Much of what we do in the law is guesswork
January 1, 2016 6:30 PM   Subscribe

12 reasons to worry about our criminal justice system, by 9th Circuit Judge Alex Kozinski [PDF]
posted by T.D. Strange (16 comments total) 36 users marked this as a favorite
Or is it because jurors almost always start with a strong presumption that someone wouldn’t be charged with a crime unless the police and the prosecutor were firmly convinced of his guilt?

My incredibly (thankfully) small interaction with the legal system gives the (invalid rigorously) statistical observation that the folks lined up to be prosecuted are scary bad guys.

Why has "forensic science" validated or disproved that observation. Scare quotes around forensic science as from this article it's seems far far from any kind of science. But it may be that a vast majority of the bad guys in jail are actually criminals. It'd be a really good thing to actually know that to a specific p-value with the studies replicated often enough that it's not voodoo science.

Really good to see a significant established judge voice doubt about a system that should be based on reasonable doubt and may not often enough, certainly not often enough for poor and black people.
posted by sammyo at 7:10 PM on January 1, 2016 [1 favorite]

In much of the developed world, formulation of criminal laws, measures for punishment and rehabilitation, scientific bases for review of evidence and testimony, etc. are part of a continuous process of refinement, to the point that they speak of law as a "science." But here, we have judges with no particular training or expertise, juries who we choose BECAUSE they have no expertise, rules of evidence rooted in archaic practice rather than modern scientific understanding of the human mind, prosecuting attorneys whose job is to convict rather than seek truth, and case law that's a complete mess. And we're surprised that our criminal legal system is incapable of finding its own buttocks with both hands?

Study of comparative law in American law schools has been basically eliminated. How surprised American lawyers are when they discover that our legal system is outmoded muck, if they ever find it out. Just kidding! They get turned out of law school so prejudiced in favor of trash like jury trials, adversarial process, hearsay rules, and the like that they're incapable of recognizing better ways of doing criminal trials when they see them.
posted by 1adam12 at 7:15 PM on January 1, 2016 [16 favorites]

I read this the other day - great article. I was discussing Making A Murderer with a friend and I think one of the reasons* it's so popular is because so many people just had/have no idea how so much of our justice system is almost just a house of cards and are really shocked about it. Due to a heavy interest in sociology in college (I took enough classes to almost earn a minor) I ended up taking a lot of criminal justice classes and have been reading about this stuff ever since. So all the apparent corruption we saw in Making A Murderer was disturbing to me, but not surprising. What is surprising is how many people are completely unaware of any of this.

*the other reason is because it's chronicling the story of white people. Of course, the justice system letting people down is nothing new, and disproportionately so when black people are involved, but it takes it happening to white people to get a lot of people to sit up and take notice.
posted by triggerfinger at 7:25 PM on January 1, 2016 [15 favorites]

Study of comparative law in American law schools has been basically eliminated.

My wife took some international law courses at Columbia while pursuing an MIA back in the (mumble). She was appalled/entertained at how incapable the law students, accustomed to precedent law, were at building cases through logic. (She's got lots to say about shortcoming of the US system, so, not much new here for BWA.)
posted by BWA at 8:01 PM on January 1, 2016 [1 favorite]

What a terrifying article. What a thing to read on the first day of a new year. Forgive me if I'm a little pessimistic.

Parts of it were, to me, things I have been reading for several years. Prosecutors Play Fair, Police Are Objective, Guilty Pleas are Conclusive, Juries Follow Instructions (the titles of the points), I was just nodding, happy that someone high up in the system is putting his words, name, and face forward towards these problems.

Other parts rocked me. I knew that fingerprints weren't infallible, I remember watching clips about the Madrid bombing case but the other numbers attached to forensics..."Spectrographic voice identification error rates are as high as 63%, depending on the type of voice sample tested. Handwriting error rates average around 40% and sometimes approach 100%. False-positive error rates for bite marks run as high as 64%. Those for microscopic hair comparisons are about 12%" That....really shocked me.

There's something really messed up with how media portrays cops. CSI, NCIS, L&O, SVU, even something like Brooklyn Nine Nine gives people a completely skewed idea of how police officers act and behave and how they treat people. CSI made it seem so simple, so infallible. "The evidence never lies." I still remember that being said almost every episode. The judge himself even talks about how he, and he presumes many others, were influenced by Twelve Angry Men. How many people's perceptions of police is entirely based around the media they consume? Even something like Making a Murderer chooses to omit things for entertainment. It shows a broken system, yes, but then it also knows exactly what it wants to be: slick entertainment. I'm watching it with a friend and we spent a while talking about these documentaries about how broken our justice systems are will become a seasonal thing. There are so many stories to tell.
posted by Neronomius at 8:10 PM on January 1, 2016 [5 favorites]

'Nuff said.
You can almost hear the mic hit the floor.
posted by erniepan at 8:38 PM on January 1, 2016 [1 favorite]

I read the original article months ago. It's a good read. I learned a lot. But it's also kind of hopeless feeling. :(
posted by R343L at 9:42 PM on January 1, 2016

12 reasons to worry about our criminal justice system

There are more than just 12 reasons to worry....

1. Dontre Hamilton
2. Eric Garner
3. John Crawford III
4. Michael Brown Jr.
5. Ezell Ford
6. Dante Parker
7. Tanisha Anderson
8. Akai Gurley
9. Tamir Rice
10. Rumain Brisbon
11. Jerame Reid
12. Tony Robinson
13. Phillip White
14. Eric Harris
15. Walter Scott
16. Freddie Gray

posted by Fizz at 7:09 AM on January 2, 2016 [6 favorites]

This is an important and potentially influential article by virtue of who is saying it.

But I can't help but be a little annoyed at libertarian legal darlings who only really become concerned with injustice when someone like Kozinski points it out. These types of guys otherwise seem to believe that the law is about proving how very smart you are - or at best, a mentally stimulating logic puzzle. Very few of them have stepped inside a courtroom, much less represented the interests of someone who has a lot to lose at the hands of the system.

also there is zero direct discussion of race in the article ...
posted by yarly at 7:17 AM on January 2, 2016 [4 favorites]

also there is zero direct discussion of race in the article...

And yet it has such a massive impact on how people of colour are treated by the criminal justice system.
posted by Fizz at 7:34 AM on January 2, 2016

This is never going to change before the collapse - may it come soon.

Most Americans believe that "the folks lined up to be prosecuted are scary bad guys" as the first poster here wrote, and therefore don't need any legal protections at all - that police are really good, honest people except for a tiny number of bad apples who somehow don't spoil any other part of the barrel - that the legal system is effective and efficient and just all the way through.

Presumption of innocence is, as the article points out, not understood at all; the idea of rehabilitating prisoners, particularly non-white prisoners, is almost universally considered bad; the idea that prisoners might have civil rights and should be treated with decency is considered an effete abomination.

And of course, the idea that criminals within the system - powerful, rich men and occasionally women who commit huge crimes - that their crimes should be treated with the same gravity as are small crimes committed by poor people - that's considered ludicrous to most Americans. On more than one occasion I've had people lecture me like I was a stupid child explaining why rich people deserved better justice because they were rich and thus contributed more to society.

And outside of the centrist bubbles of places like Metafilter, there's no evidence that this is changing - indeed, I see most people doubling down on their authoritarian fantasies.

Like so many of the mortal issues threatening the United States, this isn't a problem that's going to be fixed by electing another Bush or Clinton (if you recall, most of the roots of the incarceration state stem from a previous Clinton), let alone a Trump - but you're going to do they're anyway, and the problem will continue.

I believe the underlying root is the destruction of education and the fact that most American kids now never get any classes where they are forced to think for themselves.

I spent just one year in an American school, in 1970-1, but we had civics classes and frank discussions of issues like integration, and I was about 8 at the time - I've talked to other contemporaries of mine who spent more time in the US system and this was fairly common. You don't get this any more - it's all reams of memorization (just at the time when memorization has lost all its value!)

The fact that people aren't taught any form of ethical or moral calculus means that when they're just going to go with their "gut feelings" when confronted with difficult decisions - which will therefore nearly always going to be deeply unjust and ineffective decisions, because the incarceration state isn't just unfair, it's incredibly expensive, and doesn't deter the rich and powerful from their crimes, the crimes which really are destroying our world...
posted by lupus_yonderboy at 7:42 AM on January 2, 2016 [3 favorites]

Here's another sign the era of mass incarceration is slowly coming to an end - "The rate of U.S. adults under some form of criminal justice supervision declined for the seventh straight year, dropping to a level not seen since 1996."
posted by kliuless at 10:49 AM on January 2, 2016 [1 favorite]

Using the term "scary bad guys" points out a thing I worry about.

A criminal court is supposed to consider whether or not the defendant committed the crime of which they are accused, not whether or not they are a good person.

In less formal situations, a lot of people see judging someone's inner character as the most important part. And I can see why. Can I trust this person? is an important question. You aren't punishing them for something they did, you are trying to predict what they're likely to do and whether you need to protect yourself from them.

But it leads to people deciding so-and-so is a good/bad person so they probably didn't/did do it. Through juries and cops and judges how much does that attitude seep into the justice system? And isn't it more prone to bias when you're trying to divine the inner character of a person rather than the more concrete question of whether they did the crime?
posted by RobotHero at 4:58 PM on January 2, 2016

Sometimes character matters, though. The context around an alleged crime is important; a person killing a person is bad in general, and when it's an abused spouse trying to escape, it's very different. Character informs that context, I think, and so when it comes to the question you raised about trust, I think. "Can we trust this person to understand what they did was wrong, and is punishment therefore necessary?" is an important question to ask when it comes to administering justice.
posted by feckless fecal fear mongering at 11:20 PM on January 2, 2016

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