The tape of the Federalist Society teleforum I had the opportunity to join with Judge Alex Kozinski is not yet available. When it is, I'll post the link.
In the meantime, I can repeat only half the discussion, to wit, my opening statement. (Judge Kozinski did not prepare a written opening).
Our debate continued what has become a national examination of some extremely important topics in criminal law, including what some call "incarceration nation," imploding crime rates, policing and police behavior, the reliability of forensic evidence, the increasing number of non-mens rea offenses, prosecutorial immunity, and plea bargaining, among many others.
Although the Judge and I had our disagreements, the breadth and sharpness of his knowledge was something to behold.
My opening is below.
I had the opportunity to see Judge Kozinski's discussion with Judge J. Harvie Wilkinson at a recent Cato event, and I appreciate Judge Kozinski's willingness to consider the question again today.
Judge Kozinski started his criticism of our criminal justice system by noting, in a frequently heard phrase, that the Untied States has become "incarceration nation." We have 5% of the world's population but 25% of its prisoners.
For several reasons, I believe this is a misguided argument.
First, it's a mistake to accept other nations' statements of their prison populations. Iran, Russia and China, to take three big ones, might be telling the truth, but you wouldn't want to bet the rent.
Second, even if the statements are true, it's hard to know what, if anything, international comparisons tell us. Different countries have different demographics, culture, history and legal traditions. Many use corporal punishment as an alternative to prison, including the Islamic world, which has a collective population five times that of the United States. With all we hear about the need to respect other countries and other value systems, these harsh though widely used alternatives to prison never seem to get brought up in the discussion of the supposed moral shortcomings of the incarceration-heavy United States.
The third and by far most important reason it's a mistake to concentrate on the incarceration rate as the measure of the system's health is that only a tiny minority of our citizens would think of it as the sensible standard. As former Attorney General Mukasey recently testified -- echoing simple common sense -- the correct measure of the system's health is not the incarceration rate but the crime rate.
Viewed by that measure, which tends to get de-emphasized in debates of this kind, our criminal justice system is an astonishing success. It has reduced crime rates by half in the last 25 years, the biggest drop over the shortest time in American history. According to the Uniform Crime Reports, there are 5.4 million fewer serious crimes and 10,000 fewer murders per year now than there were a generation ago. I cannot begin to estimate the fortune we have saved, and the amount of human misery and suffering averted, because of this achievement.
True, not all of the crime decrease is because of the criminal justice system. As to murder in particular, part of our success can be laid to the aging of the once-violence prone Baby Boomer generation, improved emergency medicine, and better private security. But it simply cannot be denied that a major part of it is due to the very innovations that now serve as legal academia's Bad Boy -- more prosecutions, more incarceration for longer terms, more police and more proactive policing. If we now turn away from these things to re-embrace, as Ronald Reagan would say, the failed policies of the past, we'll get the failed results of the past.
And as conservatives in particular ought to know, the past is worth remembering. As I have debated this subject in other forums, I have been struck with the degree of forgetfulness and, to be honest, complacency, I see. As the 1960's dawned, two things dawned with it: A bitter antagonism toward police and prosecutors like the one we see being repeated now; and a not-unrelated 25 year-long crime wave. Between 1960 and the early years of the Reagan Administration, crime increased 400%. Whole neighborhoods in our inner cities became free fire zones, largely because of the gunplay associated with drug dealing.
It took the better part of 30 years to turn this around, but eventually we did. As Heather MacDonald reminded us in a recent column, 10,000 black men in New York City alone are alive today who would be dead if the murder rate there had continued to be what it was in 1991. From the idea that our criminal justice system is dysfunctional, I respectfully dissent.
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Judge Kozinski has pointed to dozens of examples of slipshod, dishonest and/or deceitful work by prosecutors. To maintain, as I do, that the criminal justice system, fairly judged, is a success, is scarcely to say that it could not use significant improvement. But at least two things need to be borne in mind as we set about the task.
First, one can take the worst one-half of one percent of the behavior of ANY profession -- prosecutors, doctors, butchers, bakers or candlestick makers -- and make that profession out to be a cesspool. As Judge Kozinski has elsewhere pointed out, Mike Nifong, the Duke-rape-hoax prosecutor, may lead the prosecutorial pack in that category, although he may have been outdone the D.A. who put Michael Morton in jail for 25 years by hiding a mountain of Brady material.
But, by similarly skewed selectivity, the "X-profession-reeks-of-corruption" narrative could also be woven about at least two other actors in the criminal justice system, defense lawyers and, if a point be made of it, judges. I could talk about the defense lawyer in New Jersey, Paul Bergrin, who was convicted of conspiring to murder a government witness. As an article in the New Yorker put it: " 'No witness, no case'--that was Paul's motto," said one attorney [who knew him]. "There was this guy with a tattoo of the scales of justice on his back. Below the scales was the quote, 'No witness, no case--Paul Bergrin.' When your customers are all criminals, what's better advertising than a prison tattoo?" And while Bergrin is an extreme example, a fancy dance with the truth is not exactly unheard of in criminal defense work.
Or I could talk about judges whose behavior was not mere sloppy or unethical but criminal: Walter Nixon, Otto Kerner, Harry Claiborne (who continued to preside over cases from his prison cell), and Alcee Hastings (whose "accountability" for selling favorable treatment to a defendant was to become one of the most senior members of the leadership of the House of Representatives). I could talk about the judges exposed in Chicago's Operation Greylord, in which one member of the bench competed with the next to take bids for dismissing cases. Or I could talk about the Montana judge who gave a school principal a one-month sentence for raping a 14 year-old, on the ground that she looked older.
Judge Kozinski started his criticism of our criminal justice system by noting, in a frequently heard phrase, that the Untied States has become "incarceration nation." We have 5% of the world's population but 25% of its prisoners.
For several reasons, I believe this is a misguided argument.
First, it's a mistake to accept other nations' statements of their prison populations. Iran, Russia and China, to take three big ones, might be telling the truth, but you wouldn't want to bet the rent.
Second, even if the statements are true, it's hard to know what, if anything, international comparisons tell us. Different countries have different demographics, culture, history and legal traditions. Many use corporal punishment as an alternative to prison, including the Islamic world, which has a collective population five times that of the United States. With all we hear about the need to respect other countries and other value systems, these harsh though widely used alternatives to prison never seem to get brought up in the discussion of the supposed moral shortcomings of the incarceration-heavy United States.
The third and by far most important reason it's a mistake to concentrate on the incarceration rate as the measure of the system's health is that only a tiny minority of our citizens would think of it as the sensible standard. As former Attorney General Mukasey recently testified -- echoing simple common sense -- the correct measure of the system's health is not the incarceration rate but the crime rate.
Viewed by that measure, which tends to get de-emphasized in debates of this kind, our criminal justice system is an astonishing success. It has reduced crime rates by half in the last 25 years, the biggest drop over the shortest time in American history. According to the Uniform Crime Reports, there are 5.4 million fewer serious crimes and 10,000 fewer murders per year now than there were a generation ago. I cannot begin to estimate the fortune we have saved, and the amount of human misery and suffering averted, because of this achievement.
True, not all of the crime decrease is because of the criminal justice system. As to murder in particular, part of our success can be laid to the aging of the once-violence prone Baby Boomer generation, improved emergency medicine, and better private security. But it simply cannot be denied that a major part of it is due to the very innovations that now serve as legal academia's Bad Boy -- more prosecutions, more incarceration for longer terms, more police and more proactive policing. If we now turn away from these things to re-embrace, as Ronald Reagan would say, the failed policies of the past, we'll get the failed results of the past.
And as conservatives in particular ought to know, the past is worth remembering. As I have debated this subject in other forums, I have been struck with the degree of forgetfulness and, to be honest, complacency, I see. As the 1960's dawned, two things dawned with it: A bitter antagonism toward police and prosecutors like the one we see being repeated now; and a not-unrelated 25 year-long crime wave. Between 1960 and the early years of the Reagan Administration, crime increased 400%. Whole neighborhoods in our inner cities became free fire zones, largely because of the gunplay associated with drug dealing.
It took the better part of 30 years to turn this around, but eventually we did. As Heather MacDonald reminded us in a recent column, 10,000 black men in New York City alone are alive today who would be dead if the murder rate there had continued to be what it was in 1991. From the idea that our criminal justice system is dysfunctional, I respectfully dissent.
***************************
Judge Kozinski has pointed to dozens of examples of slipshod, dishonest and/or deceitful work by prosecutors. To maintain, as I do, that the criminal justice system, fairly judged, is a success, is scarcely to say that it could not use significant improvement. But at least two things need to be borne in mind as we set about the task.
First, one can take the worst one-half of one percent of the behavior of ANY profession -- prosecutors, doctors, butchers, bakers or candlestick makers -- and make that profession out to be a cesspool. As Judge Kozinski has elsewhere pointed out, Mike Nifong, the Duke-rape-hoax prosecutor, may lead the prosecutorial pack in that category, although he may have been outdone the D.A. who put Michael Morton in jail for 25 years by hiding a mountain of Brady material.
But, by similarly skewed selectivity, the "X-profession-reeks-of-corruption" narrative could also be woven about at least two other actors in the criminal justice system, defense lawyers and, if a point be made of it, judges. I could talk about the defense lawyer in New Jersey, Paul Bergrin, who was convicted of conspiring to murder a government witness. As an article in the New Yorker put it: " 'No witness, no case'--that was Paul's motto," said one attorney [who knew him]. "There was this guy with a tattoo of the scales of justice on his back. Below the scales was the quote, 'No witness, no case--Paul Bergrin.' When your customers are all criminals, what's better advertising than a prison tattoo?" And while Bergrin is an extreme example, a fancy dance with the truth is not exactly unheard of in criminal defense work.
Or I could talk about judges whose behavior was not mere sloppy or unethical but criminal: Walter Nixon, Otto Kerner, Harry Claiborne (who continued to preside over cases from his prison cell), and Alcee Hastings (whose "accountability" for selling favorable treatment to a defendant was to become one of the most senior members of the leadership of the House of Representatives). I could talk about the judges exposed in Chicago's Operation Greylord, in which one member of the bench competed with the next to take bids for dismissing cases. Or I could talk about the Montana judge who gave a school principal a one-month sentence for raping a 14 year-old, on the ground that she looked older.
It would not serve a sensible discussion, however, to do more than mention these instances in passing. They balance, to an extent, the portrayal of prosecutors as the gemlin on the wing, but florid anecdotes do little to point us toward realistic and doable reform.
A person of conscience cannot help but agree with Judge Kozinski's outrage at the wrongful conviction of the innocent. With respect, however, what I believe is missing here is the understanding that a wrongful failure to punish the guilty is also a miscarriage of justice -- and poses a danger to the public, when the supposedly "exonerated" criminal, emboldened at having once snookered the system, victimizes an innocent yet again. This a serious harm in itself, yet goes mostly unmentioned in debates like this.
Judge Kozinski and others with his viewpoint "get it" that careless and dishonest prosecutions undermine public trust as well as work individual injustices. What we need also to "get" is that
the public's distrust, and a good deal of injury to boot, will result if prosecutors are deprived of useful and constitutionally sound tools. The system has limited resources and is about balance; adding burdens to the everyday tasks of prosecutors will decrease the protection they are able to provide by incapacitating criminals. If, for example, we were to require prosecutors to obtain unanimous verdicts from juries of 24 rather than 12, it would doubtless reduce the already small number of wrongful convictions. The problem is that it would also reduce the large number of correct ones.
For every benefit we get, there is a cost we will pay -- and those least able to pay it will wind up with the biggest share of the bill. With this unhappy but inescapable fact in mind, I turn to some proposals for reform.
Judger Kozinski, in his recent but already famous introduction to the annual Georgetown Journal of Criminal Procedure, made many such proposals. With the limited time left, I want to disagree with one of them, then note two where we might find common ground.
I disagree with Judge Kozinski's proposal to overrule the Supreme Court's decision in Imbler v. Pachtman upholding the doctrine of prosecutorial immunity. It's surely tempting to want to hold a crooked and abusive prosecutor to account by forcing him to answer a civil suit. But there's a reason the judgment in Imbler was unanimous -- penned by Justice Powell for the Court and concurred in by Justice White together with Justices Brennan and Marshall. The concurrence led of by agreeing that, "...a prosecutor is absolutely immune from suit for money damages...for presentation of testimony later determined to have been false, [where] the prosecutor did not believe it, or should not have believed it to be true."
Here's the problem the Court faced, which I summarize less eloquently that it did: If prosecutors are required to answer civil complaints about their official behavior, they will be doing nothing else. The primary plaintiffs will not be the handful of those wrongfully convicted. They will be the legions of those rightly convicted, sitting around their cells, building self-justification and resentment, with time on their hands and nothing to lose by trying. Such suits will not only make impossible the change of attitude needed for rehabilitation; they be put a perverse cap on future prosecutions. Perfectly honest prosecutors will spend the great bulk of their time, and your money, answering fabricated complaints rather than going after the fellow who ransacked your house last night.
There is probably one major reform Judge Kozinski and I agree on: The federal criminal code is overstuffed, running on for hundreds of pages describing offenses consisting of behavior no normal person would suspect is wrong, much less criminal. Criminalizing the regulatory state by jettisoning the mens rea requirement undermines the moral basis, and hence the public authority, of criminal law itself. If we must have a overwrought regulatory state, it should be enforced by someone who is, not menacing, like the local SWAT Team, but merely annoying.
Last, Judge Kozinski and I might agree that we should limit the number of cases resolved by plea agreements. Plea bargains are an economic necessity, given the limited resources taxpayers are willing to invest in the system, but the frequency with which we do them now has become an addiction. When 97% of your cases are resolved through bargaining, it spawns a host of bad incentives: Prosecutors are tempted to settle a case on the cheap simply to get to the next one. Defendants may be tempted to eat a credible defense just to end the expense and anxiety of trial (conversely, of course, they might be overjoyed to be able to walk away from behavior the prosecutor might have found out about with a less pressing caseload). Judges are spared the rigorous and time-consuming work of trial, but they are likely over time to lose discipline in ways that dis-serve justice.
All in all, our over-reliance on plea bargaining has become the Petri dish of poor behavior from prosecutors, defense counsel and judges alike. We need to do much more serious thinking than we have up to now about how to rein it in.
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