Gerry Spence provides a useful service in pointing out some of the deficiencies in our justice system. Some of his points, however, are more persuasive than others. For example, I found his critique of the criminal process somewhat exaggerated. He bemoans the fact that few criminal defendants seek jury trials. But in most criminal cases, a jury trial would serve no legitimate purpose. Most defendants plead guilty because they are guilty and because a guilty plea is in their best interest. The fact that the process encourages guilty pleas through the promise of shorter sentences and, more disturbingly, that prosecutors sometimes charge offenses that carry mandatory minimum sentences in order to obtain pleas to lesser charges does not mean that innocent defendants regularly plead guilty. On the contrary, this rarely happens. And that’s a good thing. We certainly don’t want a system that frequently charges innocent people with crimes.
Nor are the public defenders who provide counsel to indigent defendants as ill-equipped to supply quality representation as Spence suggests. While public defenders in some states are overworked and underpaid, they are generally dedicated and competent lawyers. And some public defenders—those in the federal system as well as defenders in some states—are not only very competent; they also carry appropriate caseloads and are reasonably compensated. The notion that indigent defendants are, uniformly, poorly represented ought not to be endorsed by someone close enough to the system to know better.
Spence’s complaint about law schools not being able to teach students about trial practice also seems off the mark. Law schools today abound in clinical programs, including many taught by adjunct faculty with lots of trial experience who teach students how to litigate, often while handling real cases. As far as I can tell, law students who make the effort can learn just about any legal skill that they want to.
Spence clearly recognizes that some of the flaws in the justice system reflect larger issues such as excessive corporate power and inequality of wealth. But I would have liked to hear his ideas on what we might do to combat the political power of corporations and the impact of such power on the justice system. His lament about the harmful effects of these phenomena is curiously passive, as if he believes that nothing can be done about the problem. This is particularly odd coming from a famous courtroom battler.
It would also be worth acknowledging some of the good things the justice system produces, such as judicial decisions that have extended a variety of important individual rights. The progress made in the courts by advocates of gay marriage is nothing short of astonishing. And in the criminal law context, a generally reactionary Supreme Court has nevertheless in recent years expanded the protection provided by the Confrontation Clause and imposed limits on the right of the police to track a defendant’s movements by placing a GPS device on the undercarriage of the defendant’s car, bring a drug-sniffing dog to a defendant’s front porch, and search an arrestee’s cell phone incidental to a lawful arrest.
None of this means we don’t have serious problems. The criminal justice system incarcerates far too many people for far too long. Mandatory minimum sentences tie judges’ hands and give prosecutors too much power, and so-called “truth in sentencing” laws eliminate the incentive for prisoners to rehabilitate themselves. The ill-considered Sentencing Reform Act, which led to the federal sentencing guidelines, contributed substantially to making the United States the world’s mass incarceration capital, and the equally ill-considered Antiterrorism and Effective Death Penalty Act (AEDPA), along with some truly misguided Supreme Court decisions, have turned the writ of habeas corpus, once known as the Great Writ of Liberty, into a virtually unworkable remedy for state prisoners whose convictions were obtained through constitutional violations.
But the situation isn’t as hopeless as Spence suggests. The correctional population has declined for four consecutive years. And some states have substantially reduced prison populations and costs, expanded and strengthened community-based sanctions, and relied more extensively on treatment programs for people suffering from mental illness and substance abuse. It goes without saying that an enormous amount needs to be done, but continued progress is certainly a possibility. To make it a reality will require the commitment and talent of many different kinds of people: intellectuals, activists, courageous public officials, and, of course, great litigators like Gerry Spence.