How bad is plea bargaining? When we pressure people and say, “If you go to trial, maybe you’ll have a 10-year sentence or a 20-year sentence, but we can give you half that or less than that if you take this plea,” the pressures are such that sometimes even people who might not be guilty can be tempted sometimes to take the plea, especially if they’re mentally ill or juveniles or don’t speak English well. There are some especially vulnerable populations we ought to be worrying more about.
I’ve seen how bad the public defender system, for the most part, is. Right. I’m not accusing public defenders of ill will, but with 200, maybe 400 cases at a time, maybe the first time you meet your client is in a holding cell at the courthouse. You say, “Hi, I’m your lawyer, the prosecution has made this offer, I recommend that you take it.” That’s called “meet them and plead them lawyering.” It’s very common. Imagine what your relationship with your lawyer will be if the first time you meet him, he’s trying to pressure you to plead guilty.
And lots of lawyers—like lots of social workers with huge caseloads, and doctors who can spend only a few minutes with patients—are frustrated. We measure quantity, so we rush through cases—including cases where the accused may have been innocent.
Is it more humane to put a person in stocks for several hours or to lock up a person in prison for several years? In Philadelphia, I live a few blocks from the Eastern State Penitentiary that opened around 1830. The idea, very idealistic, was if you lock someone in solitude with a Bible, his conscience will convict him. You pulled him out of his bad environment, he’ll turn his life around. The reality is out of sight, out of mind. We don’t see the suffering of the people in prison, but we’ve torn them away from their families, jobs, homes, communities. We’ve deprived people of husbands and fathers and created a semi-permanent underclass of ex-cons. They’ve spent time in prison networking with other criminals. It may look like it’s humane because we don’t see the suffering that’s in prison, but it devastates people’s lives in lots of ways. Prison life is TV punctuated by stabbings and rapes.
‘The plea bargains are hurried conversations in a hallway or a conference call. … That bypasses the central morality play understanding of the trial as vindicating, as catharsis, as healing.’
What other type of biting punishment could there be besides long prison sentences? Having to face someone in front of your community and apologize can be embarrassing: In a very low-level crime, that itself can be enough. Shame sometimes can be constructive. We need to experiment with other punishments used in the Colonial era: not flogging or stocks or indiscriminate use of the death penalty, but we ought to think more about what feeds the needs of the victims.
Let’s say someone has stolen several thousand dollars’ worth of electronic equipment from a victim’s home. What would be an appropriate punishment? We have become enamored with rules, but we ought to think about trusting a sentencing jury to make more individualized determinations. The jury gets to hear the story of how the crime happened, how has this person suffered, how dangerous is this defendant, how much do we worry about this person. With some defendants, we’re scared enough that we need to send them away for a while. Others we need to send away but also make sure they get drug or alcohol treatment or take their mental illness medications. As we’re doing that, can that person make some restitution by working, apologizing, doing something at least partly productive?
I’ve interviewed prison inmates who say they’d prefer capital punishment to spending the next 40 years there. Many of the early prison reformers emphasized teaching good habits and offering productive work—but a combination of small business and labor interests in the late 19th century and early 20th century squeezed out prison labor because it undercut free labor. Prisoners might make license plates or work in the cafeteria, but very few have the opportunity to earn any money, learn any marketable skills, or do anything they’ll be able to do when they get back on the outside.
We’re hearing a lot now about “restorative justice.” That’s the idea that we bring offenders and victims together in a conference: People tell their stories, the offenders apologize, and that’s that. Restorative justice makes sense, but as a substitute for unequivocal condemnation and some kind of biting punishment, it goes off the rails.
What about the victims’ rights movement? Victims do deserve to be heard, but sometimes that movement demands the maximum possible sentences. Victims are often satisfied with less than the maximum, especially if they hear, “This person isn’t stalking me anymore, I was just an accidental target of opportunity.” Victims want some punishment, an apology, and maybe some restitution to pay their medical bills. Restorative justice is often on the left, victims’ rights on the right: Maybe we can fit together some of these insights in a way that’s nonideological and cross-partisan.
What’s the top priority in trying to transform the justice system? The system is deaf. Opening up the process, and letting the victims and the defendants and the juries see more of it, will force the lawyers to listen to the nonlawyers more. As a Christian I know that all these parties are made in the image and likeness of God. That’s what’s motivates me. I can treat even the most depraved, heinous murderer as having that image and likeness of God inside him. Some people will never turn their lives around, but others will respond.