The new criminal justice experts: the public

The criminal justice system is made up of several, mostly unequal parts. At the top of the food chain sit the prosecutors, lording over all that they survey, with supreme control over the futures of thousands of individuals. Then come the judges, who are increasingly former prosecutors who echo the demands of the current prosecutors. Lagging behind – a long way behind – are criminal defense attorneys, whose roles have been sidelined to bleating and begging for a break here and a break there. We, the CDLs, are fast becoming used car salesmen. The defendant is somewhere there, in the mix, usually an unseen and amorphous blip on the radar on the horizon, hardly ever a thought in the negotiating process.

But there are two others who, from behind the scenes, feed into and subconsciously manipulate a once well-regarded (even if only by those who were a part of and beholden to it) justice system: the ill-informed general public and the media who control their puppet strings by refusing to provide any measure of nuance and education in their sensationalist stories about every case that happens to cross the docket (my previous media diatribe here).

(Former) Judge Nancy Gertner, writing for WBUR, makes a compelling argument that the media irresponsibility is much to blame for the current state of affairs in the justice system:

A decade later came the shock jocks and 24/7 pundits. What the public thinks about the crime, and thus what the criminal “deserves,” came to be shaped — indeed inflamed — by the press.

Meanwhile, criminal justice experts were sidelined. As Duke University law professor Sara Sun Beale argued in the aptly titled 1997 article “What’s Law Got to Do With It?” — criminal justice policy is largely driven by the media. The good news of falling crime rates over the past two decades was rarely reported; the nightly news famously reflected the principle, “if it bleeds, it leads.” The result? Popular punitiveness trumped everything, whether or not it bore any relationship to good public policy.

We’ve all seen it: there is almost a formulaic nature to the reporting of criminal cases in the “news”: a massive headline when someone is arrested for a crime with information taken mainly from the arrest warrants, with little to no mention of the range of sentences or a critical view of the facts as presented by police.

[This, on the other hand, sets up an interesting conflict: people seem increasingly suspicious of police activity as a whole and are cognizant of the creeping police state in general, yet blindly buy and accept whatever accusations are reported in individual, specific cases. I’m sure there’s a term for it, I just can’t seem to remember it.]

More often than not, these stories posted on news websites have accompanying comment sections which are usually in ascending order of bloodthirstiness and seem to be some sort of competition for who can make the most clueless, sensationalist and incendiary comment. Often, people put more thought into typing their name in the comment box than the comment itself.

This, of course, is the point, from the media’s perspective. Getting people riled up and angry leads only to more fervent hitting of the F5 button to see who else joined them in their righteous denunciation  of “criminals” and to find comfort in mobs. If the story were presented with a nuanced, critical view, most people either wouldn’t understand or realize that they probably should wait before making up their minds. That doesn’t serve up pages, so it’s of no use.

Reporters covering courts are increasingly modeling themselves as nothing more than transcriptionists: writing down verbatim whatever happens in court and regurgitating it on paper, without giving the reader the tools to process the story and place it in proper context.

Maybe they don’t realize it – or maybe they do – but this irresponsible style of “journalism” has a devastating trickle-down effect on the functioning of the system. Pretty obviously, it affects potential jurors, to many of whom arrest equals guilt and any crime should be punished “to the fullest extent of the law”. Second, it has lead to an increasing “victim creep” in the workings of the system. It seems increasingly that the reporting casts proposed resolutions in two lights: the right result and the wrong result. The right result is often what the victim of a crime was seeking – and almost always the “right” result is the stiffer penalty – and the wrong result is the more “lenient” sentence.

To be sure, victims should have a voice in the process and should be able to express their demands, however unrealistic. For them, it’s usually a deeply personal violation and I have no problem with a victim demanding the moon. Because usually, they have no direct voice in the process. They are filtered through the State’s Attorney or the Victim Advocate, just like the defendant is filtered through us.

But there’s been a shift in the tide: while we, as CDLs, are continually expected to be “reasonable” about dispositions and to explain to clients on a regular basis how their expectations are unrealistic, the proposed resolution coming from the other side is almost never so critically questioned or dismissed.

Prosecutors demand whatever number they feel is appropriate, without an explanation for why that number has been chosen (and indeed, as Judge Gernter points out), the number often is a simple and pure fabrication. We do it too, you know. But judges are more likely to look askance at our number than the State’s. And when the prosecutor’s number is reported and portrayed as the right number by an uncritical press to an unsuspecting public, it’s easy to see how anger toward defendants, defense counsel and the system in general multiplies. “The victim and prosecutor wanted 10 years in jail, but the defense lawyer asked for 4! They should just kill all the animals now and get it over with!”

Nevermind that 10 was an absurd number to begin with, or as the example used by Judge Gertner illustrates, was objectively unreasonable. She writes further:

Never do you see the opposite: a columnist decrying a sentence that was too high or a reporter noting that these sentencing lengths are just arbitrary numbers – five, 10, 15, 20 – without any relationship to what works to deter crime, what is cost effective, etc. And they are “just” numbers that will inevitably increase over time, precisely because they are contentless.

They do not reflect expert opinion about proportionality — for example, measuring relative sentences across crime categories or comparing nonviolent drug sentences to sentences for violent crime. They don’t consider alternative approaches. They don’t evaluate recidivism, whether drug treatment programs in certain instances will work better than incarceration.  These numbers only reflect the public’s and the district attorney’s spleen – and so whatever the number was before the sentencing of this defendant, they “must” be higher in the next case, with the next defendant. There is, in short, no end.

It also has the unfortunate side-effect of making the liberty of an individual caught up in the system a game: In a fight between the state’s 10 and the defense’s 4, we end up with a number closer to 10 than to 4, not because that’s the appropriate number, but because it’s the most acceptable form of compromise. Nevermind that this particular individual deserved treatment, a short stint in jail and a lengthy period of supervision. Because how are people going to react to that?

We’ve lost all content in this modern-off-with-their-heads world. A year is a damn long time: think of all the things you’ve done in the last year and take them away. Then take away your mobility, your freedom and imagine yourself confined to a single 8×10 room with someone telling you when you can get up, when and what you can eat and who you can talk to. Then multiply that by 2 or 5 or 10 or 50. We throw these numbers around – MAXIMUM JAILTIME! – like they mean nothing. And they don’t, to us, because no one tells us that they mean something. Because the institutions that we turn to in order to give us context and information regularly fail to do so. They’re conditioning us and we’re becoming all too happy to let someone else do the thinking for us.

It is not enough for the press to say “we’re merely reporting the facts; let people make up their own minds”. I think the press should have a greater responsibility than that. A responsibility to follow up on arrests they report; to try to and provide context for resolutions; to do more than just repeat the assertions made in warrants or reproduce them as proven fact.

Now, I’m not saying that the press’ coverage takes all blame. Certainly not. We are all to blame too. Defendants are to blame for committing these acts; judges are to blame for coddling prosecutors and prosecutors are to blame for seeing an opportunity to get tough on crime and steamrolling through it. We say we’re lawyers, but those of us in the criminal justice field are also in the human business. We’re dealing with real people and the worst kinds of consequences that can befall another fellow human being, whether it be as a victim or a defendant.

We keep forgetting that and there’s no one there to remind us.

(Disclaimer: I know I shouldn’t have to say this, but just see above: while this may come off as a sweeping rant against every single person who has written for a news organization ever, don’t be that naive. Of course there are judges and prosecutors and reporters who do a damn fine job. Of course there are thoughtful sentences and appropriate sentences and of course there are defendants who deserve the moon and get a GPS satellite in geo-synchronous orbit. But the overall point still remains. So don’t come yelling at me. Use your head for a minute. Think about it.)

Update: Two more blawgers have written about this very thing. First, the Greenfield has this post and second, Matt Brown follows up with this one.