Where’s the Justice?

What happens in the courtroom has nothing to do with justice.

Today I’m addressing this issue posed by author Cody Kennedy. His upcoming novel, Thárros, deals with exactly this issue.

But how can I argue this? Criminal justice has justice right there in its title, right? Is it false advertising? Yeah, sort of. And be forewarned: this post contains my opinions. They’re well-informed opinions, though, with years of experience behind them, so I stand by them.

Here’s what you need to keep in mind:

  • Criminal justice has little or nothing to do with victims. It wasn’t designed to. We already have a civil justice system that allows people to demand monetary compensation for their losses via lawsuits. Nothing the CJ system does to convicted offenders—fines, probation, incarceration, death penalty—does victims any good, apart from perhaps giving them some sense of safety, satisfaction, or closure. (An exception to this is restitution, in which the offender pays the defendant directly to compensate for damage from the crime.) Victims play only a minor part in the CJ system, aside from their roles as complainants and witnesses and perhaps the submission of a victim impact statement before the defendant is sentenced. Those who study the CJ system say it acts on behalf of society as a whole, not on behalf of victims. In fact, sometimes victims may even be harmed by the process.
  • The primary principle behind the CJ system is due process, not justice. What does that mean? It means that the system aims for fairness. It exercises great care to make sure that rather complex procedures are followed. But even when the system is perfectly fair—which it isn’t always—it won’t necessarily be just. Some people we know to be guilty are going to go free because a cop screwed up. Some people we’re pretty sure are innocent are going to stay in prison because the proper channels were all followed at trial and during appeals but the exculpatory evidence (evidence that gets them off the hook) didn’t show up until it’s too late. Neither of these situations is just, but they are consistent with due process.
  • Prosecutors (and others) are practical. Currently, only 3 out of 1000 serious criminal acts result in a trial. I’ve blogged about this already. For now, what you should know is that prosecutors won’t charge someone with a crime unless they’re pretty sure they can get a conviction. There are several reasons for this, including the fact that district attorneys are elected, and they need good conviction rates to get reelected. In addition, there is huge pressure all around to plea bargain—to offer a defendant lesser charges if he pleads guilty. Without plea bargaining, our courts would be hopelessly backlogged. But this expediency means that even when it’s pretty clear that someone has committed a crime, there’s a good chance she won’t be charged with it at all, or that she’ll end up with a conviction for something much less serious.
  • The courtroom itself is a cipher. What if we have one of those rare cases that makes it to court? Human beings are going to make decisions about which evidence to present—decisions that are strategic but may not seem just. And a human being is going to make a decision about guilt. In fact, in the US that decision will probably be made by a group of a dozen human beings. One of my areas of academic research is jury decision making, so I can assure you that juries are strange beasts. They get influenced by all sorts of things, including the attributes of the defendant and witnesses and attorneys, as well as the specific ways the evidence was presented and arguments were made. And that’s not really justice either.

Now, having written all that, I need to add two things. Our CJ system is highly fallible. It makes mistakes. It’s used discriminatorily. It’s unfair. But. I also think it beats many of the alternatives and is far superior to the justice systems in much of the world.

What does this mean to you as an author? Remember that the CJ system is, ultimately, made of people. Like a good character, your CJ system should be imperfect. And as you write (or read) keep in mind the realities of the CJ system, and don’t try to make it do things it just doesn’t do.