendants would stand up and argue their cases. Almost no rules of evidence or procedure. The parties would shout it out, 20 minutes, 30 minutes. Jury members would huddle in the jury box. They wouldn’t have fancy legal instructions. They would decide who was right, who was wrong. Most punishments were temporary affairs: Pay back the money, fix up the bar you vandalized, or be shamed in the public square.

As in The Scarlet Letter? Readers focus on how judgmental and humiliating it is—but Hester Prynne goes back to living in her community. A whole genre of sermons at public events emphasized “but for the grace of God you could do the same thing as this person did by getting drunk.” There wasn’t this us-versus-them mentality. Onlookers were to think, “I do things like this too. I may not have cheated on my wife, but I’ve lusted in my heart.” It was an occasion for all of us to examine our consciences.

Our tendency now is to look back at those old times and say we are much more sophisticated and thorough. You have a different vantage point. Public prosecutors and defense lawyers increasingly look over a large share of the cases, with rules of evidence and procedure. They slowed things down. Jury trials started taking longer. That may have increased the fairness of some proceedings, but there’s a cost. The jury trial takes longer, so the judge and the prosecutor want to get the case over with. They short-circuit the jury trials and they plea-bargain, which from the point of view of lawyers makes sense: Defendant gets a lower punishment, prosecutor gets to prosecute more cases.

But the downside is … You don’t get your day in court. You don’t see justice done. So, you get a series of victims saying, “Hey, what happened to my case?” You get defendants who say, “But I wanted to explain.” Usually the case just goes away. The public doesn’t see justice done and wonders what these lawyers are doing: Bargaining? Sweetheart deals? Whether the system is fair or unfair as it operates, it certainly isn’t seen as fair and accountable, the way it should be in a democracy.

How bad is plea bargaining? When we pressure people and say, “If you go to trial, maybe you’ll have a 10-year sentence or a 20-year sentence, but we can give you half that or less than that if you take this plea,” the pressures are such that sometimes even people who might not be guilty can be tempted sometimes to take the plea, especially if they’re mentally ill or juveniles or don’t speak English well. There are some especially vulnerable populations we ought to be worrying more about.

I’ve seen how bad the public defender system, for the most part, is. Right. I’m not accusing public defenders of ill will, but with 200, maybe 400 cases at a time, maybe the first time you meet your client is in a holding cell at the courthouse. You say, “Hi, I’m your lawyer, the prosecution has made this offer, I recommend that you take it.” That’s called “meet them and plead them lawyering.” It’s very common. Imagine what your relationship with your lawyer will be if the first time you meet him, he’s trying to pressure you to plead guilty.

And lots of lawyers—like lots of social workers with huge caseloads, and doctors who can spend only a few minutes with patients—are frustrated. We measure quantity, so we rush through cases—including cases where the accused may have been innocent.

Is it more humane to put a person in stocks for several hours or to lock up a person in prison for several years? In Philadelphia, I live a few blocks from the Eastern State Penitentiary that opened around 1830. The idea, very idealistic, was if you lock someone in solitude with a Bible, his conscience will convict him. You pulled him out of his bad environment, he’ll turn his life around. The reality is out of sight, out of mind. We don’t see the suffering of the people in prison, but we’ve torn them away from their families, jobs, homes, communities. We’ve deprived people of husbands and fathers and created a semi-permanent underclass of ex-cons. They’ve spent time in prison networking with other criminals. It may look like it’s humane because we don’t see the suffering that’s in prison, but it devastates people’s lives in lots of ways. Prison life is TV punctuated by stabbings and rapes.

‘The plea bargains are hurried conversations in a hallway or a conference call. … That bypasses the central morality play understanding of the trial as vindicating, as catharsis, as healing.’

What other type of biting punishment could there be besides long prison sentences? Having to face someone in front of your community and apologize can be embarrassing: In a very low-level crime, that itself can be enough. Shame sometimes can be constructive. We need to experiment with other punishments used in the Colonial era: not flogging or stocks or indiscriminate use of the death penalty, but we ought to think more about what feeds the needs of the victims.

Let’s say someone has stolen several thousand dollars’ worth of electronic equipment from a victim’s home. What would be an appropriate punishment? We have become enamored with rules, but we ought to think about trusting a sentencing jury to make more individualized determinations. The jury gets to hear the story of how the crime happened, how has this person suffered, how dangerous is this defendant, how much do we worry about this person. With some defendants, we’re scared enough that we need to send them away for a while. Others we need to send away but also make sure they get drug or alcohol treatment or take their mental illness medications. As we’re doing that, can that person make some restitution by working, apologizing, doing something at least partly productive?

I’ve interviewed prison inmates who say they’d prefer capital punishment to spending the next 40 years there. Many of the early prison reformers emphasized teaching good habits and offering productive work—but a combination of small business and labor interests in the late 19th century and early 20th century squeezed out prison labor because it undercut free labor. Prisoners might make license plates or work in the cafeteria, but very few have the opportunity to earn any money, learn any marketable skills, or do anything they’ll be able to do when they get back on the outside.

We’re hearing a lot now about “restorative justice.” That’s the idea that we bring offenders and victims together in a conference: People tell their stories, the offenders apologize, and that’s that. Restorative justice makes sense, but as a substitute for unequivocal condemnation and some kind of biting punishment, it goes off the rails.

What about the victims’ rights movement? Victims do deserve to be heard, but sometimes that movement demands the maximum possible sentences. Victims are often satisfied with less than the maximum, especially if they hear, “This person isn’t stalking me anymore, I was just an accidental target of opportunity.” Victims want some punishment, an apology, and maybe some restitution to pay their medical bills. Restorative justice is often on the left, victims’ rights on the right: Maybe we can fit together some of these insights in a way that’s nonideological and cross-partisan.

What’s the top priority in trying to transform the justice system? The system is deaf. Opening up the process, and letting the victims and the defendants and the juries see more of it, will force the lawyers to listen to the nonlawyers more. As a Christian I know that all these parties are made in the image and likeness of God. That’s what’s motivates me. I can treat even the most depraved, heinous murderer as having that image and likeness of God inside him. Some people will never turn their lives around, but others will respond.