The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
It's Time to Confront Failures of Justice (Part V)
A sample list of reforms to reduce failures of justice.
This is the final post in a five-part series where we're guest blogging about our new book Confronting Failures of Justice: Getting Away With Murder and Rape, available here. In the previous posts we considered the frequency of failures of justice (instances of unpunished or inadequately punished crime), their costs, and the problem of balancing competing societal interests in criminal justice policy. Identifying problems is important, and our book identifies numerous problematic areas of the justice system where serious criminals either completely escape conviction or escape what society would see as a just punishment.
However, we also offer reform ideas for what a better balance of societal interests might look like in each area of the justice system. While we describe or suggest dozens of possible reforms to reduce failures of justice, consider an excerpt from the book listing ten reforms (not by order of importance) we think policymakers should particularly consider.
[1.] Abolish the Statutes of Limitation for Serious Felonies, and for Other Felonies Restart the Limitation Clock after Any New Felony (chapter 2). As discussed in chapter 2, while statutes of limitation might have had more justification when introduced centuries ago, the reasons for their continued use are lacking, especially when they regularly produce failures of justice for serious offenses.
[2.] Adopt a Fair Import Test in Place of a Strict Construction Test, after Adopting a Modern Criminal Code Format (chapter 2). As with statutes of limitation, the rule of strict construction might have made sense back when it was first adopted, but the advent of modern criminal codes with their careful drafting and defined terms have left it with little continuing justification.
[3.] Adopt a Desert-based Distributive Principle, as per the Model Penal Code (chapter 3). Half a century ago, when the Model Penal Code was first drafted by the American Law Institute, the state of criminal law theory left it unsettled as to whether criminal law ought to be primarily aimed at doing justice—giving offenders the punishment they deserve, proportionate to the seriousness of the offense and the blameworthiness of the offender—or in the business of avoiding future crime through general deterrence or incapacitation of the dangerous, even if doing so meant violating principles of deserved punishment. But as the 2007 amendment of the Model Code illustrates, it has now become clear that abandoning desert as the guiding principle for criminal liability and punishment creates its own enormous costs to effective crime control.
[4.] Establish a National Experts Group to Set Best Investigative Practices and to Help Gain Funding to Meet Them (chapters 4 & 5). Chapters 4 and 5 made clear the frequent failures of justice that come from investigative errors, poor training, and inadequate financing. Given the importance of doing justice in the community's eyes, these problems, which can easily be fixed with greater investment, ought to be high on the reform list. This proposed reform could have an enormous practical effect in reducing failures of justice in a wide range of cases without requiring more complicated legal changes.
[5.] Enlarge Investigative Databases and Capabilities but Establish Limitations on Their Use (chapter 7). There is understandable reluctance to allow governments to be too intrusive in our private lives, but at the same time, there seems to be strong support for the idea that minor intrusions in our collective privacy are worth the enormous benefits to justice and safety that can be obtained by allowing investigators to have greater access to modern technology. Greater access can dramatically alter the level of serious criminality in a society with only minor intrusions on our privacy, as in the collection of a genetic fingerprint from all arrestees to only be used when investigating serious offenses. Additionally, expanding the use of CCTV and automatic license plate readers in public spaces, where the community approves, improves justice at little cost to privacy. A key to adopting modern investigative technology is making sure sufficient limitations and safeguards are put in place to prevent its abuse and assuage public concerns.
[6.] Replace the Exclusionary Rule with Direct Sanctioning of Offending Officers (chapter 8). For many people, the exclusionary rule will stand as one of the most offensive doctrines disregarding the importance of doing justice. Should a serial torturer and murderer like Larry Eyler go free (to kill again) because he was held too long during a Terry stop? Such applications of the exclusionary rule bring into disrepute the entire criminal justice system…. The existence of the rule is even more offensive because it commonly fails in its stated justification of deterring police overreach.
[7.] Use Consolidated Offense Drafting with Particularized Offense Grading to Reduce the Justice-Frustrating Costs of Plea Bargaining (chapter 10). Plea bargaining may be the most common source of justice failures in the current system among caught criminals. Nearly every "bargain" is a case in which the offender is getting less criminal liability than they deserve, with the prosecution trading that deserved punishment for the efficiency and certainty of a guilty plea. While it may be impractical to stop offering plea bargains, there is no reason to have a system that offers any greater reduction in justice than is needed to induce a plea…. Prosecutors can try to work around the problem in a variety of ways, but the most obvious and cleanest solution is simply to draft criminal codes in a way that consolidates all related offenses into a single offense provision (for homicide, theft, assault, sexual assault, fraud, etc.) and provides many offense grades within each consolidated offense, as some modern and proposed codes already do.
[8.] Adopt Comprehensive Sentencing Guidelines, as per the Federal System (chapter 11). A common source of justice failures is the exercise of sentencing discretion by judges who have their own idiosyncratic view of what justice requires. To make things worse, these failures of justice also introduce unacceptable punishment disparities among similar cases.
[9.] Abolish Early Release on Parole, as per the Federal System (chapter 12). The federal Sentencing Reform Act of 1984 demonstrates the value of abolishing early release on parole…. The federal system provides transparency with the public about how offenders are dealt with: the sentence publicly imposed in court really is the sentence served. Compare such honesty with the shell game played currently in many states where the sentence publicly imposed means little or nothing. The actual sentence served will be determined later out of public view by a parole commission. This systemic deception simply contributes to the lack of confidence that so many communities have in their criminal justice system.
[10.] Create a Police-Community Oversight Commission Designed to Build Trust with Both the Community and the Police (chapters 14 & 15). Chapters 14 and 15 documented the existence and resulting problems from poor police-community relations, which stem from a variety of factors. Whatever their cause, such poor relations have an enormous negative effect by producing a regular stream of serious justice failures and increasing crime. The solution to the problem cannot be found simply in "fixing" the police, as some political activists seem to think, but rather in building a police-community relationship that changes community views as well as police practices. Thus, our recommendation is a joint police-community oversight commission that has broad jurisdiction to oversee police-community interactions and to actively promote better policing and public recognition of such.
Reasonable people can and will disagree on some of our reform proposals, just as they may disagree on how society should balance certain interests. But what reasonable people should agree on is that failures of justice are a serious problem and one that society must not ignore. The lack of serious study of the problem is also an indictment against modern legal academia, which is so obsessed with getting criminals out of prison that it forgets how few crimes ever lead to punishment in the first place. As we conclude in the book:
The tragic irony of the American justice system is that so little justice is done by it. Change begins with awareness, however, and this book has attempted to investigate the reasons why justice fails so frequently and suggest ways to make it succeed more often.
This volume is not a work of one-sided activism but acknowledges and confronts the serious tradeoffs faced in creating criminal justice policy. As such, it is our hope that it can be useful to everyone—from academics to policymakers to concerned voters—of whatever political persuasion who wish to make the American justice system a more just system for all. Our ultimate goal is simple: a system that punishes the guilty in proportion to their blameworthiness, protects the innocent from liability and crime, and upholds the moral credibility of the law in the eyes of the community. We hope this work will help further that end.
If that goal resonates with you, we hope you give Confronting Failures of Justice a read, a think, and a share.
