As I wonder how Justice Black could have penned that paean with a straight face, I am reminded of my first appearance in the New York criminal courts at 100 Centre Street in Manhattan. In a desperate attempt to preserve the image of justice, someone had put a big plastic bag over the American flag on the judge’s dais. The bag was yellowed and grimy. Behind the judge, an incomplete set of tarnished metal letters proclaimed: IN GOD WE RUST.
I went back to 100 Centre Street in 2018. The walls have been painted and missing aluminum letters restored. The rest of it is pretty much the same.
“In the halls of justice,” Lenny Bruce used to say, “the only justice is in the halls.” Maybe not in the halls, either, for that is where the plea bargains and lawyer-client conversations take place.
Learned Hand served as a federal judge in New York for more than forty years. His view of palladium and citadel was not so sanguine: “I must say that, as a litigant, I should dread a lawsuit beyond almost anything short of sickness and death.”
No, for the men and women caught up in them, the criminal courts are neither palladiums of liberty nor citadels of justice. Citadels, perhaps, in the sense used by an English author in 1598: “a citadell, castell, or spacious fort built not onely to defend the citie, but also to keepe the same in awe and subiection.” Unfortunately, the constitutional revolution in criminal procedure has amounted to little more than an ornament, or golden cupola, built upon the roof of a structure found rotting and infested, assuring the gentlefolk who only pass by without entering that all is well inside.
MASS INCARCERATION AND SOCIAL CONTROL
Assume that Canada and the Western European countries have about the right number of people in jail. Assume that the social problem of crime in those countries is not terribly different from that in the United States. Understand that the United States incarceration rate is five to seven times that of those other countries. If these assumptions, and this understanding, are even nearly valid, 80 percent of the people in American jails should not be there. This is mass incarceration.
The heavy toll of jailed people reflects the extent to which the criminal process is used as a mechanism of social control, directed mainly at the poor and at people of color. Thirteen percent of the U.S. population is African-American; 64 percent of those incarcerated are African-American. Sixteen percent of the population is Hispanic; Hispanics are 19 percent of the incarcerated. Until the Supreme Court began to address the issue in 2012, the United States had more than 2,500 people serving life without parole for offenses committed before they were eighteen. That was global first place; Israel came in second, with seven. This is not to mention that the United States remains one of the few countries of the world that still has the death penalty.27
These figures portray what I term the substantive aspect of the issue, which could also be called over-criminalization. Minor social deviance makes you subject to criminal punishment, and for prison terms that are far longer than those imposed in other countries.
Perhaps more significantly, police and prosecutorial discretion is exercised in racially discriminatory ways. A study that became the basis for a Supreme Court case, McCleskey v. Kemp,28 found that prosecutors were 4.3 times more likely to seek the death penalty when a black person was accused of killing a white person than when a white person was accused of killing a black person. The Supreme Court’s decision refusing to take the study into account in assessing the constitutionality of the death penalty has been condemned as one of the worst in U.S. history. Professor Anthony Amsterdam called the case “the Dred Scott decision of our time.”29
How could such a system persist without being attacked and torn down as an obvious instrument of racism and repression? The proceduralist would tell us that these figures are not reason for alarm, for every person faced with incarceration has a mythic array of due process rights. I sat at dinner with a Supreme Court Justice, who explained to me that the Constitution was drafted by people who had read Isaac Newton, and who devised a mechanism of checks and balances, like clockwork. The Framers, he said, were concerned with the mechanism of government. This view is, to be sure, partial: the Framers had been revolutionaries, battlers for a certain social vision, threatened with jail or execution themselves. They were also white males who owned property, and many if not most of them counted human beings among their property. The clockwork idea is, however, powerful, for it reveals something of current Supreme Court attitudes toward the criminal process that puts all these people behind bars.
Clockwork is a powerful image because a clock is quintessentially “form.” The substance is what time it is. If there is only one clock, and it is kept by a small group of the powerful, then the time is whatever they say it is. The clock, and even the rather arbitrary decision to divide its units into 60, 60 and 12 or 24, is itself a convention established by somebody or other.
The system of mass incarceration is shielded from just criticism by two mythologies: the mythology of fair trial and the mythology of free plea bargain.
THE MYTHOLOGY OF FAIR TRIAL
Legal counsel is at the center of the formalistic bargains that dominate the criminal process.30 The Constitution is explicit: “No person shall be held to answer except,” “the accused shall enjoy,” and similar phrases introduce enumerated rights of a person charged with or suspected of a crime. Among these rights is “assistance of counsel.” We must therefore define the multiple bargains by which this promise of counsel is fulfilled.
The first such bargain is the one spelled out in the Bill of Rights. Like all the other enumerated rights, the Constitution is a promise by an ostensibly neutral state, as a condition of the overall deal struck by “We the People” who established the government to begin with. This newly formed union of states, dominated by owners of property including slaves, guarantees certain rights, the scope of which it will interpret. Whether this bargain means anything depends, here as in all its other aspects, on who is wielding the levers of state power.
A Columbia Law School study found fundamental legal error in two-thirds of the capital cases tried in the United States since 1978. Most of those errors involved police officials hiding exculpatory evidence, prosecutors and police denying the accused basic rights in the criminal justice system, and judges who overlooked those errors. Many of these judges, particularly in the “Death Belt” states of the American South, are elected in campaigns designed to fire up the vengeful spirit of the majority community. Capital cases are not unique in being corrupted by error; it is only that they have been studied most closely.
This brings us to the lawyers. Regardless of how biased the judge, how inhumane the criminal law, and how corrupt and malign the police and prosecutors, the accused is supposed to have a champion, a lawyer. The National Law Journal did a study of appointed counsel in capital cases in 1990. Given what is at stake, one would expect that only the most qualified lawyers would be found adequate to the task. By now, almost everyone has read the anecdotal evidence that this is not so. The classic story of the Texas-appointed lawyer who slept during his client’s capital murder trial has made the rounds. The trial and penalty phase lasted just thirteen hours, and the lawyer did not even make objection when the prosecutor said the jurors should sentence the defendant to death because he is gay.31
The National Law Journal found that:
• the trial lawyers who represented death row inmates in the six states were disbarred, suspended, or otherwise disciplined at a rate three to forty-six times the discipline rates for lawyers in those states.
• there were wholly unrealistic statutory fee limits on defense representation.
•