White-Collar Crime

Why Judges and Prosecutors Don't Care If They're Right

Judge Alex Kozinski explains that a lot of fault for our messed-up criminal justice system lies with judges and prosecutors.

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Judge Alex Kozinski has written the preface for the latest edition of the Georgetown Law Journal’s Annual Review of Criminal Procedure.

Put simply, it’s a barn burner.

He lays out 12 views that are widely held by judges and lawyers to justify what happens in our criminal justice system — that forensic evidence is reliable, that juries follow jury instructions, that human memory is reliable, that the prosecution is at a disadvantage because of the burden of proof, that long sentences deter crime — and explains why there is substantial reason to doubt each of them based on what we know about the how the legal system actually works, what we’ve learned from empirical studies of how human brains function, and scientific literature casting doubt on much of what happens in the courtroom.

For example, on the reliability of forensic evidence, Kozinski quotes a piece in the journal Science that concludes that:

Spectrographic voice identification error rates are as high as 63%, depending on the type of voice sample tested. Handwriting error rates average around 40% and sometimes approach 100%. False-positive error rates for bite marks run as high as 64%. Those for microscopic hair comparisons are about 12% (using results of mitochondrial DNA testing as the criterion).

Another powerful Kozinski point is about jury instructions.

Judges often instruct juries on the law, explaining relatively nuanced legal doctrines, only one time. Orally. Many don’t give the juries a copy of the instructions. Appellate courts then presume, as a matter of law, that the juries understand what they’ve been told and are following it to the letter.

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Seriously? Have these judges ever been to a conference and heard people receive an orientation? Most of the time people don’t follow directions to the bathroom without hearing them more than once. The only way you’d think juries actually know what they’re supposed to do from this process is if your only experience of actual humans came from reading appellate decisions.

After reading the first 11 pages of Kozinski’s piece, one gets the strong feeling that our criminal justice system isn’t that much better than trial by ordeal. Instead of drowning people, making them drink poison, or setting them on fire, we subject them to other rituals that are not much more tethered to actual guilt or innocence. Instead of relying on faith in the Almighty to rescue a person accused of a crime, we now place our faith in a similarly powerful entity — the Department of Justice. Kozinski gives us little reason to think that faith is well-placed. There is, in fact, a reason to think trial by ordeal may be better — at least God isn’t trying to rack up stats to justify His work.

Kozinski’s piece is, essentially, a call toward empiricism — a call toward a more scientific approach — in our criminal courts. He is advocating for a system of criminal justice based on how the world actually is. His approach is grounded in science and real world information. Under Kozinski’s approach to how our criminal justice system should be, we should care how people and policies work, instead of our own a priori views on how people and policies ought to work.

This is not the way lawyers or judges typically approach the world. Lawyers and judges prefer to look at how the world has been described by other lawyers and judges and assume those folks were probably right.

Kozinski is, in essence, a lot like Gallileo. The law enforcement community is the Pope. Being correct doesn’t matter when you’re up against folks with the power to imprison who are institutionally threatened by your theory of the world.

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That said, what Kozinski’s arguing isn’t new. It’s been written about in one form or another for years. Similar points have been made by Judge Jed Rakoff, Judge Nancy Gertner, in books from Michelle Alexander’s The New Jim Crow to Bill Stuntz’s The Collapse of the American Criminal Justice System (affiliate links). The Cato Institute and Rand Paul have made many of the same arguments.

In light of this, why aren’t things changing? Why aren’t the people at the Department of Justice, or other law enforcement entities, using this as a spur to think about maybe not incarcerating so many people? Why aren’t judges in criminal cases worried about being right, rather than relying on the junk science of older judges?

If you read the press on what’s going on in our criminal courts, there’s a wide recognition that they’re broken. If you actually practice in them, virtually no prosecutors and very few judges seem to care. Why?

I think the history of hand washing suggests a nice explanation.

When observing the world was just catching on as a way to learn about how the world works — as opposed to just making up what it must be like — a Hungarian named Ignaz Semmelweis noticed that if doctors washed their hands and medical instruments when delivering babies fewer mothers and babies died.

He thought that was information worth sharing.

And, of course, the medical establishment, concerned with having fewer patients die and protecting itself — though not in that order — ridiculed him until he died angry and alone. Among other problems — like a blind, unthinking faith that the way they’d always done things must be the way they ought to be done — doctors just couldn’t get over the idea that their own uncleanliness had a role in such great harm to their patients.

So too with the law. Prosecutors and judges, for years, have meted out punishment based on a view about how people work and how the world works that is as justified as an argument that a doctor shouldn’t wash his hands before handling a patient. Yet it’s easier to keep doing what they’ve been doing than to recognize the harm that they’re causing, and have been.

Threats to power aren’t just threats to the ability to do things — they’re also threats to the way things have been done.

Eppur si muove.

Preface to the 44th Annual Review of Criminal Procedure [Georgetown Law Journal]

Matt Kaiser is a white-collar defense attorney at Kaiser, LeGrand & Dillon PLLC. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. Most of his clients come to the government’s attention because of some kind of misunderstanding. Matt writes the Federal Criminal Appeals Blog and has put together a webpage that’s meant to be the WebMD of federal criminal defense. His twitter handle is @mattkaiser. His email is mkaiser@kaiserlegrand.com He’d love to hear from you if you’re inclined to say something nice.

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