America has an incarceration problem. In most of the civilized world, incarceration rates hover around .1%, or about one person in prison for every thousand that aren’t. In the U.S., it’s just above .7%, or 7 people in prison for every thousand that aren’t. Either the U.S. contains 7 times the criminals, or we just put more people behind bars.

In a provocative New Yorker article on America’s prison problem, Adam Gopnik argued that our focus on due process leads us away from justice.

The arguments, largely lifted from a book by recently-deceased Harvard Law professor William Stuntz, The Collapse of American Criminal Justice (which I just bought), are probably familiar to anyone with an interest in criminal justice.

The trouble with the Bill of Rights, he argues, is that it emphasizes process and procedure rather than principles. The Declaration of the Rights of Man says, Be just! The Bill of Rights says, Be fair! Instead of announcing general principles—no one should be accused of something that wasn’t a crime when he did it; cruel punishments are always wrong; the goal of justice is, above all, that justice be done—it talks procedurally. You can’t search someone without a reason; you can’t accuse him without allowing him to see the evidence; and so on. This emphasis, Stuntz thinks, has led to the current mess, where accused criminals get laboriously articulated protection against procedural errors and no protection at all against outrageous and obvious violations of simple justice. You can get off if the cops looked in the wrong car with the wrong warrant when they found your joint, but you have no recourse if owning the joint gets you locked up for life. You may be spared the death penalty if you can show a problem with your appointed defender, but it is much harder if there is merely enormous accumulated evidence that you weren’t guilty in the first place and the jury got it wrong.

In other words, due process is meant to be a means to an end—justice—but due process has become the end itself. The courts are going through the motions of meting out justice without actually doing justice. I’m curious whether this strikes a chord with the prosecutors and defense lawyers out there. Do we over-emphasize process to the detriment of justice?

(photo: Shutterstock)

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