Clive Crook / Bloomberg News
“As a prosecutor, a judge, an attorney in private practice, and now, as our nation’s attorney general, I’ve seen the criminal justice system firsthand, from nearly every angle. While I have the utmost faith in — and dedication to — America’s legal system, we must face the reality that, as it stands, our system is in too many respects broken.”
In a widely reported speech this week, Eric Holder delivered that assessment of U.S. criminal justice. Many commended his frankness, but if you ask me he’s confused. A broken system of justice shouldn’t command the utmost faith; it should arouse the utmost skepticism. And his appraisal was actually too generous. America’s criminal-justice system is not “in too many respects broken”: It’s a national disgrace, from top to bottom.
The United States is not a forgiving country, and most Americans believe in harsh punishment for serious crimes. I’ve no quarrel with that. But the principle of proportionality — really, the very notion of justice in sentencing — seems to have been overthrown. According to a forthcoming report from the American Civil Liberties Union, 2,074 federal inmates are serving sentences of life imprisonment without possibility of parole for nonviolent crimes. Think about that.
The U.S. — a country that loves freedom, so I’m told — has virtually abolished trial by jury. According to one recent count, guilty pleas resolve 97 percent of federal cases that are prosecuted to a conclusion. Instead of bothersome trials, the U.S. has a plea-bargain system in which prosecutors not only bring the charge but also, in effect, determine guilt and pass sentence. As this astonishing assault on civil liberty proceeds, judges have allowed themselves to be turned into rubber-stamping functionaries, apparently for reasons of administrative simplicity.
Meanwhile, Congress has criminalized vast new swaths of activity. In extending the criminal law into the regulatory domain, it has removed the requirement of “guilty mind” (a bedrock principle in common law) from many of the new crimes it has invented — so you can be sent to prison for doing something you didn’t know was wrong. In the land of the free, you can be sent to prison if a worker you’re supervising causes some damage while you’re off-duty and at home.
In response to momentary spasms of popular outrage over front-page crimes, Congress has also enacted a raft of mandatory minimum sentences. The express purpose of these rules is to deny courts the ability to take mitigating circumstances into account. The effect is to send large numbers of people to prison for unconscionably long periods of time — not because a judge has calculated that justice requires it, but because an immoral rule must be mechanically applied. Frequently you read of judges deploring the sentence they have to pass as they deliver it. They do it anyway. It’s the law.
These elements, disturbing enough in themselves, come together in an especially pernicious way. The combination of plea bargains and mandatory minimum sentences — not to mention the U.S. practice of stacking charge upon charge, with sentences to run consecutively — gives prosecutors awesome powers of intimidation. One dreads to think how many innocent people are in U.S. prisons, and will be felons for life, because they were offered the choice of a relatively light sentence if they pleaded guilty to a lesser charge, or the risk of decades of incarceration if they preferred to take their chances with a maxed-out indictment at trial.
In this system, everything — everything — depends on the decency and restraint of prosecutors. Most no doubt are indeed decent and restrained. (If that weren’t so, the demand for radical change would already be overwhelming.) But some lust after high political office and wish to make their mark; some are vain; some, as in any profession, are just bad people. The American way is to create checks and balances, so that the system’s integrity doesn’t depend on the incorruptibility of individuals. How strange that the country has made an exception for criminal justice.
Despite the vaunted separation of powers, Congress, the courts and the executive have cooperated in violently skewing the balance of power between ordinary citizens and the government’s endlessly proliferating law-enforcement agencies. The Constitution’s framers would, I think, be stunned. The U.S. criminal-justice system is beyond illiberal. It’s beyond what any nation of laws should tolerate.