Author Archive | Stephanos Bibas (University of Pennsylvania), guest-blogging

In the past week’s posts about my new book, I’ve sketched out some of the hidden costs of professionalizing our system and suggested ways in which we might deliberately slow down our speedy, impersonal assembly-line justice. This set of posts has focused on one aspect: giving victims larger roles. (The book offers an even more radical proposal for turning sentencing back into a victim- and defendant-centered morality play, which I call restorative sentencing juries, but I can’t go into that here.)

Naturally, including victims gives rise to various fears. Today I’ll discuss three such fears: vengefulness, inequality, and unprofessionalism. Each set of concerns is legitimate, but manageable if not overblown.

First, we tend to assume that victims thirst for revenge. Give victims power, one might think, and they will simply take it out of defendants’ hides. To this way of thinking, criminal justice is a zero-sum game, and making victims happier necessarily comes at the expense of defendants, tilting the playing field against them.

But contrary to what one might expect, victims are not reflexively punitive. Empirical studies find that participation by victims does not lead to harsher sentences. Thus, giving victims voices in the process need not produce harsher outcomes, particularly because plenty of safeguards would remain. A neutral judge or jury would have to authorize any conviction or punishment and would weigh the victim’s input against the defendant’s and all the other evidence. A prosecutor would still be able to override a victim’s vengeful, selfish, or otherwise unbalanced requests.

What victims care about is not so much the substantive outcome as whether they are treated fairly and respectfully along the way, including whether they are listened to and taken seriously. Keeping victims informed, letting them speak, and giving them their day in court makes them more [...]

In this week’s guest-blog posts on my new book, I’ve explored just a few of the ways in which our criminal justice machine has drifted far from its moral roots. Today I want to summarize the range of problems and offer just a couple of possible solutions, though the book goes into many more.

Lawyers’ bottom-line, cost-benefit approach has brought many undoubted benefits, including efficient case processing and thus crime control. Those goods do indeed matter greatly to ordinary citizens. But criminal justice ought to serve more than this single goal to which it has been boiled down.

The machinery’s relentless pursuit of mechanistic efficiency has slighted the downsides: It disempowers victims, defendants, and the public. It cheapens justice into a marketable commodity, a fungible widget to be mass-produced. It eschews the rhetoric of moral judgment in favor of legalese and mathematical gobbledygook.

It also hides the workings of the system, leaving outsiders frustrated and mistrustful and insiders free to indulge their self-interests or idiosyncratic preferences. It exacerbates the cycle of pathological politics of crime legislation, helping to provoke draconian referenda in response and later dishonest subversion of those populist measures.

In addition, the machine neglects remorse, apology, forgiveness, healing of relationships, reintegration, and reentry. It creates a semi-permanent underclass of prisoners and ex-cons in exile. It hollows out large swaths of minority neighborhoods. And it deprives countless children of their fathers and women of their husbands and boyfriends, with little hope that these men will return to lives of lawful work and responsible fatherhood.

Whew! That’s a daunting list of problems. It is immensely difficult to reform a system as broken as our punishment factory. Skeptics can dismiss incremental reforms as cosmetic, like straightening deck chairs on the Titanic. More ambitious reforms get attacked from the other side [...]

In yesterday’s guest-blog post on my new book, I explored the gulf between criminal-justice insiders and outsiders, the lawyers and laymen who see criminal justice very differently. The book explores in detail some of the human needs that criminal justice professionals overlook, such as the thirst for remorse, apology, forgiveness, and reconciliation. Today I’ll suggest that the root problem is the state’s monopoly on criminal justice, and solutions have to involve giving greater roles to victims.

Today, the right to punish belongs exclusively to the state, not the victim. Crimes violate the state’s laws and its interest in maintaining public order and social cohesion. The state does not settle for restitution and fines, as private litigants do, but imprisons and even executes wrongdoers. It exacts its justice quickly and impersonally to lock up the dangerous criminal and to deter him and others. All that seems to matter is the bottom-line number of years in prison and, to an extent, accuracy in discerning guilt.

The state-centered model assumes that cold reason should dominate criminal-justice decisions and exclude human emotions. But the cool logic of state-monopolized justice, to the exclusion of victims, conflicts with many people’s moral intuitions.

Why should the right to punish belong exclusively to the state? Disputes aren’t simply impersonal red flags that alert the government to dangerous threats. They wrong both the state and the victims. Crime has a human face, and that face deserves standing and a say in the matter. The victim or his representative seems naturally to deserve at least a partial right to pay back the wrongdoer.

That is a big part of why victims’ rights laws have proven so popular (though, as the book explains, they haven’t lived up to their promise and have often been hijacked by tough-on-crime groups such as [...]

In yesterday’s guest-blog post on my new book, I discussed some of the ways in which criminal justice developed from a common-sense morality play into a professionalized machine during the nineteenth and twentieth centuries. Now I want to describe what the gulf between criminal justice insiders and outsiders looks like today; offer a few examples of the tug of war that erupts between the two sides; and explain some of the hidden costs of this gulf.

By insiders, I mean the lawyers and other professionals who run the machinery of criminal justice: the prosecutors, police, probation officers, judges, and even defense counsel. They are knowledgeable about investigations, crimes, and punishments. Back when jury trials were common, insiders were primarily adversaries, but now both sides’ lawyers collaborate in plea bargaining; cynics might even call it collusion.

Though prosecutors and police are nominally agents of the outsiders whom they supposedly represent — victims and the public — outsiders lack the knowledge and leverage to effectively oversee how insiders do their jobs. Insiders tend to mellow over time, and their practical concerns about huge dockets and fear of losing trials (risk aversion) make them especially pliable in plea bargaining. Finally, as lawyers, insiders are taught to weigh costs against benefits, focusing on neutral, amoral criteria such as speed and cost.

Outsiders see the system quite differently. They see little of police enforcement decisions, plea-bargaining conversations in courtroom hallways, or secret grand jury proceedings, and receive little notice or information even about proceedings that are public. Sensational media accounts and crime dramas lead the public to imagine that sentences are lighter than they actually are. In addition, victims and members of the public have few opportunities to participate and have their day in court, or even to see what’s going on. Finally, outsiders [...]