Punishment and procedure: a different view of the American criminal justice system.
Author | Pizzi, William T. |
Position | Response to Louis Michael Seidman, Constitutional Commentary, vol .207, p. 207, 1995 |
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.
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A PRELIMINARY MATTER: JUDGING A SYSTEM
BY ITS INCARCERATION RATES
Both Professors Seidman and Luban make dramatic use of the high incarceration rate in the United States when compared with other western countries. In 1993 the United States had an incarceration rate of 519 citizens per 100,000.(12) This is roughly ten and a half times that of the Netherlands (49), eight times that of Norway (62), six times that of Germany (80) and France (84), and five and a half times that of England/Wales 93).(13) But while these statistics are sad and disturbing, are they a fair measure of how harshly particular defendants are actually sentenced and do they show a criminal justice system that is repressive and unjust? The answer is no. Because these figures do not take into account other societal factors such as the strength of the particular country's social services system, the availability of handguns, the rate of violent crime, the extent of the country's drug problem, etc., these dramatic figures do not tell us nearly as much about the criminal justice system in those countries as these figures in isolation would suggest. Ken Pease, an English criminologist who has tried to determine the level of comparative punitiveness among European countries, concluded that measuring a country's punitiveness according to the number of its citizens incarcerated compared to the country's total population "is liable to produce misleading results."(14)
A recent article by Professor Richard Frase comparing sentencing practices in France with those in the United States illustrates just how difficult it is to compare different countries, even when the comparison is limited to only two countries.(15) He describes France as a country that makes "very sparing use of custodial penalties" and as a country with a "less punitive attitude."(16) He then explains how hard it is to document statistically the conclusion that France is less punitive than the United States because, among other problems, crimes are categorized differently and data are often not comparable between the two countries or are simply unavailable.(17) Doing the best he can with the figures, he concludes that "it seems likely that, overall, fines and other non-custodial sentences are used less often in the United States than in France," and that "[i]t may also be the case that custodial terms are, on the average, longer in the United States."(18) These are rather tenative conclusions considering that the incarceration rate of France is one-sixth that of the United States.
This is not to claim that the United States does not punish criminals more severely than many or even most other western countries. But it is difficult to find data that would show exactly how much more criminals are punished in the United States and whether this is true for all crime categories(19) and for all regions of the country. Like Professor Frase and other comparatists, I believe it to be the case that defendants in the United States are generally punished somewhat more severely than similar defendants on the continent. I am also worried that whatever disparity exists at present may be aggravated as legislatures continue to enact mandatory sentences (such as the "three strikes" legislation in California) and to increase sentencing ranges generally. Thus, in this article I will assume what I believe to be true - that defendants in the United States tend to receive sentences that are somewhat longer than those they would receive in other western countries and that some defendants in the United States receive sentences that are much harsher than they would receive in Europe (including a death penalty, which does not exist in Europe). But while not denying that we have serious problems in our criminal justice system with the harshness of certain laws, I do not think it is fair to our system to use raw incarceration figures to suggest the system as a whole is barbaric or repressive, or to suggest that all defendants receive sentences in the United States that are terribly unfair and unjust. These comparative incarceration figures mean far less than they appear to mean. At a time when our criminal justice system has many serious problems, I do not think it is helpful to exaggerate the problems that do exist.
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INCARCERATION RATES AND DEFENDANTS'
RIGHTS
Professor Seidman presents the picture of a system in which constitutional protections have not done the job of protecting suspects, and as evidence of this, he points to our starting incarceration rate. He thinks prosecutors have an easy time of it in the United States, with most of our protections watered down and full of exceptions. This logic would certainly suggest that if we look to European countries with low rates of incarceration we would see criminal justice systems that make the prosecutor's job much more difficult and protections for defendants that dwarf those that exist in the United States.
But when you look at those systems, the relationship that Professor Seidman assumes...
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