Photographer: Elizabeth Lippman/Bloomberg
Photographer: Elizabeth Lippman/Bloomberg

“As a prosecutor, a judge, an attorney in private practice, and now, as our nation’s attorney general, I’ve seen the criminal justice system firsthand, from nearly every angle. While I have the utmost faith in -- and dedication to -- America’s legal system, we must face the reality that, as it stands, our system is in too many respects broken.”

In a widely reported speech this week, Eric Holder delivered that assessment of U.S. criminal justice. Many commended his frankness, but if you ask me he’s confused. A broken system of justice shouldn’t command the utmost faith; it should arouse the utmost skepticism. And his appraisal was actually too generous. America’s criminal-justice system is not “in too many respects broken”: It’s a national disgrace, from top to bottom.

The U.S. is not a forgiving country, and most Americans believe in harsh punishment for serious crimes. I’ve no quarrel with that. But the principle of proportionality -- really, the very notion of justice in sentencing -- seems to have been overthrown. According to a forthcoming report from the American Civil Liberties Union, 2,074 federal inmates are serving sentences of life imprisonment without possibility of parole for nonviolent crimes. Think about that.

Guilt Trips

The U.S. -- a country that loves freedom, so I’m told -- has virtually abolished trial by jury. According to one recent count, guilty pleas resolve 97 percent of federal cases that are prosecuted to a conclusion. Instead of bothersome trials, the U.S. has a plea-bargain system in which prosecutors not only bring the charge but also, in effect, determine guilt and pass sentence. As this astonishing assault on civil liberty proceeds, judges have allowed themselves to be turned into rubber-stamping functionaries, apparently for reasons of administrative simplicity.

Meanwhile, Congress has criminalized vast new swaths of activity. In extending the criminal law into the regulatory domain, it has removed the requirement of “guilty mind” (a bedrock principle in common law) from many of the new crimes it has invented -- so you can be sent to prison for doing something you didn’t know was wrong. In the land of the free, you can be sent to prison if a worker you’re supervising causes some damage while you’re off-duty and at home.

In response to momentary spasms of popular outrage over front-page crimes, Congress has also enacted a raft of mandatory minimum sentences. The express purpose of these rules is to deny courts the ability to take mitigating circumstances into account. The effect is to send large numbers of people to prison for unconscionably long periods of time -- not because a judge has calculated that justice requires it, but because an immoral rule must be mechanically applied. Frequently you read of judges deploring the sentence they have to pass as they deliver it. They do it anyway. It’s the law.

These elements, disturbing enough in themselves, come together in an especially pernicious way. The combination of plea bargains and mandatory minimum sentences -- not to mention the U.S. practice of stacking charge upon charge, with sentences to run consecutively -- gives prosecutors awesome powers of intimidation. One dreads to think how many innocent people are in U.S. prisons, and will be felons for life, because they were offered the choice of a relatively light sentence if they pleaded guilty to a lesser charge, or the risk of decades of incarceration if they preferred to take their chances with a maxed-out indictment at trial.

Prosecutorial Decency

In this system, everything -- everything -- depends on the decency and restraint of prosecutors. Most no doubt are indeed decent and restrained. (If that weren’t so, the demand for radical change would already be overwhelming.) But some lust after high political office and wish to make their mark; some are vain; some, as in any profession, are just bad people. The American way is to create checks and balances, so that the system’s integrity doesn’t depend on the incorruptibility of individuals. How strange that the country has made an exception for criminal justice.

You can tell from my puzzlement and outrage that I’m not a lawyer. It takes years of legal training to be acquainted with this system and not be appalled by it. Somebody who knows more about the law than I do will have to explain why plea bargains and mandatory minimum sentences don’t violate the Constitution’s requirements of “due process” and “equal protection of the laws,” or why life in prison without parole for a nonviolent offense isn’t an instance of the “cruel and unusual punishment” forbidden by the Eighth Amendment. You’ll need an expert to tell you why the Supreme Court was right to uphold a sentence of 50 years to life (under California’s three-strikes rule) for the crime of stealing nine video cassettes.

Holder says he’ll tweak instructions to prosecutors so that they don’t bring charges that trigger grossly inappropriate mandatory minimum sentences. Well, that’s great -- but how come his prosecutors needed to be told that in the first place? How come Congress passed those laws to begin with? And how come it leaves them on the books as the grievous miscarriages of justice multiply?

Holder’s speech cast much of the argument as an appeal to save money: Prison is expensive; greater use of noncustodial sentences and parole would be more cost-effective; and so on. Again, good. The need for economy is one reason that some states have experimented with sentencing reform. Far be it from me to resist any argument that pushes in the right direction. But the issues at stake in all this are rather more fundamental than what it costs to keep somebody locked up.

Despite the vaunted separation of powers, Congress, the courts and the executive have cooperated in violently skewing the balance of power between ordinary citizens and the government’s endlessly proliferating law-enforcement agencies. The Constitution’s framers would, I think, be stunned. The U.S. criminal-justice system is beyond illiberal. It’s beyond what any nation of laws should tolerate.

(Clive Crook is a Bloomberg View columnist.)

To contact the writer of this article: Clive Crook at ccrook5@bloomberg.net.

To contact the editor responsible for this article: James Gibney at jgibney5@bloomberg.net.