Kozinski on Criminal Justice, Part 2

15 Jul Kozinski on Criminal Justice, Part 2

In my last post, I wrote about Judge’s Kozinski’s recent Georgetown Law Journal article on the foundational presumptions in criminal law, and how both research and experience show these presumptions to be wrong.

Judge Kozinski’s conclusions on the shakiness of the foundations of the criminal justice system lead to two concerns: first, that more—perhaps many more—defendants are wrongfully convicted than we are willing to admit; and second, that those who are truly guilty are punished beyond what is sensible both in terms of retribution and in terms of deterrence.

In this post, I wish to briefly unpack Judge Kozinski’s prescriptions for criminal justice reform. In a final post in this three-part series, I will offer my observations on the article as a whole.

A. Juries

  • written copies of jury instructions
  • allow jurors to take notes, and give them a complete trial transcript
  • allow jurors to discuss the case while the case during trial, and not just during deliberation
  • allow jurors to ask questions during the trial
  • tell jurors the range of punishments available for the alleged crime
  • allow jurors to participate in sentencing

B. Prosecutors

  • require open file discovery
  • adopt standardized, rigorous procedures for dealing with the government’s disclosure obligations
  • adopt standardized, rigorous procedures for eyewitness identification
  • video record all suspect interrogations
  • impose strict limits on the use of jailhouse informants
  • adopt rigorous, uniform procedures for certifying expert witnesses and preserving the integrity of the testing process
  • keep adding conviction integrity units
  • establish independent Prosecutorial Integrity Units

C. Judges

  • enter Brady compliance orders in every criminal case
  • engage in a Brady colloquy
  • adopt local rules that require the government to comply with its discovery obligations without the need for motions by the defense
  • condition the admission of expert evidence in criminal cases on the presentation of a proper Daubert showing
  • when prosecutors misbehave, don’t keep it a secret

D.  Miscellaneous

  • abandon judicial elections
  • abrogate absolute prosecutorial immunity
  • repeal AEDPA § 2254(d), which severely limited the availability of federal habeas corpus relief in state-court cases
  • treat prosecutorial misconduct as a civil rights violation
  • give criminal defendants the choice of a jury or bench trial
  • conduct in depth studies of exonerations
  • repeal three felonies a day for three years

In looking at this list of proposed reforms, Judge Kozinski has identified a number of improvements of the criminal justice system for which there are few if any downsides. Given how glaring the defects are, and how clear the solutions, one can only wonder why we aren’t imposing these solutions already.

Judge Kozinski’s two-word conclusion, ” ‘Nuff said,” reads like an exhortation given the obviousness of the problems and the clarity of the solutions. There is nothing further to discuss. Let us fix the system.