The Machinery of Criminal Justice
Author: Stephanos Bibas
New York: Oxford University Press. 2012. 285 pp.
Reviewer: Ronald Wright | September 2012
Stephanos Bibas is an expert skeptic of expertise in criminal justice. He has written a wide-ranging book that traces the historical rise of “insiders” – full-time professionals – in American criminal courts, and makes the case for injecting more public participation by “outsiders” into today’s mechanized and specialized system.
This embrace of populism as a counterweight to expertise sets Bibas apart. The academics and professionals who work in criminal justice routinely look for ways to insulate criminal punishment from popular passions; they hope to take advantage of specialized professional insights. Bibas offers a bracing challenge to this received expert wisdom.
Summary of Bibas’ Argument
Like many other legal scholars, Bibas combines the analytical tools of different social sciences to shed light on legal institutions. In Chapter 1, he wears his historian’s hat. The prosecution of criminal charges by the victims themselves, together with the small community setting of most courts, made early American criminal systems more participatory and transparent than they are today. Over time, Bibas says, state-paid prosecutors and defense attorneys replaced crime victims as the initiators of criminal cases, plea bargains replaced juries as the ordinary disposition of a criminal case, and punishment hidden behind prison walls replaced more public punishments. The historical trend that Bibas notes toward an expert-oriented system is real, though not surprising. The same trend toward greater specialization and professionalization happened in virtually every corner of government.
In Chapter 2, Bibas wears his economist’s hat. Drawing on public choice theory, he builds a stylized account of the cyclical struggle between insiders and outsiders in criminal justice. When insiders – prosecutors, defense lawyers, judges, police, and probation officers – take positions in criminal justice, they redirect standard practices to suit their own interests. For instance, they reach speedy bargains and reward cooperative defendants to dispose of more cases, more efficiently. The outsiders – victims and the public at large – then respond by trying to block the efficiencies that insiders build. They convince legislators (who also stand outside the daily operation of criminal justice) to create new crimes and sentences based on the atypical glimpses of the system they obtain through the news media – think of mandatory minimum sentences, or limits on the use of sentencing guideline departures in the federal system. These new crimes and punishments reassert the outsider’s view of criminal justice as a morality play rather than an efficient machine. Insiders, in turn, respond to these crude, simplistic limits by creating new ways to lighten their workload. Their efforts inevitably succeed because the full-time insiders devote far more time and energy to this work than part-time outsiders are willing to contribute. This “tug of war” continues indefinitely. Bibas’ theoretical model probably does not explain all new crime legislation: for instance, some new criminal statutes expand the powers of some insiders (particularly prosecutors), without aiming to limit the range of outcomes that insiders could produce. The cycle he describes, however, does offer a believable explanation for long-term public frustration with the criminal courts.
In Chapter 3, Bibas wears his psychologist’s hat. He explores one of the major costs of treating criminal justice as an efficient machine for dispensing punishment: it ignores the relational aspect of crime. A system that focuses exclusively on assessing the blameworthiness and dangerousness of a wrongdoer misses something profound: crime is a rupture in relationships. The most effective responses to crime must encourage a defendant’s remorse and apology and a victim’s forgiveness. In procedural terms, this entails heavier limits on the use of Alford pleas, greater use of victim and defendant statements in the courtroom, and more experimentation with mediation.
Chapter 4 shows us Bibas as political scientist, asking how to make government responsive to new voices. He argues for a loosening of the state monopoly on criminal justice, allowing heavier input from victims and community members. In particular, he critiques the incomplete success of three recent trends in criminal justice: therapeutic jurisprudence, restorative justice, and the victims’ rights movement. Each of these movements imperfectly combines Bibas’ preferred means (non-expert input) with his preferred end (the repair of relationships that are damaged by crime). For instance, Bibas argues that the victims’ rights movement has become unbalanced because its advocates unthinkingly ask for more punishment in every context, “forgetting that the end is reconciliation or atonement.”
In Chapter 5, Bibas takes a spin as a moral philosopher. He poses this question: given the strong public interest in criminal law as a way to condemn moral wrongs, why do insiders treat criminal law instead as a technocratic exercise in delivering public safety? Part of the answer is insider concern about the vengeful and intolerant outcomes that outsiders might produce if their moral judgments were to direct the system. Bibas responds to this concern with a review of empirical research by Paul Robinson and others, showing that lay judgments in concrete cases (as opposed to their opinions on criminal justice issues framed as abstractions) can be proportional and nuanced.
Finally, in Chapter 6, Bibas takes the role of public policy analyst, developing a menu of possible changes to criminal justice institutions that would create greater outsider input to balance out the work of the professional insider experts. His ideas begin with macro-level reforms of available sentences, with an emphasis on work rather than isolation in prison. Bibas then moves to mid-level reforms of prosecution and police organizations through the release of data about their performance and priorities. His micro-level reforms include multiple forms of victim consultation and “restorative sentencing juries.” This latter mechanism would allow outsiders to check insiders: jurors would hear prosecutor explanations for why a defendant (even one who pleads guilty) deserves a particular sentence.
The strong point of this chapter is the decentralized and non-systematic method of Bibas’ program. It is fitting for a populist agenda that Bibas gives everyone some place to plug in. He does not create a sequential set of objectives, or a single pivotal piece of legislation, or a single crucial doctrine for the U.S. Supreme Court to endorse. These institutional reforms do not call for a top-down populism.
The eclectic nature of Bibas’ reforms is also a weakness: the discussion comes across like a well-organized shopping list. What it lacks is a connection to organic social and economic incentives that one might harness to make Bibas’ vision for criminal justice a reality. Could these reforms on behalf of outsiders become a self-perpetuating virtuous cycle, rather than a series of battles to be fought again and again? The most important of these trends may be information technology and social networking applications of the technology. Although Bibas discusses consumer ratings and other web-based forms of input, I think of this as more than just one promising idea about how to promote popular input. This is a way of thinking and interacting that can transform government (not just criminal justice) just as it is transforming certain parts of the economic marketplace.
Populism in the Intellectual Landscape of Criminal Justice
In The Machinery of Justice, Bibas is not a Luddite, determined to smash the machine. He does, however, want to convert the machine to run on a new blend of fuel.
The optimal blend of technical expertise and popular values in criminal justice is a difficult question, but it has produced a decisively one-sided debate among scholars and practitioners. The consensus position for several generations has been distrustful of the crowd. Legislators, in this view, have every reason to favor “tough on crime” policies, because voters demand them and felons are not an influential constituency. This produces, in William Stuntz’s famous phrase, the “pathological politics of crime.” Legislators align with prosecutors, giving them more crimes and more punishment options with predictable regularity.
The best strategy in such a world, according to the expert consensus, is to insulate crime policy from crime politics. Create sentencing commissions to assemble the best available evidence on recidivism and to set sentencing rules that account for available corrections resources. Remove judges from electoral politics. Beef up judicial controls over the choices of elected prosecutors. To the extent possible, criminal justice policy should resemble public health policy, with less public involvement and more deference to experts.
The minimization strategy – keeping popular influence over criminal justice as small as possible – has failed. Many believe it has failed because political figures, the media, and other elites benefit from manipulating public opinion; they cannot help themselves. The minimalists say that the best response (putting aside despair) is to redouble our efforts to remove politics from criminal justice.
Bibas, on the other hand, believes that minimization fails because artificial restrictions on popular input in the criminal process have distorted its historical and healthy functions. More popular input for a system dominated by experts is his prescription.
This is an important insight; over the years, I have also come to the view that it is a fruitful strategy. By and large, I think we currently get the worst of both worlds, the technocratic and the populist. In trying to move out of that bind, we need more public participation and more public buy-in.
The challenge is to find those settings where public input can happen while retaining a sense of proportion. As a rule of thumb, this takes place when the public understands the whole context for the crime and the punishment. Voters favor more modest punishment levels when they concentrate on the tax revenues needed to run a massive corrections system. Jurors reach more nuanced judgments in particular cases as they learn more about the defendant’s circumstances. Community members have more ambivalent views about punishment when they live in the same neighborhood where the wrongdoers live and where they inflict their harms. People on the scene in the community ask for different crime policies than those who live further from trouble, those outsiders who only plan to send one message to prospective criminals: “Stay away, or else.”
This is a perennial problem of democracy, and it is especially pointed in matters of crime. How do we create systems that combine the professionalism and knowledge of experts with popular input that is based on deliberation rather than our first and worst impulses? How do we save us from ourselves?
Ronald Wright is the Needham Y. Gulley Professor of Criminal Law at Wake Forest University.