At Volokh Conspiracy, University of Pennsylvania lawprof  Stephanos Bibas has been guest-blogging about his new book, The Machinery of Criminal Justice.  In his first post, it was interesting enough in its discussion of colonial criminal justice, which Bibas describes as:

How America moved from a populist system of public jury trials and punishments to a hidden plea bargaining assembly line run by lawyers.

According to Bibas, it was a quick and dirty system of crime victim against defendant, each telling their story to the lay judge in front of their peers, who knew them, their families and their reputations.  His descriptions foreshadows his underlying purpose:

Before prosecutors took over, victims literally had their day in court; and before defense counsel took over, defendants could not remain mute and simultaneously challenge the prosecution’s case. Criminal trials publicly aired each side’s story, both in deciding factual guilt and in weighing the punishment deserved. It was a matter of common sense, not legal technicality.

In his next post, Bibas’ simplistic grasp of the system reveals itself.  Lawyers become “insiders” to the exclusion of the people, who represent both the victims of crime and the public precluded from participating in the system, and thus maintaining confidence in its integrity.

From the point of view of these insiders, plea bargaining made perfect sense. Lawyers who have seen a lot of trials can predict with some accuracy whether a jury will convict and what sentence a judge will likely impose.

In exchange for offering a charge or sentencing discount, prosecutors free up time and resources to pursue more cases. Defense lawyers cap their clients’ sentence exposure, receive discounts, and get cases over with quickly. And trial judges clear their dockets and avoid the possibility of embarrassing reversals on appeal. Just as private bargains make both sides better off, because each side gets something it values more, so plea bargaining makes all the participants feel better off.

There are two fundamental flaws in Bibas’ glib assertion that plea bargaining makes everybody happy. First, he completely ignores the possibility that defendants aren’t guilty, or at least not as guilty as the prosecution alleges, as if pleas of convenience didn’t exist.  Second, he assumes that the incentives are entirely self-serving for the insiders, as if the whole bunch of players want nothing more than to keep the wheels spinning and be home in time for cocktails.

The silliness is exacerbated when Bibas takes up arms for the victims:

But that perspective leaves out the public, the laymen to whom criminal justice is not a private bargain but a public morality play. From the public’s point of view, plea bargaining is opaque, it cheapens justice by commodifying it, and it is often dishonest (as when, for example, a charge bargain reduces attempted murder or rape to aggravated assault). Victims may feel sold out and excluded, and defendants may feel they have gotten away with something.

Bet you didn’t know that our system was a big shame to allow the defendants to get away with something.  That the victim may feel left out of the system isn’t terribly controversial, but then, it assumes that the victim is entitled to a role in the “public morality play.”

The third post argues that insiders (meaning lawyers, whether defense or prosecution) have subverted democratic “accountability and responsiveness in order to process cases efficiently.”  He pines for the old ways:

Back when jury trials were common, citizens could oversee prosecutors and intervene carefully at the retail level as jurors. And when counties were smaller and criminal justice was more local, they had a better sense of local crime problems and priorities and so were better able to keep the police in check, neither too tough nor too aloof.

Whether this reflects a concern that criminal prosecution has grown unduly harsh or he’s just blunting potential criticism that the morality play almost invariably serves as a one-way street, isn’t clear. There’s a hint of jury nullification in there, with a huge dose of local vengeance.

In the fourth contribution, Bibas finally gets to his point.

Why should the right to punish belong exclusively to the state? Disputes aren’t simply impersonal red flags that alert the government to dangerous threats. They wrong both the state and the victims. Crime has a human face, and that face deserves standing and a say in the matter. The victim or his representative seems naturally to deserve at least a partial right to pay back the wrongdoer.

Whenever an argument resorts to “naturally deserve,” it becomes apparent that reason has been abandoned in favor of melodrama.  The notion that criminal laws exist for the purpose of creating an ordered society is ignored in favor vindicating the personal feelings of victims.  Bibas still tries to couch his point in neutral terms:

The law could surrender its monopoly on criminal justice by once again making more room for the parties’ interests and voices. That doesn’t mean transferring the monopoly to victims; prosecutors need to keep a leading role to ensure accuracy, equality, and fairness. But victims and defendants deserve greater speaking roles, both in court and in mediation. Judges and juries must filter the partisans’ voices, empathizing yet reflecting and keeping critical distance, to keep retribution from collapsing into vengeance.

Relying on the merciful victim (because, you know, that could happen), Bibas double-teams the defendant, so that the victim, merciful or not, get the speaking role they “deserve.”

We need to take seriously the metaphor of a debt wrongdoers owe both to society and to victims. As the victim suffered the direct loss and holds a share of the wrongdoer’s debt, he may either insist on payment or forgive his share.

Notably, the metaphor has always been a debt to society, not the victim. Bibas slips the victim in through the backdoor, as if he was always there, and us legal insiders pushed the victim out of the way when he wasn’t looking.  Except that was never the metaphor, nor the justification for criminal law at all.  Indeed, one of the fundamental rationales for the existence of crime and punishment, as opposed to civil restitution designed to make whole a victim, is precisely that the offense is to the sovereign’s rules and not any individual’s personal sense of justice.  Crimes aren’t defined by personal morality, but by clearly defined rules of behavior meant to guide all member of society in their conduct.

Curiously, Bibas’ book comes on the heels of the  New York Times op-ed by Stanford lawprof Michelle Alexander, naively calling for criminal defense lawyers to shut down the system by refusing to plea bargain.  Didn’t Bibas say defendants loved plea bargains, as it lets them get away with something? While they may approach the problem from different sides, it smacks of the academic flavor of the month to rid the system of plea bargaining.

It’s understandable that scholars strive for doctrinal purity, but that doesn’t explain the need to manufacture a world that never existed, or dismiss fundamental justifications for the system by throwing around their normative views of morality.  Trench lawyers stare reality in the face daily, and it’s hardly the sanitized view that academics see from their Ivory Tower.

The good news is that Stephanos Bibas’ description of his book at Volokh didn’t spell the death of any trees. The bad news is that the same can’t be said of publication of his book. Later today, his final guest post will reveal his solutions to our misbegotten system. I’ve chosen to write about it in advance, in anticipation of his hopping on the victims rights bandwagon, lest I be accused of my view being colored by my loathing of inanity.  If he’s got something more valuable to offer, rather than old wine in a new bottle, it’s worth another post.

Update:  Bibas’ final installment is in, and I nailed it.  Worth noting are such gems as:

Lawyers’ bottom-line, cost-benefit approach has brought many undoubted benefits, including efficient case processing and thus crime control.

I know that the bottom-line, cost-benefit approach is foremost in my thinking. And there’s:

The machinery’s relentless pursuit of mechanistic efficiency has slighted the downsides: It disempowers victims, defendants, and the public. It cheapens justice into a marketable commodity, a fungible widget to be mass-produced. It eschews the rhetoric of moral judgment in favor of legalese and mathematical gobbledygook.

Never before has eschewing the rhetoric of moral judgment been treated so kindly. I would have thought it in favor of sound evidence and rational thought, but then I’m no scholar.