CJI speaker decries ‘assembly line’ approach to criminal justice

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Prof. Adam Gershowitz of the Law Center makes a point while Prof. Stephanos Bibas of the University of Pennsylvania Law School makes notes for rebuttal in a debate on capital punishment hosted by The Federalist Society at the Law Center.

Prof. Stephanos Bibas of the University of Pennsylvania Law School talks about changes needed in America’s “assembly line” criminal justice system in the initial presentation of the Criminal Justice Institute’s Lecture Series, “Criminal Law at the Cutting Edge.”


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The American criminal justice system has devolved into an "assembly line," dispensing "cookie cutter" plea bargains with little or no input from victims, defendants or the public at large, according to a noted professor of criminal law who opened the Criminal Justice Institute's lecture series at the Law Center.

"The system today is focused on cost, efficiency, and speed, and is basically run by prosecutors with little regard for the other players involved,” said Stephanos Bibas, professor of law and criminology at the University of Pennsylvania Law School.

Bibas told his afternoon audience of Law Center students, faculty and alumni that America has strayed far from its heritage of hands-on, face-to-face justice.  Somewhere along the way, the nation lost sight of key provisions of the Bill of Rights where the founders sought to engage the public’s values and its intrinisic sense of right and wrong.  “This older version of justice is something worth resurrecting.  Everything can’t be reduced to mathematics,” Bibas said.

The “assembly line” system is impersonal and without emotion, he added, and it is designed to maximize convictions and pressure juries with “deterrence speak” – Bibas’ euphemism for “getting bad guys off the street with tough sentences.”  As noble as that goal sounds, Bibas noted it sometimes comes at the expense of due process, fairness and accuracy. 

“Discretion and mercy have been squeezed out as the criminal justice system became more administrative and bureaucratic,” he said. “We need better measures of success than what is ‘cheaper.’”

The challenge, Bibas said, is to get to the point where the public feels that justice is done. The key, at the “retail level,” is more involvement with those caught up in the criminal justice system as well as the general public. His suggestions include:

  • Developing a better way to keep everyone apprised of the process and how it is proceeding – even if only by regular phone calls – to inform victims, defendants and other involved in the case.   
  • Adding a brief period at the end of a trial when non-lawyers and even the presiding judge can reflect on the merits of both sides.
  • Allowing jurors to have a greater impact on the system by gathering more information after trial -- perhaps even including a “rating system” that would assess each of the principals involved in the trial.
  • More recognition by lawyers and academicians that the public’s “right to govern” includes the court system.  “We need to learn to deal with the public’s sense of right and wrong and not shut it out,” Bibas said.
  • “Treat unlike cases unlike,” i.e., work to tailor the process on a case by case basis rather than reflexively pushing the cookie-cutter button. 
  • Promoting community-based policing to get a better understanding of what individual neighborhoods want and expect of the justice system.
  • Building better communication links and coordination with community organizations to better integrate ex-criminals into society.
  • Stop “feel good” legislation such as Draconian “three-strike laws” which fail to distinguish “crimes of violence” from “candy bar theft.”

Earlier in the day, Bibas and Law Center Prof. Adam Gershowitz explored the pros and cons of capital punishment in a debate hosted by The Federalist Society.

Bibas conceded many of the familiar arguments against the death penalty, e.g. the expense of prosecuting capital cases; the racial and social disparities found in capital convictions; and instances of wrongful convictions.   Bibas noted that some issues, and some cases, are simply more important than others.

“There is a role for trade-offs on cases,” he said, referring to capital cases taking time and resources away from lesser prosecutions.  “Yes, some things are worth it to us. I would say sacrifice some cases elsewhere and do justice to the victims here (in capital cases).”

Gershowitz, who wondered aloud if he was the only liberal in a room filled with conservatives, said, “I am emotionally outraged by crime. I think we should all be outraged by crime.” He underscored the irrevocability of a death sentence, and railed against the arbitrary nature of capital convictions as confirmed by racial, economic and geographical data -- especially in Harris County, where  these disparities are considered among the worst in the nation.  Gershowitz said the cost of capital prosecutions goes well beyond time and money to the “ripple effect” of putting the public at risk. Lengthy capital trials cause backlogs of other cases – which he noted can result in more plea bargains for more lenient sentences in other cases jamming the docket.

Bibas said people should not be dispassionate about the death penalty. “Emotions are essential to understanding criminal law. Emotions are essential to what makes us human; you must not shunt them aside,” he said.  Looking at his audience of soon-to-be lawyers, he noted that the role of emotion in criminal law may not show up fully in casebooks – “but it should.”

Bibas is currently working on a book – Assembly-Line Criminal Justice – that will be published by Oxford University Press.

The next speaker in CJI’s “Criminal Law at the Cutting Edge: Leading Voices Lectures Series” is Corinna Barrett Lain, professor of law at the University of Richmond School of Law. Her lecture, Our (Not So) Countermajoritarian Supreme Court, is scheduled for March 8.

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