Judge Kozinski on Criminal Justice

14 Jul Judge Kozinski on Criminal Justice

Last week, I posted on the presumptions the law (and the judges who implement it) makes in the area of citizen encounters with police.

In the latest issue of the Georgetown Law Journal, Judge Alex Kozinski, a brilliant and often enigmatic judge for the U.S. Court of Appeals for the Ninth Circuit, weighs in with a much broader overview of the basic yet erroneous assumption that form the basis of our criminal justice system.

In this post, I focus on his concerns. In a followup post, I will discuss the solutions he proposes.

Here is the list of conventional wisdom that he challenges:

  1. eyewitnesses are highly reliable
  2. fingerprint evidence is foolproof
  3. other types of forensic evidence are scientifically proven and therefore infallible
  4. DNA evidence is infallible
  5. human memories are reliable
  6. confessions are infallible because innocent people never confess
  7. juries follow instructions
  8. prosecutors play fair
  9. the prosecution is at a substantial disadvantage because it must prove its case beyond a reasonable doubt.
  10. police are objective in their investigations
  11. guilty pleas are conclusive proof of guilt
  12. long sentences deter crime

Included in the discussion of each of the listed presumptions are citations, sometimes extensive, to scholarship and studies that disprove the conventional wisdom and show the harmful effects that the adoption of such presumptions in the law causes.

Judge Kozinski’s initial conclusion is both bold and blunt. Because of the importance of these presumptions to our criminal justice system, and given the strength of the evidence against the these presumptions, there are reasons to question whether the system is fundamentally fair.

Of course, fundamental fairness is either the sine qua non of any criminal justice system, or the basic goal toward which the substantive and procedural protections that pervade our system are aimed–rights enshrined not just in the amendments to the Constitution but also in rules of evidence and criminal procedure.

Judge Kozinski draws two conclusions that are equally sweeping. First, we cannot say with confidence what the rate of wrongful convictions is, but given that our fundamental assumptions are so fundamentally mistaken, wrongful convictions should be a big concern. Second, of those who are rightfully convicted, we should question whether they are spending more time in prison that is necessary, appropriate, and just.

As Judge Kozinski writes, the stakes of our criminal justice system are high not just for those involved in the system, but for us all: “Much hinges on retaining [the belief that our system works very well and the errors, when they are revealed, are rare exceptions]: our self image as Americans; the pride of countless judges and lawyers; the idea that we live in a just society; confidence in the power of reason and logic; the certainty that none of us or our loved ones will face the unimaginable nightmare of unjust imprisonment or execution; belief in the incomparable integrity and accuracy of our system of justice; faith that we have transcended medieval methods of conviction and punishment so that only those who are guilty are punished, and their punishment is humane and proportionate.”

If we persist in perpetuating the basic but erroneous presumptions of which Judge Kozinski writes, then we must also face the uncomfortable fact that we have failed to live up to these beliefs as well.