Next step in justice reform: Fewer laws
It’s time and past time to do something about the criminal-justice system, as I’ve been arguing for years. But with last week’s White House conference on criminal-justice reform, it looks as if we might just see progress, though I think we need real structural fixes, too.
Right now we have both an over- and an under-incarceration problem. The over-incarceration problem is that too many people are sent to jail for things that shouldn’t carry much jail time, if any: non-violent regulatory crimes, low-level, non-violent drug crimes, etc. Even crimes that are punished with fines can turn into jail time if the defendant can’t pay the fine, as is often the case with poor defendants. (At the same time, people who commit serious violent crimes often get out too soon.)
Then, when people do get out, they have a hard time making it honestly. Many people don’t want to hire an excon, even when the crime was a comparatively mild one. And many ex-cons lack the skills to make it in the employment world, though the current booming job market is helping with that.
Coming out of the White House conference, it looks like there are two things happening: First, work on "improving re-entry, rehabilitation and workforce training programs." And second, sentencing reform under the First Step Act, which has already passed the House of Representatives and which President Donald Trump encouraged senators to support. The proposal, among other things, reduces mandatory minimum sentences for non-violent drug offenders.
These are worthwhile things, which have earned President Trump praise from inner-city pastors who see the criminal-justice system’s work up close. But I don’t think they’re enough, when you look at the big picture.
The truth is, we don’t really have a criminal-justice system. Mostly, what we have is a plea-bargain system. Police arrest people, prosecutors charge them with crimes and then a deal is struck. When the police search and arrest you, you have a lot of constitutional due process rights, but they’re mostly enforceable only if you go to trial. If you go to trial, you have a lot of constitutional due process rights there. But the prosecutor’s decision to charge you with a crime (and what to charge you with), which is key to the plea-bargain deal, is subject to virtually no constitutional protections at all.
Once charged with a crime, defendants are in a tough position. First, they must bear the costs of a defense, assuming they are not indigent. Second, even if they consider themselves entirely innocent, they will face strong pressure to accept a plea bargain — pressure made worse by the modern tendency of prosecutors to overcharge with extensive "kitchen sink" indictments: Prosecutors count on the fact that when a defendant faces dozens of felony charges, the prospect that a jury might go along with even one of them will be enough to make a plea deal look attractive.
Because the vast majority of cases result in plea bargains, not trials, all the constitutional due-process rights make little difference. The result is something that, except in rare cases where the crime is high-profile or the defendant is rich, doesn’t look much like what’s taught in civics classes. It looks more like a conveyor belt to prison.
One solution is to have fewer crimes. There are so many crimes that not even the government can keep up with them all. The more crimes we create, the more criminals we create.
And that’s bad, because enforcing the law, as Yale Law professor Stephen L. Carter points out, is inherently violent. The more laws, the more violence: When New York made it a crime to sell loose cigarettes for tax reasons, Carter notes, it set the stage for Eric Garner’s death.
As Carter writes, “This is by no means an argument against having laws. It is an argument for a degree of humility as we choose which of the many things we may not like to make illegal.”
I think we’re much too quick to criminalize conduct without thinking this through. The next step in criminal-justice reform should be to drastically prune the criminal law.
Glenn Harlan Reynolds is a University of Tennessee law professor and the author of "The New School: How the Information Age Will Save American Education from Itself." Follow him on Twitter, @instapundit.