Published by Farrar, Straus and Giroux on February 16, 2021
Jed Rakoff covers much more than the two topics featured in the title of this brief overview of the problems that plague the judicial system. His first chapter discusses America’s ridiculous overreliance on incarceration as a solution to crime. He acknowledges a correlation between a declining crime rate and a swelling prison population while reminding the reader that correlations do not prove causation. When I was taking criminology decades ago, I remember a professor arguing that crime rates correlate with age because “crime is a young man’s game.” Crime rates may well have fallen because baby boomers got older, not because more of them were locked up. In any event, Judge Rakoff explains that mass incarceration has social costs that must be weighed against the potential benefits of a declining crime rate. Another punishment chapter explores the perils of using the death penalty in a system that is plagued by mistake and racism.
A few chapters explore the reasons that the judicial system so often imprisons the innocent. Mistaken eyewitness identifications and junk science masquerading as forensic science are two of them. Both subjects have been explored at length in other books and journal articles, but Judge Rakoff’s book is a good introduction for readers who want a quick summary. I particularly liked the judge’s advocacy of the suggestion that forensic science should be conducted by independent organizations, not by crime lab technicians who regard themselves as working for the police. Science should be neutral, but forensic scientists who see themselves as “helping” the police have a proven tendency to slant their conclusions to support an arrest.
The innocent plead guilty because they fear they will get a longer sentence if they risk a trial and lose. The risk is appreciable, given the evidentiary problems and biases that impair the system’s fairness. Judge Rakoff calls for greater judicial involvement in plea bargaining (although perhaps not involving the judge who presides in the case) to assure that the evidence actually supports guilt and that the defendant is actually guilty.
A chapter on brain science is again a useful introduction to the uneasy relationship between a judicial system that holds people accountable for intentional misconduct and a branch of science that can’t tell us what the word “intends” even means. Again, excellent books and articles have been written on the subject that explore the topic in greater detail.
Some of the middle chapters tackle problems in more depth. I particularly liked Judge Rakoff’s nuanced explanation of the Justice Department’s failure to prosecute corporate leaders for financial fraud, opting instead to “change corporate culture” by entering into deferred prosecution agreements with corporations that the companies view as a cost of doing (fraudulent) business.
Other detailed chapters bemoan the federal courts’ loss of authority to correct unfairness in the state criminal justice systems, largely through a whittling down of habeas corpus review. In that context, Judge Rakoff explores the impact of the “war on terror” on the loss of federal authority to assure that states respect the federal Constitution. Congress and conservative justices on the Supreme Court have been complicit in assuring that profoundly unfair decisions in state court, as well as unjust detentions at Guantanamo, are largely ignored by the federal judiciary.
Political observers have long documented the rise of executive branch power at the expense of congressional oversight. Judge Rakoff suggests that judicial oversight of the executive branch in our system of checks and balances has been nearly abandoned by the Supreme Court (particularly, I would add, when the president is a Republican). The judge offers a history lesson that stretches from the Supreme Court’s first Chief Justice to explain how the Court’s view of its institutional power is rooted in a politically expedient deference to a branch that holds greater power (lacking command of a military, the judiciary depends on the executive to enforce its decisions). That deference is particularly strong when the executive branch claims authority to trample rights in the interest of national security.
Along the same lines, Judge Rakoff examines judicial doctrines, including narrow interpretations of standing (the rules that determine who has suffered an injury that entitles a litigant to sue) and the political question doctrine (the notion that some issues, like gerrymandering, are better decided by legislatures than courts), that shield governmental misconduct from review. Another chapter discusses the difficulty of obtaining access to the civil judicial system for a variety of reasons (such as the prevalence of arbitration agreements and the cost of hiring a lawyer — a cost that banks foreclosing a mortgage can bear more easily than homeowners facing foreclosure). He returns the discussion to the criminal justice system by emphasizing an earlier point about the ways in which defendants and their lawyers have grown increasingly powerless, as sentencing guidelines and other procedures divert decision-making authority from judges to prosecutors, who often decide (regardless of the defense lawyr's skill) not just the crime of conviction but the sentence that will be imposed. That regime has resulted in ever-increasing sentences.
All of this will be familiar to people who follow law and the judiciary. The system really is broken. It has been for years. For those who aren't familiar with the problems that Judge Rakoff spotlights, the book serves as an excellent introduction to a variety of problems that need to be addressed. Judge Rakoff suggests possible improvements at various places in the text, but meaningful improvement will only come if America insists upon Supreme Court justices who value justice more than their interest in maintaining a system that is largely designed to keep power in the hands of the powerful.
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