I’d like to thank the entire Concurring Opinions crew for hosting this mini-symposium and Danielle, Brandon, and my fellow mini-symposiasts for organizing this discussion of our recent works. In some ways, I seem like the odd one out here. The other books under discussion are more concerned with factually wrongful convictions, to explain where, how, and why our system on occasion convicts the factually innocent.
By contrast, my recent book, The Machinery of Criminal Justice, focuses more on the moral justice of both substantive outcomes and the procedures we use to get there. In the colonial era, criminal justice was fundamentally a morality play. The central drama was about both factual guilt and moral desert. Victims prosecuted in their own name, defendants defended themselves, and juries and spectators sat in judgment on both guilt and public punishment. The point of the system was to let people see justice done, indeed to do justice themselves, so wrongdoers would visibly pay their debts to society and the victim and earn forgiveness and reintegration. There was almost no permanent exiling of ex-cons, as remarkably few colonial Americans were executed or banished. To oversimplify, most were welcomed back after a transparent, public morality play.
The professionalization of criminal justice over the course of the nineteenth and twentieth centuries undoubtedly brought various benefits, including the ability to handle staggering caseloads. But it came at the unacknowledged cost of transferring almost all power from laymen to lawyers, as prosecutors supplanted victims, defense lawyers silenced defendants, plea bargains eclipsed juries, and increasingly long prison sentences supplanted temporary shaming and restitution. That not only cut out the lay actors who looked at cases through the lens of common-sense morality rather than jaded professional perspectives. It also focused on cookie-cutter dispositions and bottom-line sentence numbers, ignoring the procedural justice that is central to laymen’s evaluation of fairness.
Superficially, my approach might seem at odds with the other three books. After all, one might think that miscarriages of justice call for more expert reforms and fewer bumblers in the system. Yet, as Brandon’s first post suggested, the plea-bargaining assembly line imperils both factual accuracy and moral justice (both procedural and substantive) simultaneously. It engenders enormous agency costs, making it far harder to ferret out injustices that result from hidden plea bargains and thus bypassing the disciplining exercise of public trials. Prosecutors exert tremendous leverage to secure guilty pleas, offering sweetheart deals to cooperating witnesses (sometimes a necessary evil, sometimes not) and threatening far heavier sentences for those who refuse to play ball. Public scrutiny is essential to catching injustices, but most bargained-for convictions are rubber-stamped without any meaningful scrutiny or testing. Most defendants who plead guilty are probably factually guilty, but some are not. And even factually guilty defendants deserve varying sentences, but the bureaucratic imperatives of plea bargaining tailor punishments to the needs of assembly-line efficiency, not just justice.
In short, our criminal justice system is a broken machine running almost on auto-pilot. It needs to be more transparent and democratically accountable for its failures. We cannot abolish plea bargaining, as we need its ability to handle staggering caseloads. But we can hope that the exposure of factual and moral injustices can prompt rethinking, forcing us to slow down the assembly line, to increase the quality of convictions and punishments even if that means reducing the quantity and doing more triage. Books like Brandon’s, Dan’s, and Dan’s can, I hope, prompt more oversight and public involvement to ensure both factual and moral justice.