It is rare to see, especially from the right, a critique of the modern American criminal justice system that focuses not just on specific concerns, but on the foundation of the system itself. Such critiques are generally reserved for the left, which is always happy to tear down whole systems and begin anew. It is therefore noteworthy when a conservative voice, inspired by conservative principles, comprehensively analyzes the root problems of our criminal justice system.
Before his confirmation to the federal Third Circuit Court of Appeals in November of last year, Stephanos Bibas spent much of his career as a professor of law at the University of Pennsylvania, specializing in criminal procedure. In his research—and, one might imagine, in his future judicial activities—Bibas brings to bear a distinctly premodern perspective, which he has distilled in The Machinery of Criminal Justice. Published two years before his appointment to the federal appeals court, the book deploys social-scientific, historical, and personal insight to ask and answer a question: why and how have the beneficiaries of justice—the community—been shut out of the process of justice?
Things were not always so. In the American colonies, criminal justice was a notably more straightforward affair than today. “Colonial justice was the business of laymen,” Bibas explains. “Many judges were not lawyers, but laymen representing the community’s sense of justice and order. Many did not even have much experience with the justice system. Procedures, despite some technicalities, left magistrates or justices of the peace with broad discretion.” Trials under this system were relatively simple affairs with swift arguments and swifter judgements. “Eighteenth-century English courts heard between twelve and twenty trials per day, each lasting about half an hour.… Trials in the colonies appear to have been almost as swift,” Bibas notes. This rapidity makes sense, given the small scale of most colonial jurisdictions and the crude quality of evidence at the time (modern forensics would not arise until the late nineteenth century). Prosecuting a case was a simpler process when everyone knew everyone involved and when evidence was usually limited to eyewitness testimony and admissions of guilt.
This system was not a less perfect form of modern justice: it was designed with different ends in mind. “Law was not some newfangled imposition by distant bureaucrats. It reflected the communal moral consensus, the common-law sense of what had always been God’s law and man’s,” Bibas writes. As such, the criminal justice process was a way to address contraventions of the community’s will, and the rules it outlined in accordance with that will. There is a certain contractarianism to this framework, albeit one alien to the individualism of many contractarians. Humans, on this view, are naturally social and political animals. Communities must and do have norms of conduct, which both insure their individual members against harms (meaning a benefit to community membership) and simultaneously ensure the health of the community as a whole. These norms are an implicit promise: all abide by them for the common good, the benefits of which will accrue to the community members.
The whole community has an interest insofar as everyone is invested in the norms that have been damaged.
A crime, in this framework, is not merely an individual’s transgression against another individual. To murder is not merely to a harm insofar as it wrongfully deprives someone of his or her life; it is also a harm to the net of norms on which a community relies, because it reveals the violability and therefore contingency of those norms. Trial and punishment, then, are a process in which not only the individual harmed, or the state qua institution, has an interest. Rather, Bibas argues, the whole community has an interest insofar as everyone is invested in the norms that have been damaged.
Colonial trials were furthermore a process of uncovering both not simply factual but also moral truth. What had the accused done? Then, more importantly, what consequences were proper for his actions? “These swift, informal trials were hardly today’s stiff courtroom rituals, but rather arguments about who was right and who was wrong,” Bibas explains. “Particularly because many if not most defendants had been caught red-handed or otherwise had no defense, the main point of many trials was to weigh leniency. In other words, central to most trials was the issue of what punishment the accused deserved.” The colonial trial was, in Bibas’s language, a sort of “morality play.” This is true insofar as the trial was a public acting out of the clash of communal values, “a form of educational social theater.” But it is true in another sense as well, that of Aristotle’s understanding of the tragedy as a cathartic process, the presentation of which “through pity and fear effect[s] the proper purgation of these emotions.”
After all, crime has a powerful effect on not only its victim, but on the community in and upon which it is perpetrated. Although today we tend to discount morally valenced emotions like outrage, such responses are natural, and perhaps even useful, consequences of a crime. They represent a compulsion by the community to seek restitution for an injustice committed against it. The morality play of the trial serves to heal both the rent social fabric and the individual hurt. This helps to explain the popular character of the proceedings, which were enshrined in the Founding Era in institutions like the trial by jury (“juries were political institutions,” Bibas writes, “that judged factual and legal guilt as well as moral blame”).
The purgative or cathartic reasons for public trials has almost completely disappeared from view.
This approach to justice is essentially foreign to the modern popular understanding of the same. Television shows depict a system where justice is carried out by expert lawyers, while juries and spectators watch silently. The reality is even starker: in a system that processes more than 100 million cases per year, 94 percent of cases at the state level and 97 percent federally are resolved through plea bargaining: basically none see trial. The purgative or cathartic reasons for public trials has almost completely disappeared from view. Multi-hundred-thousand-dollar degrees are required to participate substantively in the system, and the rules of procedure are essentially opaque to the layman.
What happened? The transition from the community justice model to the modern system is, in Bibas’s view, a product of many factors. It is partially accounted for by society’s general drift towards professionalization; by the withdrawing of punishment from the public eye and the movement of criminals behind prison walls and into the death chamber; and, one might even speculate, by a larger transition to a less community-oriented society.
Regardless of the historical causes, Bibas argues that the modern system is less “morality play,” more competitive sphere. Such competition, embodied in the principle of adversarial justice, is often interpreted as a plus. But that adversarial system is mixed uneasily with an “insider” culture in which prosecutors, defenders, and judges alike have strong incentives to obscure their work from public view and create a streamlined justice process, clearing as many cases as possible without drawing too much attention to themselves or their work. “Today, criminal procedure strives to be a cheap, fast punishment factory, to the exclusion of most other values,” Bibas writes. “The punishment factory maximized efficiency, but lawyers rarely pause to consider what exactly they are supposed to be doing efficiently.”
Two predominating models try to justify this procedural model of criminal justice. These are divided into the “crime control” model, and the “due process” model (a classificatory scheme that Bibas draws from law professor and criminologist Herbert L. Packer’s book The Limits of the Criminal Sanction). The former, predominant among right-leaning thinkers, emphasizes minimizing the level of crime in society, making justice “like an assembly line, hurrying large volumes of cases along to guilty pleas.” The latter, popular on the left, is animated by a strong distrust of the fairness of the criminal justice system and a corresponding desire to enforce legitimacy in its outcomes. This leads to a vision of criminal justice “as an obstacle course, requiring the prosecution to clear more hurdles.”
These two visions “exemplif[y] the scholarly debate of the past half-century,” and do, at first glance, frame opposing sides. Yet an underlying commonality is obscured by this apparent opposition. Each approach is animated by a kind of individualism, in which the parties to the justice process—the prosecutor, the defense attorney, the judge, the defendant—are lone actors. The crime control model seeks to punish or discipline the individual wrongdoer as swiftly as possible; the due process model focuses almost exclusively on ensuring his procedural and substantive rights against abusive authority. This individualism is, of course, not isolated to the criminal justice system, but it does illuminate certain features of that system. Procedures, of course, are individualized. The most prominent justifications for punishment—incapacitation, deterrence, and rehabilitation—operate on individuals, even if grouped severally. Even laws themselves are justified in terms of harms to individuals, producing the debate over so-called “victimless” crimes.
What is absent from this framework of justice—indeed, what we might claim is systematically excluded—is the community against which crime is perpetrated. Bibas refers repeatedly to the “outsiders” of the criminal justice system—essentially, everyone who isn’t a criminal justice professional—as constantly in tension with the system’s “insiders.” Through democratic mechanisms, outsiders often try to enact procedural changes to the system, but almost invariably the criminal justice system (to paraphrase Jim Gilmore) interprets reform as damage and routes around it.
The result is a criminal justice system which is at once intransigent, bureaucratic, and ill-suited to actually serving the community in which it is embedded. These are not accidents of the system: they are features.
The result is a criminal justice system which is at once intransigent, bureaucratic, and ill-suited to actually serving the community in which it is embedded. These are not accidents of the system: they are features. Bibas, informed by the work of both restorative justice scholars and recent retributivists, suggests solutions ranging from increasing work requirements for prisoners (so as to increase their engagement with the community) to local restorative sentencing juries. He places a great emphasis also on courts increasing transparency towards and communication with victims, defendants, and the community as a whole. These latter reforms especially, however, feel inadequate to altering the status quo. If the current systemic trend is against transparency and communication, then calls for a reversal of course are like paddling upstream.
Bibas’s stated goal with these alterations is to, “breach the wall that separates insiders from outsiders.… As stakeholders, [victims, the public, and defendants] should once again play integral roles in criminal justice alongside insiders.” But these practical reforms end up seeming inadequate to the problem that Bibas has framed, piecemeal changes that, while admirable, do not go far enough in challenging the predominant view of justice. Machinery of Criminal Justice is strongest when it engages with contemporary theories of justice, as in Bibas’s engagement with theorists like Howard Zehr and John Brathwaite, whose restorative justice work Bibas seeks to reconcile with principles of retributivism.
These sections are the strongest because Bibas’s argument is an ideological critique, not a practical one—the root of the problem lies not just in how we execute justice, but in how we conceive of the meaning of that term at all. The efficacy of a justice system ought not be measured, in the final analysis, by its clearance rate, the number of people it locks up, or how well it respects the rights of the individuals which pass through it, but by its service to the community in which and on whose behalf it operates.
What Bibas’s work permits, then, is the recovery of a not-so-modern vision of justice. That vision, coming as it did before the great individualistic turn in European and American thought, eschews our modern fear of moralizing and compulsion to rationalize, and exchanges them for a justice which focuses on making whole that which crime has broken. There are, to be sure, important and compelling critiques of that account of justice. But its basic goal, that making whole, feels far closer to justice than anything which calls itself justice today.
Charles Fain Lehman is a staff writer with the Washington Free Beacon, where he covers policy, focused on issues of crime, law, drugs, immigration, marriage, and family; he also reviews books touching on these issues and others. Find him on Twitter @charlesflehman.