When Josh Blackman noted the article in Vanderbilt Law Review, he felt it necessary to say that Judge J. Harvie Wilkinson III of the Fourth Circuit Court of Appeals wasn’t trolling. Given his background and position, I daresay Josh is right. Judge Wilkinson believes what he writes when he defends the criminal justice system:
As a judge with faith in that system, I am dismayed by the relentless insistence that we have it all wrong. Of course the system, like all human institutions, has its share of flaws. But the attacks have overshadowed what is good about the system and crowded out more measured calls for reform. The critics claim that major aspects of American criminal justice work to the detriment of defendants, when actually the reverse is often true. It is time for a more balanced view of our criminal process, which in fact gets a lot of things right.
My own reaction to the critics is one of gratitude for their contributions but dismay that they have allowed the pursuit of perfection in criminal justice to become the enemy of the good. Much about American criminal justice is indeed good. The system provides considerable protections for the accused and sets proper limits on the brutality and deceit that human beings can inflict upon each other.
The meme that perfection is the enemy of the good has its place. It works well for toasters and roofing tiles that look like they’re slate, but really not. But not only does its applicability to the criminal justice system not fit well, but it takes for granted that the system is good as it now stands. That’s not how Judge Wilkinson sees it.
Initially, one has to wonder why Judge Wilkinson decided to defend the system in the law review article. Was he not aware that no one outside of the Academy reads law review articles? Had it not been for Josh, there isn’t a chance in hell I would have seen it. Perhaps the judge didn’t want someone like me seeing it? Am I of the ilk of those who condemn the system, and thus my “attacks have overshadowed what is good about the system”?
What is “good” about the system? We have numerous constitutional rights, honored occasionally in the breach when not overwhelmed by judicially created exceptions designed to explain the careful balance between our adoration of rights, and why they don’t apply in “this case.” We have a system replete with hair-splitting nuance at the appellate level, while trial level judges wave an arm while muttering the word “denied” to dismiss efforts to put those appellate opinions to what little use is possible.
Yes, our system is far better than some others. It beats the crap out of the Spanish Inquisition. Trial by combat was flawed. At least our decisions start out with a paragraph explaining our glorious rights in black letters, before spending the next 38 pages explaining why they won’t happen here, why the exceptions to those rights prevail.
And to jurists like Judge Wilkinson, who managed to have fabulous careers that never involved holding the hand of a living human being who depended on him, this must all make a lot of sense. After all, there’s precedent, and we must honor precedent for the sake of stability. Anything else would be activist, and Judge Wilkinson would never support such activism. It would be intellectually unsound.
It’s as if Judge Wilkinson read the slogans that grace courthouse lintels and believed each one. Consider his take on the magnificence of the constitutional right to a jury of one’s peers:
Some commentators accept in the abstract the capacity of the jury to temper the harshness of the criminal law but nevertheless believe the jury’s role to be largely inconsequential in an age dominated by plea bargaining. But this conclusion is too hasty. For those who despair over the rise of plea bargaining, consider what would happen if defendants did not possess a right to demand a jury trial. The accused would lack the specter of a jury’s scrutiny to ward off an unjust prosecution. Like most deterrents, a panel of one’s peers need not be immediately present to do its job.
While we harp on the negative, the impact of ever-harsher sentences that give the prosecution a hammer with which to beat defendants into submission and acceptance of plea bargains, Judge Wilkinson sees the process as one where the right to a jury gives the defendant a hammer of his own. Ha! Take that prosecution! Do better or it’s off to trial, where a jury of the defendant’s peers will temper your harshness. Because that’s how it looks from the top of Judge Wilkinson’s bench.
Judge Wilkinson blames reformers for diminishing the effectiveness of juries in maintaining our delicately balanced system by our demanding they be denied “highly probative evidence” as a remedy to collateral constitutional violations.
By contrast, judge-made exclusionary rules—particularly in the form of implied constitutional remedies that do not have a clear basis in that document’s text—are doubly antidemocratic: they set courts above legislatures as to rules of procedure by mandating the application of certain forms of redress, and they diminish the role of the jury. Although I do not advocate their abolition—they can be appropriate in guarding against plainly unacceptable forms of government abuse—they must be used cautiously and sparingly. Fortunately, the Supreme Court has properly limited the scope of such rules in the past few decades. These decisions have been broadly criticized, but in fact they should be celebrated as striking a sensible balance between procedural protections for defendants and the accurate determination of innocence and guilt.
And indeed, these rules are “used cautiously and sparingly.” One might go so far as to say they are used too sparingly, given that these rules should be used when the conduct calls for their use, and neither more nor less. But Judge Wilkinson, in his slavish appreciation of text, precedent and moderation, finds his personal groove in calling the balance between “procedural protections for defendants and the accurate determination of innocence and guilt” sensible. Sensible?
The Sixth Amendment dictates confrontation rather than exclusion as the appropriate approach to eyewitness testimony. The Confrontation Clause augments the jury’s role, and it is hardly up to judges to diminish it.
He believes. A cynical view would see an assertion like this as a sham, rejecting the science of eyewitness testimony, the real-life impact of the courtroom identification that is nearly impossible to undo by cross-examination because it has nothing to do with extraneous factors like My Cousin Vinny’s dirty windows. But Judge Wilkinson never had the opportunity to sit next to a wrongfully identified defendant. He believes. It’s sensible.
That word, sensible, pretty much captures what Judge Wilkinson sees as good about the system. We say all the right words and then make sure the guilty get convicted and stay that way. That a few innocents get lost in the process is unfortunate. That a few constitutional rights are treated shabbily is imperfect.
But in the end, a judge of the Fourth Circuit feels pretty good about how the system is working, because he believes, in the end, the system works pretty darn well. And if you believe that law enforcement and the prosecution are really doing a good job of only arresting and prosecuting the guilty, of honoring constitutional rights, or exercising discretion on a level playing field, then the system must look pretty good.
From down here in the trenches, it doesn’t look so good. Too bad judges like Harvie Wilkinson have never seen the system from down here. And yet, the system relies on his sensibilities to work properly. Yes, the system has all the rights and procedures it needs to make it work well, at least in theory, but there is one weak link in the chain that could compensate for the other gaps and failures that arise: judges. And when judges believe as Judge Wilkinson does, that it’s working fine without his having to do much of anything beyond apologizing for its occasional hiccups, the system fails to work.
Don’t blame the critics, Judge. Blame yourself. You’re not on the bench to take up space, make excuses or write law review articles. Forget perfection; if you think we’ve achieved good, then we just don’t share the same sensibilities. Given our respective backgrounds, that’s not surprising.
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When one – stews in his own juices, sautés in his own secretions, and/or breathes his own fumes – long enough, I contend his senses will generally become more unreliable over time, leading to questionable observations as to what is “good” and what is “not so good”, if you catch my drift . . .
Your drift is hard to miss. Oh, you meant in this comment. Well, yes, there too.
All you people complaining about how, because the engine doesn’t work, we need to get a new car fail to understand just how “good” our current ride is:
– it has almost all of the constituent parts, usually in the right place;
– it was built in America so we should be proud of it;
– it’s not a gas guzzler; and
– I have never had it roll over and explode like a Pinto while I have been driving it; ergo, it is clearly safe to drive.
Since I assume without evidence that 99% of our trips will be downhill both ways, the current vehicle is more than adequate for all of our required driving and obtaining a functional engine would simply complicate the driving process. While I appreciate your criticisms, all of which I assume consist of nothing but abandoning all cars and using pennyfarthings for all of our transportation needs (I’ll be honest, I wasn’t really listening that much), the fact is that I am a mechanic who believes in our current automobile and that should be good enough for all of you. Maybe I never actually worked on a car or even lifted up a hood to have a peek inside, but finishing first in my class at the auto repair academy is a more-than-adequate substitute for actually rolling up my sleeves and getting my jumpsuit dirty.
Also, there is no reference to “brakes” in the Constitution.
Excellent.
Sir, (if I may?)
Judge Wilkinson, (In lieu of calling Bullshit and being done with you). Meet a real life sized VOTS, Thomas R. Griffith, from the state of confusion & land of the loopholes aka: Texas, where the art of practicing and participating in the “Texas TapOut” dominates the rigged wells & the judge’s chambers, where defendants are taken to sign plea bargain papers, Guilty or Not., as ADAs cross out Not Guilty and pen in nolo contendere which is documented as being conducted in OPEN court.
When the Rules of Court & Procedures are allowed to ‘not’ apply – the benched doodles on legal papers, as the defense teams (both: Fake & Real alike) can be seen celebrating (when not sleeping) loses as wins. All thanks to some ass hole that thought it’d be cool to have three ways to plead, circumventing: that pesky jury verdict thang (while still allowing them to show up and be impaneled) & the need to have qualified criminal defense representation at your side (when a Divorce & Estate specialist will do just fine pretending to file pre-trial motions), in order to keep ’em moving. You could have been a Public Hero vs a professional excusser with no moral compass to guide you through right & wrong. This is coming from a victim-of-the-system with a couple friends that just happen to be judges, so you can – can the attack crap fear mongering due them also shaking their heads at your article. Doh! Have a good day.
Just wondering if he was appointed or elected? It most-likely doesn’t matter, with some of those he’s enabled vs set straight, surely thinking he’s a good, honest, God fearing, Christian and all, that’s just doing the right thing in the name of the law.
Thanks.
All federal judges are appointed by the President and confirmed by the Senate.
Sir, as usual, thanks a million for taking time to set me straight (I know, should have stayed in school). If it’s cool with you, I’m on a roll below not due to being board out of my mind but more as a by-product of a warped experience that allowed / forced me to see the system up close & personal for what it has been allowed to become, therefore, when I see excuses vs. remedies…
After taking time to read the lengthy article in its entirety over the last two days, I’m afraid that it simply left me with more questions than answers. At the risk of giving this & that too much unwarranted attention, I think I’ll need an interpreter to explain the last two pages. IMO, it’s not the ramblings of an old coot sitting on the porcelain bench with a laptop on his knees. It’s more of a well thought out time consuming dig at the so-called pesky – “elites”, Innocence Project, any & all authors & those damn reformers found to have written anything negative about the system and / or called for implementing reforming the system he & his colleagues (in the state level) have grown to rely on for their bread & butter for decades.
It seems to me, that all it takes to create & publish a Law Review article is to have a subject, take time to locate other articles or words in a row in which to copy & paste, making sure to include them as sources for the footnote section and simply submit it. I guess that’s why it’s called a Review. How many cases got his & those that assisted him full attention while he was typing away at the bench is another story. Thanks.
*I can’t believe he failed to utilize SJ Postings as sources. Maybe a few of yours will be in his 10K page book?
*Speaking of judges, if you create a SJ get well card for JRK – Judge Kopf, I’d like to sign it. He’s proven to be one of the good guys.
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The following is just in case Judge Wilkinson drops by for a friendly chat. Everyone, please look away. For the record, yes, the criminal justice system is here for a reason (criminals) but over the years, complacent citizens caught cases of the voting-just-to-be-voting-syndrome from their parents and professors and self medicated with the Ignore button. Resulting in the spreading of the – you get what you deserve disease from coast to coast. If those charged with operating the system from the moment of arrest all the way to verdict and beyond, chose to do so with 100% transparency & accountability from the jump and continued to do so instead of shifting the responsibility over to the taxpayers to simply bribe the cherry picked wronged to go away, there would be no call for reforming a rigged system. The only ones on the court house steps claiming they have no ill feelings are the lucky few headed to the dang bank.
*IT’S RIGGED DAMN IT, NOT BROKEN (it had to capitalized). Civics 101 allows us to understand that in order to obtain the public’s trust and full backing of any system, it must be maintained and tweaked often to work out any intentionally placed bugs or ones that slipped in by accident. Please let this sink in judge. There’s no way in hell that everyone claiming to have been wronged is being truthful, you must vett claims properly (devoid of fixation on the ‘type’ of evidence that the Innocence Project(s) and Boards of Pardons & Paroles are guilty of doing) ‘prior’ to dismissing them or you risk becoming a conspirator to someone else’s crimes. To prevent the back-ended results from being covered up or coming back to bite, we must insist that the front end be fully set up to deal with any bad or rogue folks hell bent on obtaining convictions at all cost. In Texas, we are doing just that. We the firggin people are going to force the bought & paid for well dressed gang in the Lege to pass a bill aimed at recording interrogations. Sadly, the authors chose to cherry pick the so-called “serious” crimes to be recorded leaving a gaping WTF? hole. Just as sad is the fact that a unheard of but highly misinformed judge thinks it’s already in place and folks are just crying wolf. No hard feelings, just concerns. Thanks.
He may not have cited to SJ, but he did cite to Radley Balko. I guess I’m not critical enough.
Reform is an adversarial political process that often fails and when it does succeed the results are often disappointing. So I am not surprised that a federal judge would not be keen about reform. In my opinion the criminal justice system has changed because of a large set of small alterations many caused by technology and others in response to new laws and appeals court decisions and other external factors.
On can look back and compare the CJS of today with the CJS of ten or twenty years ago and see measurable differences. The problem is that type of incremental change is not predictable. I am confident that the CJS ten years in the future will differ from the CJS of today but there is about one chance in three it will be better.
To tie this post in with the comments of “gallows humor” in the Hillary post, I often wonder from my tree house perch if the Shakespearian comedic structure of out current times has simply decided to ignore
denouement.
Why even bother with the resolution of the intricately woven and complicated if the conclusion is a forgone conclusion that everyone is aware of from the start in our “modern times”?
Round and round we go pondering if there is anything left of the adversarial shell to hollow out.
Perhaps the joke is…”everything is just fine” but it ain’t no joke.