The Machinery of Criminal Justice #5: Returning Power to the Public in a Lawyer-Driven System

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 as unrealistic given massive caseloads.

Still other critics assume, wrongly, that if the public supported any workable reforms, politicians would already have implemented them. But we must start where we can and not let pessimism paralyze us.

In the book, I suggest a range of possible solutions, including making prisoners work (even perhaps in the military) to repay their victims, families, and society and making it easier for them to find housing and jobs upon release. I propose abolishing the most dishonest forms of plea bargaining, particularly pleas in which defendants proclaim innocence or stay silent and those in which prosecutors downgrade the true charges. In today’s post, I’d like to focus on micro-level solutions to include victims more fully in individual cases.

The first step is to give victims better information about their cases. While most states have some victims’ rights law on the books, enforcement is uneven and many victims don’t receive notice. Dedicated officials, such as victim/witness coordinators, help to increase contact with victims and keep tabs on the progress of cases. Automatic email and telephone notices could keep them informed about upcoming court hearings.

Victims could also be allowed to speak at sentencing, instead of submitting perfunctory letters. They could also speak with, question, and respond to defendants and lawyers at trials and at plea and sentencing hearings.

The hardest questions involve what kind of voice victims should have over the course of the prosecution. The trick is to strike a middle path between letting victims hold the system hostage or making their participation hollow. The community’s shared sense of justice should control, but victims provide important information about the harms they have suffered. The public wants to hear what victims have to say and what they need in order to heal, but it should check that reaction with its own sense of justice.

First, prosecutors should provide timely notice of upcoming decisions, such as charges and plea offers. Second, they must affirmatively solicit victims’ views, in plenty of time to influence decisions. Third, prosecutors should have to articulate reasons for their decisions, much as judges do. For major decisions, they should do so in writing; for minor or routine ones, a checklist or oral statement could suffice.

Fifth, victims ought to have the time and opportunity to appeal major felony decisions to a prosecutor’s supervisor, even by email, phone, or a ten-minute conversation. If line prosecutors knew that victims could appeal to their supervisors, line prosecutors would listen more respectfully and be careful to justify any contrary decisions.

Finally, victims (as well as judges, fellow prosecutors and police, probation officers, and even defense lawyers and defendants) should have avenues to leave feedback on police and prosecutors’ performance. Even an eBay-style feedback loop would illuminate and check professionals’ decisions, and it could influence pay and promotions. Soliciting victims’ feedback would empower them and send the message that the system cares about their views. Corporations routinely survey customers and solicit feedback so they can continually improve their customer service; government agencies have been slow to do the same.

Of course, victim involvement works only where one can identify a victim. More than a third of arrests are for drug crimes, and one-ninth are for public-order offenses, such as weapons and driving-related offenses. But not all drug and public-order offenses are truly victimless: think of crack houses that blight neighborhoods or armed criminals who terrorize communities.

Where even indirect victims are absent, that very absence should weigh against aggressive enforcement. That would reshape drug enforcement away from racking up easy buys and busts toward the subset of crimes that indirectly harm neighborhoods. More of a focus on victim input would mean more focused enforcement of so-called victimless crimes and more emphasis on classic violent and property crimes.

So, that’s just a sampling of the book’s diagnosis and remedies for what ails American criminal justice. In my final post late today or tomorrow, I’ll respond to some objections, most notably fears of inequality, vengeful victims, and unprofessionalism. Each concern, I’ll suggest, is legitimate but manageable.