This is the fourth in a five-part series guest blogging about our new book. Confronting justice failures: impunity for murder and rapeAvailable hereIn our previous post, we explored the frequency and cost of justice failure. Good public policy (including legal rules) must balance competing societal interests, and this is particularly true in the area of criminal justice, where human lives are at stake. Yet, as we argue in our book, many aspects of the legal system reflect an outdated or miscalculated balance of interests, unnecessarily impeding justice.
For example, do statutes of limitations for rape make sense in a world of DNA evidence and untested rape kits? Should a serial killer really escape justice because a court suppressed all evidence after determining a traffic stop went too long? Should courts even make such rules?
One reason why many criminal justice rules are unbalanced in terms of delivering justice is that there has been no attempt to nuancedly calculate the costs and benefits to society, but rather an effort by judges to simply craft or apply rigid rules. Indeed, when studying the causes of justice failures in legal systems, a theme emerges that judge-crafted criminal justice policies are rarely well-crafted criminal justice policies. Below is an excerpt from a book that examines the question of balancing societal interests and who should do that balancing:
Legitimate interests that support rules and practices that impede justice can almost always be identified. Rational policymaking, therefore, cannot require a focus on justice alone, but must balance competing social interests. That said, the analysis in the previous chapter suggests that the balance of social interests in current rules and practices is generally lopsided and badly in need of rational and thoughtful rebalancing. Even the interpretation of constitutional rules represents a balancing of interests by judges, which may be explicit or implicit. Proper balancing of interests is likely to produce a compromise policy that is more favorable than the proponents of a particular issue would like. For example, in the case of privacy, a proper balancing of interests that reflect societal preferences is likely to satisfy neither extreme privacy advocates nor extreme justice advocates.
The importance of balancing interests is often ignored by those we call “rights absolutists,” who believe that attempts to reconcile competing interests will fatally undermine other interests. For example, privacy rights absolutists believe there is no room for creating search rules that do not impede justice, because that would lead policymakers and judges down a slippery slope to a totalitarian world without privacy rights. Such absolutist thinking creates false dichotomies in policymaking, where policymakers and the public are faced with either-or errors and are asked to choose between two extreme versions of the world. Of course, such absolutism can occur on all sides. In constructing the proposed reforms, we have sought to adhere to a delicate balance of interests based on the interests of society as a whole.
As mentioned above, the rules and practices of the justice system should reflect a balance of competing societal interests. This raises the question of who should determine the appropriate balance of interests when formulating criminal justice rules. In this paper, we have introduced the various actors that currently determine the balance of interests.
Congress has primary decision-making power over matters such as funding, statutes of limitations, pretrial procedures, rules of evidence, sentencing guidelines, and early release laws. Courts have primary decision-making power over constitutional rules such as double punishment, search and seizure limitations, interrogation rules, and exclusionary rules, and exercise sentencing discretion. Prosecutors have decision-making power over plea bargains and prosecution policy, and the executive branch has power over pardons. Some practices, such as whether to apply principles of distributive punishment (e.g., insubordination, deterrence, incapacity), are determined by multiple actors, including the courts and Congress, and these actors may be in conflict with each other.
But because the rules of the justice system should reflect a balance of interests most favored in society, the legislature is usually in the best position to make basic balancing decisions. In a democratic society, it is the elected legislature that is designed to appeal most directly to society’s values. As we noted in Chapter 6, judges are too remote from the people to respond adequately to changing public preferences. Precedent binding This means that old judicial decisions may continue to determine balances of interests that are no longer favored by society. The argument that courts are better suited to make rules because they are not politically partisan also rings increasingly hollow as accusations of judicial partisanship and threats of judicial overcapacity become more frequent. There is also no reason to believe that judges, who are generalists because they must preside over a wide range of cases, have any better expertise in specific criminal law policymaking than legislative committees or subcommittees. In the American constitutional system, judges are not intended to make laws, and it is unfortunate that in the late 20th century courts stripped the legislature of the ability to consider balances of interests in issues such as searches and seizures, interrogations, and the question of excluding improperly obtained evidence.
Opponents of the interest balancing approach to criminal law, such as “rights absolutists,” often see judges as decision-makers because judicial decisions are harder to change than democratically passed laws, and because judges typically enforce “rights” without considering the societal impact and are comfortable with that approach. However, such an absolutist view misinterprets the situation by assuming that judges are somehow uninfluenced by personal or political preferences. Judges are engaged in law-making when they compile the twelve constitutional terms into a constitutionally mandated, usually highly complex, book-length set of decisions, and this law-making is often done by applying the judge’s attributes in balancing competing interests.
A set of rules created by the judiciary is not as sacrosanct as a set of rules created by the legislature. However, rules enacted by the judiciary are less democratic in their balancing of interests and are harder to change. Many “rights absolutist” jurists have been comfortable with less democratic judicial decision-making in the past, when they tended to agree with the outcomes of judicial legislation, but as the recent shift in the ideology of Supreme Court decision-making shows, such a view is based on convenience and is not unique to the judiciary. Indeed, an important step toward depoliticizing the judiciary would be to return more of the power to balance interests to a democratically elected legislature that is constitutionally better suited to resolving political problems.
Perhaps a more sensible and democratic system of decision-making accountability is found in the British Parliament, which has the final authority to set the rules and practice of criminal law. For example, when public opinion in the UK leaned toward allowing a new compelling evidence exception to the principle of double punishment, all it took was a parliamentary act, rather than a battle over judicial interpretation or the nearly impossible hurdle of passing a constitutional amendment. A better approach for the United States might be for the courts to decline the opportunity to be legislators more often and to inform the legislature more frequently that a balanced argument requires a legislative solution, or that a particular reform is needed. Even if the legislature refuses to follow such judicial advice, judicial remedies should be limited and open to amendment by subsequent legislation. If we take the constitutional separation of powers seriously, judges should not simply make new laws.
In the next post, I will provide a preview of some of the reforms we propose in our book to reduce judicial failures without significantly undermining other valuable societal benefits.
