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Is the Criminal Justice System Defensible?

A debate between Judge Harvie Wilkinson III and Stephen Bright.

This summer, Judge J. Harvie Wilkinson III of the Fourth U.S. Circuit Court of Appeals published in the Vanderbilt Law Review what he called a “spirited defense” of the American criminal justice system, which he believes is “doing remarkably well” despite its flaws. Since much of the focus of The Marshall Project will be to explore the flaws and successes of that very system, we wanted to invite Wilkinson, an appointee of President Ronald Reagan, to debate his thesis with Stephen Bright, one of America’s leading criminal justice scholars and reform advocates. Bright is a lecturer at the Yale Law School and the president of the Southern Center for Human Rights.

The first word goes to Wilkinson, who told us this summer via email that he “sees much value in the practice of plea bargaining, much wisdom in the reliance upon prosecutorial discretion, and much to respect in the manner in which the accused are represented in our system.” He says he “finds much to praise in the democratic features of our system, including the role of the petit jury the primacy of the legislature in defining crimes and punishments, and the measured participation of the electorate in selecting state court judges.” And he made sure to tell us that he “deplores finally the relentless tendency to cast the American criminal justice system as a scapegoat for the many difficulties afflicting our least fortunate citizens.” In the introduction to his Vanderbilt article, titled “In Defense of American Criminal Justice,” he explained the genesis of his defense:

Judge J. Harvie Wilkinson III
Judge J. Harvie Wilkinson III Fourth U.S. Circuit Court of Appeals

The American criminal justice system is on trial. A chorus of commentators – often but not exclusively in the legal academy – has leveled a sharp indictment of criminal process in our country. The indictment charges that large flaws infect nearly every stage of the adjudicatory process. And the prescriptions are equally far reaching, with calls for abolition of many current practices and an overhaul of the entire system. What is more, the critics issue their condemnations essentially as givens, often claiming that all reasonable people could not help but agree that fair treatment of the accused has been fatally compromised. For these critics, “We live in a time of sharply decreasing faith in the criminal justice system.”

As a judge with faith in that system, I am dismayed by the relentless insistence that we have it all wrong. Of course the system, like all human institutions, has its share of flaws. But the attacks have overshadowed what is good about the system and crowded out more measured calls for reform. The critics claim that major aspects of American criminal justice work to the detriment of defendants, when actually the reverse is often true. It is time for a more balanced view of our criminal process, which in fact gets a lot of things right….

My own reaction to the critics is one of gratitude for their contributions but dismay that they have allowed the pursuit of perfection in criminal justice to become the enemy of the good. Much about American criminal justice is indeed good. The system provides considerable protections for the accused and sets proper limits on the brutality and deceit that human beings can inflict upon each other.

Simply put, in calling for an overhaul of our criminal law and procedure, the critics1 have failed to appreciate the careful balance our criminal justice system strikes between competing rights and values. They have failed to respect the benefits of the system’s front-end features – namely, early process and early resolution. Moreover, they have sold short the democratic virtues of our system. The sensible trade-offs reflected in American criminal justice are worthy of respect, and the system’s democratic tilt is deserving of praise. The critics have extended neither. Ultimately, the often harsh tone of their indictment has done an injustice to the system of criminal justice itself.

critics1Among these critics is U.S. District Judge Jed Rakoff, who just published in The New York Review of Books a trenchant critique of the pervasive use of plea deals.
Andrew Cohen
Andrew Cohen Commentary Editor

Our criminal justice systems, Wilkinson wrote, are essentially as fair and as just as we, the people, want it to be and that’s a good thing. “The great strength of the system is that it ensures that many of the most contestable choices are made democratically, and not imposed by elites who operate outside the political arena and whose perspective, while valuable, has slipped too uncritically into a collective one-sidedness,” he argued and then cited the spate of wrongful convictions we see as proof that the balance imposed by “the people” is not necessarily where advocates and reformers would like it to be:

Judge J. Harvie Wilkinson III
Judge J. Harvie Wilkinson III Fourth U.S. Circuit Court of Appeals

I do not deny the existence of mistaken eyewitness identifications and unreliable confessions. And I of course support the efforts of legislatures, law-enforcement agencies, and the criminal defense bar to enhance the accuracy and reliability of such evidence. Photo lineups in particular need some tightening up, with blind lineups — where the officer directing the lineup is not aware of the suspect’s identity — being a frequently suggested improvement. But the critics’ proposed solutions — a significant increase in cumbersome pretrial hearings and the outright exclusion of relevant evidence — go too far. Our criminal justice system does not attempt to avoid wrongful convictions at all costs, but rather balances this imperative against the need to protect public safety by punishing people who commit crimes.

Andrew Cohen
Andrew Cohen Commentary Editor

This balance, Wilkinson wrote, applies as well to prosecutorial discretion, plea bargaining, and the constitutional right to counsel. No defendant, he asserted, is entitled as a matter of law to a perfect defense, offered by an unhurried attorney with the same time, resources, and expertise that may be brought to bear by prosecutors. In Wilkinson’s view, the eternal struggle over indigent defense in this country, the battle over how badly a lawyer may behave before, during, or after a trial to be declared “ineffective,” is somewhat overwrought. “The case has simply not been made, moreover, that the quality of defense counsel in this country is either generally poor or responsible for wholesale miscarriages of justice that the criminal justice system itself is powerless to correct.” That is the theme of the judge’s defense of criminal justice in America — its critics accentuate the negative, discount the positive, and undermine the system’s ability to reform itself. “For the life of me,” Wilkinson wrote, “I cannot see how this bleak picture accords with reality. Whatever problems our system has, it cannot be as bad as all that.”

But it is that bad, Bright has been arguing, for decades, mainly on behalf of those people left entirely out of Wilkinson’s survey of criminal justice. To Bright, the judge is describing a criminal justice system that simply does not exist. Yes, Bright contends, there are components of criminal justice systems that are and ought to be tracked by democratic principles. But the Bill of Rights was designed to guarantee individual rights in need of protection from the caprices of the majority. And everywhere, Bright asserts, America’s judges, lawyers, and politicians are failing to ensure those rights are recognized with remedies that address the mistakes built into the system. In Bright’s view, the degree of bleakness in our criminal justice system depends greatly on the color of a person’s skin, the size of their pocketbook, and random chance — a level of arbitrariness that undermines the rule of law beyond recognition. In response to the judge’s article, Bright writes:

Stephen Bright
Stephen Bright Lecturer at the Yale Law School and the president of the Southern Center for Human Rights

… [The judge] does not get below the surface and deal with the day-to-day unfair treatment of the poor and racial minorities in the state and municipal courts, which handle about 95 percent of criminal cases. Instead, he focuses primarily on the federal courts, which handle the other 5 percent and employs generalizations, rationalizations, legal fictions, and what he characterizes as “trade-offs” to suggest that the system is worthy of celebration and praise. He says at the end of his first section, “it cannot be as bad as all that.” If he would spend time in the courts that handle the vast majority of cases, he would see that is it far worse than the “indictment” he summarizes in that section. He seems to think that many of the critics are academics, but my criticisms have been and are based largely on being in the state criminal courts for 40 years and seeing the kind of representation people receive; reading hundreds of transcripts of capital trials where, among other things, I saw lawyers refer to their clients with a racial slurs, one lawyer held in contempt and sent to jail for being drunk during trial (the trial resumed the next day when he and his client were brought to the courtroom from the jail), lawyers who knew absolutely no law, lawyers who knew nothing about their clients, and many lawyers who provided only perfunctory representation…

Judge Wilkinson dismisses even the conviction of innocent people as inevitable and part of the necessary “trade-offs.” This reminds one of Justice [Lewis] Powell’s statements in McCleskey v. Kemp2 that racial disparities are an “inevitable” feature of the criminal justice system. Neither is inevitable and both should be recognized as abhorrent to any system that even pretends to be about equality and justice. But accepting them as inevitable guarantees that they will continue to fester and corrupt the system. His answer to wrongful convictions is “rigorous adversarial testing,” but he mostly glosses over the fact that there is no adversarial testing in the cases of many poor people because they lack competent legal representation and the resources for investigating the prosecution’s case, consulting with experts, and mounting a defense. He does not acknowledge that innocent people plead guilty to get out of jail on minor crimes — leaving them with a record that will haunt them the rest of their lives. Or, that in more serious cases, innocent people plead guilty because of the threat that they will spend the rest of their lives in prison if they do not take the prosecution’s plea offer to several years in prison, or that they may be sentenced to death and executed if they don’t take an offer and accept a sentence less than death.

McCleskey v. Kemp2In McCleskey v. Kemp, the Supreme Court rejected a challenge to Georgia's death penalty regime that showed racial disparities in capital cases.

No one disagrees with the proposition that cases should be resolved at the outset, soon after arrest, as opposed to years later in post-conviction review as Judge Wilkinson advocates. But that is exactly what happens with the plea bargains that result in 95 percent of state court convictions and 97 percent of federal court convictions. This is all the “criminal justice” there is for all but a tiny minority of people accused of crimes. The problem is that the accused often get no real legal representation before their cases are resolved for all time by plea bargains. I doubt if Judge Wilkinson has ever sat in a county or municipal court on "jail clearing days," when people who were recently arrested are given an opportunity to plead guilty to time served and be released. In many places, few, if any, of them have lawyers. Judge Wilkinson has probably never visited a courtroom and watched the “meet ’em plead ’em” process in which people accused of crimes meet a lawyer for the first time, have a whispered five- to 15-minute conversation, enter a guilty plea and are sentenced. He surely would not describe this as an “abundant process.”

Nor has he examined how much time a lawyer handling 300 to 500 cases at the same time can spend interviewing a client, reviewing the prosecution’s case and investigating the charges before resolving the case with a plea bargain. He may not be familiar with how often the word “triage” is used in public defender offices to describe focusing on some cases more than others even to the point of pleading some clients guilty the same day they are assigned to represent them. In one of many examples, the head of the Missouri Public Defender Commission wrote in her annual report a couple of years ago “[t]riage has replaced justice in Missouri’s courts,” people languish in jail “for weeks or even months with no access to counsel,” and attorneys are forced to take “shortcuts that lead to wrongful convictions.” Triage is appropriate for medics on a battlefield, who prepare the wounded for evacuation to a place whether they will get medical care from doctors. But it has no place in the representation of clients in courts. And what is happening is not “triage.” The clients who get short shrift are not being prepared for someone else to attend to them; their cases are disposed of for all time because it is determined they don’t merit more than a few minutes of a lawyer’s time….

Judge Wilkinson acknowledges the wide disparity between resources for prosecutors and lawyers for the poor at several points, but understates just how great that disparity is. He vaguely acknowledges “that prosecutors generally have access to more investigative resources than criminal defendants.” In cases involving poor people, prosecutors always have access to a lot more investigative resources — the local police and sheriffs, the state bureau of investigation, the Federal Bureau of Investigation, and other federal agencies, well-funded crime laboratories, and virtually unlimited funds for experts on any subject from DNA to mental illness. On the other side, the poor person accused of the crime may be defended by a lawyer who is carrying a huge caseload and has no funding for an investigator or expert or such limited funding that it is impossible to contest the prosecution’s case or mount a defense….

Many of Judge Wilkinson’s comments about prosecutorial discretion and plea bargaining are idealized, fictionalized versions of the power of prosecutors and how they engage in plea bargaining. I’ve described the reality in the first section of the Gideon essay3 [I wrote with Sia M. Sanneh] last year — there is no adversary system and prosecutors have vast power, greater than judges, to decide who goes to prison and for how long.

essay3That essay argues that the right to counsel in Gideon "has not been realized. Governments have failed to adequately fund defense systems, many judges tolerate or welcome inadequate representation, and the Supreme Court has refused to require competent representation, instead adopting a standard of ‘effective counsel’ that hides and perpetuates deficient representation."

Sotomayor4Justice Sotomayor wrote about judicial overrides in dissent last year in Woodward v. Alabama, a case in which an elected judge overruled a jury's verdict that a convicted murderer receive a life sentence instead of the death penalty.

With regard to the election of judges, Judge Wilkinson says “the potential for corruption or undue influence lies on the civil side,” but not a word about the many instances in which appellate and trial judges have been voted off the bench because of their votes in criminal cases, the concern expressed by Justices [John Paul] Stevens and [Sonia] Sotomayor4 and acknowledged by almost everyone that elections account for why Alabama judges override jury sentences of life imprisonment and impose death sentences, and the tough on crime advertisements that dominate judicial campaigns. A judge’s inability to follow the Constitution in a criminal case because he or she will be voted out of office in the next election if the ruling or decision is against the prosecution is completely contrary to the rule of law. Elected judges in Texas and elsewhere often appoint lawyers who handle cases before them in exchange for campaign contributions from those lawyers. This is unseemly and often corrupt. These lawyers are loyal to the judge, not the clients they are supposed to be representing.

Finally, Judge Wilkinson suggests that the courts have been doing something about racial prejudice in the courts. Nothing could be further from the truth. The Supreme Court in McCleskey v. Kemp not only said that racial disparities in the criminal courts were inevitable, it set such a high standard for establishing racial discrimination that one cannot even get a hearing on the issue. In United States v. Armstrong5, the court denied access to the information needed to prove racial discrimination, taking the same approach to racial discrimination that some states have taken with regard to lethal injection — keep everything secret so that no violations of the law can be established.

United States v. Armstrong5In United States v. Armstrong, the Supreme Court ruled that prosecutors did not have to share evidence with defense attorneys that would help them establish a racial discrimination claim in a crack cocaine case.

Judge Wilkinson asserts that the Supreme Court “outlawed the use of peremptory challenges of jurors based upon their race” in Batson v. Kentucky. But Batson is a joke. It just requires prosecutors to give “race neutral” reasons for striking blacks — like “the person seemed disinterested,” “the person had facial hair,” etc. As Justice Thurgood Marshall pointed out6 when Batson was decided, any prosecutor can think up some reason other than race for striking a black juror. Beyond that, elected judges are not going to rule that the elected prosecutors before them intentionally discriminated on the basis of race and then lied about it by giving a false reason….

pointed out6Justice Marshall wrote: "A prosecutor's own conscious or unconscious racism may lead him easily to the conclusion that a prospective black juror is ‘sullen,’ or ‘distant,’ a characterization that would not have come to his mind if a white juror had acted identically. A judge's own conscious or unconscious racism may lead him to accept such an explanation as well supported."

The absence of representation or inadequate representation of the poor, the influence of race on discretionary decisions made from stops by police to sentencing, the excessive and unchecked power of prosecutors, and the political pressures on elected judges are robbing courts of their credibility and legitimacy, as they should. Rationalizations and generalizations will not cover up injustices so obvious. Fairness and justice will never be achieved in the criminal courts unless judges, lawyers, legislators, governors, and the public examine the role of poverty and race and determine efforts to eliminate their influence. They must also secure the independence of the judiciary, restore the adversary process, and limit prosecutors to their proper role within that system.

Andrew Cohen
Andrew Cohen Commentary Editor

Strong words, without question, so we thought it fair to give Wilkinson an opportunity to respond. He did so as follows, in an email we edited for space:

Judge J. Harvie Wilkinson III
Judge J. Harvie Wilkinson III Fourth U.S. Circuit Court of Appeals

It was disappointing that in the entirety of his comments, Professor Bright did not point to one — not even one -– thing the criminal justice system is doing right. Overlooked are the countless instances where police have wisely dropped an investigation, where prosecutors have wisely declined to prosecute, where plea negotiations have reached eminently sensible resolutions, and where those who have committed unspeakable crimes against their fellow human beings were rightly brought to justice. No one believes the system to be flawless or beyond improvement but Professor Bright’s views only underscore the essential points of my essay: that the criticisms of our criminal justice system have been so one-sided, so replete with unrelieved opprobrium, that a balanced case for reform is made more difficult.

The gist of Professor Bright’s response has to do with the well-known crisis of volume. No one disputes that our traffic and misdemeanor courts are overworked and overburdened. The response to this is a perennial call for more resources and more process. As to resources, the criminal justice system is not functioning in a vacuum, separate and apart from the need for better schools, better roads, bridges and infrastructure, and better care for those burdened by mental illness and disabilities. While more resources would most certainly be welcome, it is a pipe dream to believe that the criminal justice system will escape the need for budgetary trade-offs and compromises that go along with being part and parcel of a functioning democracy. And as for the call for a full amplitude of process, the backlogs that attended a system of lengthy hearings and conferences would throw into limbo many cases that under the present system are promptly dismissed or disposed of with what amounts to minor admonishment. Frankly, I suspect my friends in the chorus of critics would be the first to raise the cry that an excess of process was grinding the system to a halt and that justice delayed is justice denied.

Professor Bright’s concerns with the crisis of volume are legitimate, but as with court congestion his reservations about plea bargaining go much too far. Here, the devil lies in the details. Was defendant A, who cops a plea, actually innocent? Did defendant B actually receive a sweet deal? Many defense lawyers think their clients are vastly better off having struck a bargain with a prosecutor whose own limited resources made her want to avoid trial or further proceedings at almost any cost in order to concentrate on more horrendous cases in the system. And it is sad, frankly, to have a defense lawyer burdened with the knowledge that the heavy sentence received by a client after trial could have been avoided had the attorney only done more to persuade the defendant to take advantage of a generous plea agreement.

Professor Bright’s sweeping indictment of the criminal justice system is evident in many places but nowhere more so than in his wholesale condemnation of peremptory strikes7. He declines to mention that the defense as well as the prosecution exercises peremptory strikes and indeed in Batson itself (and in many jurisdictions) the defense has more such strikes than that allowed the prosecution. Does the risk that a judge will fail to detect a prosecutor’s impermissible use of such strikes justify eliminating them altogether as Justice Marshall argued and Professor Bright appears to advocate? I think not. Many defense lawyers would argue that jury selection is far fairer when counsel is not confined solely to challenges for cause. Once again, it is all well and good to rail against this or that feature of the criminal justice system, but what exactly are the cures? And why would they not be worse than the disease?

peremptory strikes7As noted above, both prosecutors and defense attorneys are entitled to remove a certain number of people from the jury pool of a criminal case.
Andrew Cohen
Andrew Cohen Commentary Editor

There is more than a “same planet, different world” dichotomy at work here. There is a difference of perspective that both explains the existence of many of the flaws in our justice systems today and explains why those flaws won’t be fixed until there is some meeting of the minds. In any event, they have had their say. Their views are on the record. Now it’s your turn. Join the conversation on our Facebook page.

This article has 3 letters to the editor. Read the letters.