In yesterday’s guest-blog post on my new book, I discussed some of the ways in which criminal justice developed from a common-sense morality play into a professionalized machine during the nineteenth and twentieth centuries. Now I want to describe what the gulf between criminal justice insiders and outsiders looks like today; offer a few examples of the tug of war that erupts between the two sides; and explain some of the hidden costs of this gulf.
By insiders, I mean the lawyers and other professionals who run the machinery of criminal justice: the prosecutors, police, probation officers, judges, and even defense counsel. They are knowledgeable about investigations, crimes, and punishments. Back when jury trials were common, insiders were primarily adversaries, but now both sides’ lawyers collaborate in plea bargaining; cynics might even call it collusion.
Though prosecutors and police are nominally agents of the outsiders whom they supposedly represent — victims and the public — outsiders lack the knowledge and leverage to effectively oversee how insiders do their jobs. Insiders tend to mellow over time, and their practical concerns about huge dockets and fear of losing trials (risk aversion) make them especially pliable in plea bargaining. Finally, as lawyers, insiders are taught to weigh costs against benefits, focusing on neutral, amoral criteria such as speed and cost.
Outsiders see the system quite differently. They see little of police enforcement decisions, plea-bargaining conversations in courtroom hallways, or secret grand jury proceedings, and receive little notice or information even about proceedings that are public. Sensational media accounts and crime dramas lead the public to imagine that sentences are lighter than they actually are. In addition, victims and members of the public have few opportunities to participate and have their day in court, or even to see what’s going on. Finally, outsiders do not mellow or become jaded, and they view crime in moral terms, not economic ones.
The gulf between insiders and outsiders breeds a tug of war between the two sides. In America, the law on the books is often tenuously related to the law in action, because police and prosecutors have pervasive discretion in deciding which laws to enforce in which cases and how vigorously. In other words, criminal laws create not binding obligations, but a menu of options for insiders to exercise or not.
So, for instance, police choose not to make troublesome arrests, or prosecutors bargain down charges or sentences, to get rid of troublesome cases. For a long time, they viewed drunk driving, domestic abuse, and date-rape cases as not very serious and (in the latter two cases) hard to prove, so police would avoid making arrests and prosecutors would bargain the cases away to get rid of them. (Those are about the only crimes I can think of where popular outrage has been loud and sustained enough to bring about an enduring shift in arrest and prosecution practices.)
When the public sporadically gets angry about a criminal justice problem, perhaps because of media hype, it may clamor for new crimes or mandatory-minimum sentences. What the public doesn’t see, however, is that insiders’ procedural discretion usually undercuts these reforms, turning even so-called mandatory sentences into chips to be bargained away. If the public gets angry about plea bargaining, it may even try to limit prosecutors’ ability to plea bargain through ballot initiatives and referenda. But even then, prosecutors find ways around such laws.
Now, some readers probably aren’t too troubled by this. If you think lawyers know best and voters are benighted, you might be tempted to applaud how lawyers subvert democratic accountability and responsiveness in order to process cases efficiently.
But the costs are considerable. The tug of war wastes prison resources, unduly lengthening some sentences and shortening others based on defendants’ plea-bargaining behavior rather than what they deserve. It leaves insiders vast discretion to apply new laws selectively, opening the door to discrimination or arbitrariness. It leaves outsiders disempowered, and it thwarts democracy. In particular, it undermines trust in and the legitimacy of the criminal law, and it prevents the public from monitoring its agents and ensuring that they are following the will of the people.
Back when jury trials were common, citizens could oversee prosecutors and intervene carefully at the retail level as jurors. And when counties were smaller and criminal justice was more local, they had a better sense of local crime problems and priorities and so were better able to keep the police in check, neither too tough nor too aloof.
But now that jurisdictions are much larger and most citizens learn about criminal justice from television, outsiders can intervene only crudely. At best, they can paint with a very broad brush by voting and influencing legislatures. At worst, they must pass laws that read like bumper-sticker slogans, such as three-strikes laws and mandatory minimum sentences, because they have lost faith in insiders and lack subtler tools to limit leniency and ensure equality. What should have been a cooperative relationship has degenerated into a competitive one, as outsiders wield these sledgehammers and insiders feel they have to evade their crude blows.
At root, these difficulties stem from what economists call the principal-agent problem. Prosecutors and police are supposed to serve victims and the public interest, but those voices are so diffuse and powerless that there is really no identifiable client to constrain how the agents do their jobs. (The book offers a similar critique of the relationship between defendants and their lawyers.) In tomorrow’s blog post, I’ll propose a fairly radical shift in how to think about the stakes in criminal justice: loosening the state’s monopoly on criminal justice by once again giving victims a central role.