The American criminal justice system is broken. This claim, in one form or another, commands wide support among those who study criminal justice. But the view that the system is in urgent need of reform marks the limit of scholarly consensus. As soon as one moves to specifics – to analysis of the particular ways in which the system is defective or problematic; to interpretation of why these defects or problems have arisen; and perhaps above all, to elaboration of possible solutions and institutional reforms – one encounters not only the sort of variety that is to be expected in any vibrant field of scholarship, but also fundamental differences of diagnosis and prescription.
Some scholars see the “collapse” of criminal justice in terms of macro forces beyond the criminal justice system itself. Among these scholars, some point to the politically opportunistic “federalization” of criminal policy and counsel a renewed focus on local democratic control. Other scholars diagnose an excess rather than a deficit of democracy, pointing to the ways in which the diffusion of elected positions in not only the design but also the delivery of criminal justice policy has encouraged pragmatic, unprincipled policymaking and executive decisionmaking in the pursuit of electoral gain. These scholars accordingly counsel the construction of policymaking structures that operate at one remove from the pressures of electoral politics, though subject to nonelectoral forms of accountability, in an effort to escape (loosely speaking) a “prisoners’s dilemma” in which politicians of all complexions become locked into a competition to be “tougher” on law and order. Some see criminal justice policies as secondary effects of deeper political, social, and economic trends such as the collapse of Fordism in the 1970s and rising crime and social fragmentation. These scholars believe these trends contribute to a “culture of control” that engenders harsher criminal policy and a tendency to “govern through crime,” or to a “neoliberal politics” in which the punitive wing of the state expands as its welfare wing contracts. And yet other scholars see the fundamental problems of the criminal justice system primarily in terms of the broader dynamics of race and indeed racism in American history, arguing that the criminal justice system in general, and the prison system in particular, have taken up where slavery and Jim Crow left off in ensuring the perpetual exclusion of a large portion of the African American populace from full citizenship. Many of the macro-accounts of criminal justice blend aspects of these explanatory strategies.
A second form of analysis sees the problem instead in terms of distinctively criminal justice variables. One important focus here has been scholarly analysis of the unintended consequences of the move toward structured sentencing. This policy was broadly benign in intent, but its aspiration to deliver more equal justice has in some jurisdictions, notably the federal system, led to an upswing in penal severity as a result of unduly rigid guidelines, mandatory sentences, and various perverse effects of the curtailment of sentencing discretion (notably a marked increase in substantially uncontrolled prosecutorial power). These concerns are most evident in extreme forms of mandatory sentencing such as that enacted by the California “Three Strikes” legislation. Another important focus in the criminal justice—specific literature has been the impact of the “War on Drugs,” with its severe penalties, distinctively aggressive policing tactics, and racially skewed impact. Other key preoccupations of this literature include the decline in the more effective and consensus-based forms of proactive policing, particularly in inner-city areas, and the implications of an increasingly powerful private lobby around the “prison industrial complex” with interests in the delivery of penal hardware and correctional services, and hence in the expansion of punishment. These are simply a few of the most striking themes and fault lines that structure the varied positions taken up in an extensive, fascinating, and dizzyingly diverse literature.
Amid this literature, and belonging to the second, criminal justice—focused group of scholars, Professor Stephanos Bibas has come up with a striking new diagnosis. In a nutshell, his argument is that the real problem with the American criminal justice system is that it has become a “machine” – a dehumanized bureaucracy in which the interests, not to mention the feelings, of victims and defendants alike are ignored, and in which the logic and operation of the system are dictated by the interests of the lawyers and other officials who manage it. Drawing on not only his academic research but also his experience as a high-level practitioner, Bibas argues that criminal justice has become “a zero-sum contest rather than a multi-faceted morality play,” with baleful consequences for all concerned (p. 112). Criminal defendants are pressured into plea bargains that all too often fail to reflect their actual culpability, and that routinely deny them the opportunity to take responsibility and express genuine remorse (pp. 49—50). Victims of crime, rarely consulted and often not even informed, feel alienated from the criminal process even in cases where “their” offenders are apprehended and charged (pp. 26—27). The general public responds to the apparent responsibility deficit and to the ever-widening gap that separates the popular, moralized understanding of criminal justice from the practical reality of a demoralized (in both senses) bureaucratic system with ever greater demands for criminalization and punishment. Increased criminalization and punishment impose huge social costs and expand the system, thus increasing the pressure to rely on “machine-style” plea bargaining, creating in turn yet more popular demands for more effective – that is, harsher – justice. The prescription follows from the diagnosis. It is to break the vicious cycle by rehumanizing the machine, “[r]eturning [p]ower to the [p]ublic in a [l]awyer-[d]riven [s]ystem” (p. 129) by giving a voice to juries in the sentencing process (p. 157), and redesigning the system in order to incorporate the best aspects of community justice, restorative justice, and therapeutic jurisprudence (pp. 129—65).
In this Review, I first set out in some detail Bibas’s main claims, relating them to the broad themes in the existing literature on the problems of the American criminal justice system. I then evaluate Bibas’s diagnosis of the system’s ills and his prescription for its cure. Is his diagnosis of the patient as suffering from the disorder of “bipolarity,” indeed of a virtually psychopathic unfeelingness toward its main human players, accurate? Equally importantly, to the extent that the diagnoses of bipolarity and psychopathy are indeed accurate, are these the patient’s most significant pathologies? And finally, is the cure that Bibas prescribes a promising treatment for the system’s ills, or rather a recipe for further and perhaps worse diseases?