It takes too long. It costs too much. And it makes too many mistakes.
It convicts too many innocents. Too many criminals get away with crime. The unspeakable truth is that, today, crime does pay. Which is something that should not surprise us because the system operates on the fundamental premise that “better 10 guilty should go free than one innocent be wrongly convicted.”
And the reason it takes so long and costs so much is that we know that the system is prone to making mistakes, so we have created a whole system of laws, procedures and precautions to protect us against them or minimize their impact. And examining and considering these precautions in detail on a case by case basis often necessitates time consuming, expensive processes.
There is a Catch 22 element in this. Thus far, we have been satisfied to accept the horrible truth that this may be the worst system possible – except when compared to all the others. It is the best we can do.
Historically, whenever the costs and delays of criminal justice have become too heavy a burden, the cry has gone out for someone to do something about it. It is a recurring theme. It is happening again today.
In the past, those entrusted to find solutions have routinely focused on finding ways to streamline the process so as to economize on time and expense. I hope we don’t do that again this time. Finding more effective ways of doing what we are doing will not resolve anything. In substance, it only means more of the same, more of what we already have. Perhaps cheaper and faster, but still making the same mistakes. That will not accomplish anything – except exacerbate the mess that already exists.
In the past we have devoted ourselves to dealing with symptoms. Now we must begin to honestly address the important question: Why does the system make so many mistakes?
There are very cogent reasons why the system functions in the way that it does. Most of our current ideas about criminal justice were engraved on stone at a point in time in our history when judges and lawyers traveled to their assignments on horses and buggies… before even the invention of the steam engine or discovery of electricity. How drastically the means and systems of transportation and communication have changed! Those horses and buggies have evolved into Ferraris and Bentleys.
Indeed, everything in our lives has changed drastically over the past 100 years or so. Everything in our lives has become extremely more complex – except the mentality and operating paradigms of the law. The allusion to Bentleys and Ferraris is apt: our system still is, essentially, horse and buggy. It is an anachronism – blind to modern realities. Worse yet, blind to the fact it is blind.
This system is devoted not to justice, but to due process. It is concerned not with truth, but with admissible evidence.
It adheres to a sporting theory of justice and the laws of evidence often exclude important, relevant information.
How can there be justice without truth?
Most of the fundamental questions about our criminal law and process were last critically examined about 150 years ago. We need to ask these questions again because the answers for a highly complex society are much different from those for a simple world.
Let us not repeat the endless process of shifting around the furniture in the existing house. Not even new furniture will provide answers. A new house is needed. A house not burdened by the limited vision and perspectives of the 18th and 19th centuries.
Let us not again parade proposals to reform the system by getting tougher in sentencing. That will have the same success it has demonstrated in the past: very little. Despite more than 150 years of experience, we still have not learned the object lesson that deterrent sentences don’t deter; they help to educate more skilled criminals. And increasing the number of cells tends only to increase the number of prisoners available to fill them.
The problems cannot be addressed by manipulating symptoms. The problems are systemic. We must begin addressing causes.
And the causes are to be found in the structure and processes of the justice system because structure and process define, determine and circumscribe the kinds of outcomes that any system can generate.
To paraphrase Albert Einstein, everything about our world has changed over the past 150 years – except our ways of thinking about the law. The world has become extremely more advanced and complex; the system of criminal justice has not. What began about 300 years ago trying to build a system that was soft on innocents has wound up as a system that is soft on crime. That is the essential problem.
How, then, do we create a just criminal justice system for today?
