White-Collar Crime

DOJ Identifies The Most Important Problem With Our Criminal Justice System And Takes Action

The DOJ isn't having any of your petty concerns.

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Judge Kozinski wrote a preface to the Georgetown Law Journal’s Criminal Procedure Project questioning large swaths of the criminal justice system. He criticized how forensic evidence is used, how juries are instructed, whether long sentences deter crime, whether confessions are as reliable as we think, and whether many of our core beliefs about the criminal justice system — like that the requirement for proof beyond a reasonable doubt is meaningful — are actually true.

He also said that some prosecutors don’t play fair.

If what Kozinski wrote is true, then we have serious problems with how we incarcerate people and need to rethink virtually every piece of our criminal justice system. If Kozinski is right, the way we prosecute and imprison people is a deeply irrational system little better than a roll of the dice.

The Department of Justice has just sent a response to the Georgetown Law Journal.

In it, two career DOJ lawyers, horrified at the prospect that their life’s work could have resulted in the imprisonment of innocent people, and deeply concerned that there are profound systemic problems with our criminal justice system, called for: law enforcement to adopt methods of interrogation that have been demonstrated as more reliable; a rigorous method for peer reviewing forensic science before it’s used by people outside of law enforcement; an across the board reduction in offense levels under the federal sentencing guidelines; and a commission made up of prosecutors, defense lawyers, and judges to study better ways to instruct juries that are informed by the latest scientific literature on how people receive and process information.

Oh, no, wait, that’s what they would have done if they cared about making our system better. Instead, they filed a response saying that they really think that most prosecutors are good people.

Perhaps, as the DOJ response suggests, the biggest problem with our criminal justice system today is that prosecutors are sometimes criticized and that hurts their feelings, but I don’t think so.

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AUSAs are people. And, sure, they have feelings, but they also have flaws.

The authors of the response write:

Throughout our careers, what has always struck us is the professionalism, integrity, and decency of our colleagues. They care deeply about the work that they do, not because they are trying to rack up convictions or long sentences, but because they seek to ensure that justice is done in each and every case they handle.

To be clear, I do think the vast majority of AUSAs are fundamentally good people who are trying to do what they do with integrity. I also think that the vast majority of AUSAs are bright aggressive lawyers who want to win.

Federal prosecutors aren’t trained to read rules or facts to give an edge to the other side. They don’t high-five each other for giving someone suspected of a crime the benefit of the doubt. They don’t send at-a-boy emails to their colleagues for the exercise of discretion in favor of leniency.

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It isn’t a question of whether federal prosecutors are good people; it’s whether these people, trusted with enormous power, are exercising that power in the way they ought.

The DOJ response congratulates the Department for making changes in the face of criticism:

At the Department of Justice, we recognize our responsibility to work tirelessly to improve the work that we do, and to enhance the fair administration of justice. For that reason, the Department has moved aggressively on several fronts—whether on a new policy that requires our agents to record custodial interrogations, or our decision to create a national commission to enhance forensic science, or our efforts to limit the application of harsh mandatory minimum sentences to non-violent drug offenders.

To describe these efforts as “working tirelessly” is to make Garfield seem industrious.

A requirement to record custodial interviews is good, but also leaves out noncustodial interviews. And DOJ came to this party late, after many state and federal governments already made this policy shift. More fundamentally, there are massively more effective ways to get reliable statements; DOJ just isn’t interested in them.

The national commission DOJ established on forensic science was so slanted that Judge Rakoff resigned from it in protest (he later rejoined) and it was only done years after the problems with how we use forensic science were blindingly apparent.

And, yes, DOJ has done some work on mandatory minimums. But even when you strip away those mandatory minimums for drug crimes, we still way over-incarcerate compared with the rest of the world. And DOJ keeps asking the sentencing commission to increase the sentencing guidelines on an array of offenses.

The DOJ response makes it clear that the Department does want to solve one problem — the problem of people criticizing DOJ. If that’s our biggest problem, they’re making great strides.

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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