Slightly Woozier Thoughts on the Impossibility of Justice

Source: The Unz Review.

Ten perspectives on our justice system by a one-time police reporter. I find all of them compelling.

Overall, I don’t think the design of our justice system can be much improved and I suspect that outright corruption is a bigger problem than is generally appreciated. I think, too, that our public choices reflect a shifting mixture of wrong ideas about crime and criminals.

9 thoughts on “Slightly Woozier Thoughts on the Impossibility of Justice

  1. Criminal justice is on life support.

    The opinion touched on so many topics that are relevant that discussions are endless.

    One problem is the election of prosecutors and, in many cases, judges. Accountability to the people is often touted. But carrying out justice based on electable popularity is as bad as pure democracy. And with respect to prosecutors, the Rule of Law can, and does, take a back seat to the rule of votes. Prosecutorial misconduct is not unusual.

    Access to effective counsel is a joke. Those who cannot afford a $25,000 retainer upfront for a serious charge are dependent upon a ridiculously understaffed, underpaid and sometime incompetent lawyers. Toss in the bail system that has poor folks, innocent or not, languishing in jail, losing jobs, homes and families.

    Plea bargaining is the failure canary, really. The author points out why. The fact is we have reached a point that if plea agreements were to be cut back, our system would collapse.

    Recidivism is high. Gee, what a shocker. We have so few resources to assist a person who has such a little chance at reentering society already that we ensure failure. Plus prisons are run by the inmates due to severe understaffing and poor pay. For profit prisons should be outlawed. As part of the justice system they need to be a state function. Effectively “renting” prisoners for private profit is not far from the Jim Crow era de facto slavery when actual labor was rented to powerful entities. Abuse was rampant.

    Finally, the topic of vengeance came up. In my view, vengeance is a very human trait. However, the state justice system needs to be only in the justice business, not vengeance. That brings us back to elected court officials. Vengeance buys votes, justice might not.


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  2. Some countries that are the inheritors of the Napoleonic Code do not have trials by jury. Instead court cases are decided by panels of professional magistrates who combine the role of judge and jury. They are both the triers of fact and the enforcers of the legal processes. In addition to hearing the evidence, they can cross-examine to get at the truth.

    Sometimes it is hard to look at something that we hold dear – like trial by a jury of our peers – and accept that it is irredeemably flawed. That has always been true of the jury system where emotion and prejudice have always been major factors but its inherent shortcomings are now aggravated by such people as jury selection advisers who can determine the outcome before the first piece of evidence drops.

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    1. I can’t recall the exact case. It may have been either ATT, ITT or IBM. Regardless, it was a long, complex, legally abstruse civil case that lasted months and months.

      It was a jury trial. For the life of me, I cannot fathom how to keep 12 laymen with probably no or little knowledge of corporate law attentive for that long. I am not saying it is impossible, but really, how is justice served other than by the law of total boredom and inattention.

      It is similar in many malpractice cases in which emotion overrides medical fact.

      We need to rethink a few “truisms” about 12 men/women true and strong.


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    2. I’ve gotten to the perhaps trite perspective that it “looked good on paper” but did not sufficiently take into account the limitations of the human condition. The framers thought it would allow educated landowners to consider a legal situation without prejudice.

      Not in the cards in today’s world.

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  3. I am always fascinated by the impulse to change evolved systems, especially institutions. The impulse seems reckless to me because evolution represents an investment of sorts that casual or merely theoretical considerations should not throw away.

    So it is with the election of justice system officials, or with using juries to decide legal cases. Both are vulnerable to both casual and theoretical criticism, but both exist in their current forms today because those same criticisms have been made before, sometimes accepted to some extent and sometimes rejected to some extent.

    I am invoking the age-old problem of perfection. Our justice system does a passable job of delivering rule-of-law as opposed to rule-of-man decisions. It is neither casually nor theoretically obvious that state appointment of justice officials or a body of professional magistrates would do better on that particular test. Indeed, as a practical matter, both would be susceptible to the same causes of imperfection.


  4. “Our justice system does a passable job of delivering rule-of-law as opposed to rule-of-man decisions”

    The well-documented monumental racial bias in our justice system makes that claim questionable at best. And leaving that aside, the well-documented difference in outcomes between rich and poor in our courts is another clear indicator that there is a lot of room for improvement.

    I will not claim that a magistrate system for adjudicating court cases would be immune to any of these problems but it is hard to imagine it being any worse in a country that respects the rule of law.

    Liked by 2 people

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