Last Friday, The Harvard Law Review published a series of trenchant essays on criminal justice, the most personal and provocative of which was a piece written by Alec Karakatsanis titled “Policing, Mass Imprisonment, and the Failure of American Lawyers.” Attorneys have failed to protect their clients and the citizenry at large on two basic levels, Karakatsanis wrote:
First, there has been an intellectual failure of the profession to scrutinize the evidentiary and logical foundations of modern policing and mass incarceration. Second, the profession has failed in everyday practice to ensure that the contemporary criminal legal system functions consistently with our rights and values.
That same day, also at Harvard Law School, U.S. District Judge Jed Rakoff, who has become the archangel of candor on criminal justice reform, gave a memorable speech in which he candidly blasted lawyers for abdicating their responsibility “to help create a safe, fair, and just society even when legal issues, in the narrow sense, are not directly at stake.” But Judge Rakoff to his credit also said this:
But I should mention at the outset that the relative failure of organized bar associations and lawyers in general to speak out on this issue pales in comparison to the silence of the judges, who, I submit, have a special duty to be heard on this issue. Indeed, the commentary to Canon Four of the Code of Conduct for United States judges expressly encourages federal judges to speak out on issues relating to the administration of justice in general and criminal justice in particular. Yet, for too long, too many judges (including me) have been too quiet about an evil of which we are ourselves a part: the mass incarceration of people in the United States today.
Both the lawyer and the judge deserve credit for saying publicly what others find so hard to say (publicly or privately) when it comes to apportioning blame for the sorry state of criminal justice today. But until the disciplinary structures of these professions change dramatically — until there is meaningful accountability and transparency, until there are consequences for the bad actors — I fear we are unlikely to see the sort of institutional change we need to actually help the people who need it—the millions swallowed up every day in a legal bureaucracy that far too often is arbitrary and capricious, unjust and cruel.
Never mind the smart, competent judges and lawyers who see wrong and do not do more to right it — the ones to whom the judge’s speech and the law review essay are directed. We could begin to reform the system by going after the lower-hanging fruit we see every day in our nation’s courtrooms: We all know that there are terrible judges presiding over criminal cases in every jurisdiction in America — judges who are biased or lazy or simply unable on a basic intellectual level to meet the challenges of their job. We know, too, that there are incompetent or malevolent lawyers whose representation of their clients, or whose work on behalf of “the people,” makes a bad situation worse. Until we figure out how to better identify, punish, and remove these bad actors from our justice systems we will be stuck in a cycle of feckless lament.
The problem is not just limited to judges and lawyers. Every profession protects its own—including every profession that comprises the stable of actors who animate criminal justice. Look at the police, for example. We all know that there are more good cops on the beat than there are bad ones. And we know that if the good cops rose up and said “enough” the bad cops would be held accountable — or fired — for the misconduct we see every day on our streets. But that doesn’t happen. Instead, far too often, we get police union officials justifying the misconduct or, worse, blaming the victims of it.
Doctors protect doctors. Accountants protect accountants. Baseball players protect other baseball players. Industries spend an inordinate amount of time, money, and energy devising ways to explain why they are willing and able to regulate themselves but they don’t and they won’t. And in realm of criminal justice, as in every other realm, it all starts at the top. By many different measures, the United States Supreme Court is the least accountable court in the nation and the rulings it has issued—on ineffective assistance of counsel, prosecutorial misconduct, and police immunity, for example — have enabled and perpetuated the practices and policies that make our justice systems so unjust for so many.
I am a big fan of Judge Rakoff, both on the merits of his arguments and on the brave manner in which he makes them. And Karakatsanis clearly has a bright future in the law. But the worthy complaints they lodge require a whole new mindset, a new way of doing business, that no blue ribbon panel or vague ethical standard is going to deliver. The truth is that we all are to blame for mass incarceration, and racial disparities in our justice systems, and wrongful convictions, and police misconduct. And it is going to take a fundamental commitment within the core of each of us to begin to fix the enormous problems we’ve created for ourselves.
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.