Punishment and Procedure: A Different View of the American Criminal Justice System

Article excerpt

In a recent issue of this journal, Professor Michael Seidman notes that while we have "the most elaborate and detailed constitutional protections for criminal defendants of any country in the world," we also have "the second highest incarceration rate of any country in the world."(1) From these premises, he goes on to argue that our constitutional protections, which he views as "intended to make prosecution more difficult," have been so weakened that instead they "serve [to] make the prosecutor's job easier."(2) He complains that "the Fourth Amendment is so riddled with exceptions and limitations that it rarely prevents the police from pursuing any reasonable crime control tactic";(3) that "judges have virtually gone out of the business of actually policing the voluntariness of confessions and regularly sanction the sort of coercive tactics that would have led to the suppression of evidence a half century ago";(4) and that courts tolerate courtroom performances by counsel "that make a mockery of the formal protections [of the sixth amendment]."(5)

The picture that Professor Seidman draws of a barbaric system in which constitutional protections are not nearly as strong as they ought to be if they are to protect defendants from such a system might not seem the meat for a response. After all, his picture of the system was tossed off with broad brush strokes in a brief essay. But two reasons compel me to respond to Professor Seidman's picture of the system. The first is that this picture of a system of brutal unfairness is common in law review writing and is often used to justify extreme positions on legal issues. Consider, for example, an essay by Professor David Luban, entitled Are Criminal Defenders Different?,(6) in which he argued that a more aggressive level of advocacy is justified in criminal cases than is appropriate in civil cases because our criminal justice system is so unfair. Like Professor Seidman, Professor Luban claimed that prosecutors "enjoy overwhelming procedural advantages"(7) over the defense in the American criminal justice system. Again, like Professor Seidman, he considers the American criminal justice system to be overwhelmingly harsh in its sentencing of defendants. For Professor Luban, proof of the harshness of the system lies in the fact that we have "the dubious distinction of having a higher percentage of our population under lock and key than any nation in the world, including the pre-Glasnost Soviet Union, post-Tiananmen Square China, and pre-deKlerk South Africa." He goes on to ask, "Is this `political abuse'? I believe that it is."(8)

My second reason for responding to Professor Seidman is that he offers this picture of a system that is terribly unfair to defendants at a time when broad segments of the public are angry at the system for exactly the opposite reason. Statement after statement from victims complains angrily that the criminal justice system cares about little except the rights of defendants and systematically ignores the interests of victims or the broader public.(9) These complaints are backed up by public opinion polls that show that the public has little confidence in the criminal justice system(10) and very low respect for lawyers in general." In the wake of recent high publicity cases, one wonders if public confidence in the system might not sink to even lower levels.

Because I believe that the picture offered by Professor Seidman is inaccurate, I want to criticize that view of the system and offer a different view, in which punishment and procedure are synergistically related. Readers can decide which view of the system is more accurate, understanding of course that both pictures are painted with broad strokes. But even if readers disagree with the view of the system I will put forward, they will at least better understand the public anger directed at the system, because my view of the system is much closer to the views of the system offered by victims and others outside the system than it is to the picture presented by Professor Seidman. …