Unjust Secular Justice

The Machinery of Criminal Justice
by stephanos bibas
oxford, 320 pages, $75

There are two criminal justice systems in America. This great divide cleaves not white and black, rich and poor, male and female (though such divisions are very real) but rather the criminal justice system of the popular imagination and the system as it really exists.

The popular image of criminal justice is exemplified by the last half of a Law and Order episode: Wrongdoers are confronted with their crime, victims find vindication, and the community—represented by public-spirited detectives and attorneys—wrestles with a difficult moral question. Criminal justice isn’t just about locking up bad guys. It provides opportunities for individuals to express remorse and forgiveness and for the community to define and redefine its standards and boundaries.

This has little to nothing to do with criminal justice as it is practiced today. The pervasive use of plea bargains (95 percent of criminal cases end in a guilty plea) means that very few cases go to trial. The process gives no opportunity for the kind of moral reckoning, individual or communal, we associate with criminal justice. Instead, the judge, prosecutor, and defense attorney—all pressed for time and underfunded—seek speedy outcomes, with little attention offered to the defendant or victim.

In his book The Machinery of Criminal Justice, Stephanos Bibas, a professor of law at the University of Pennsylvania and former federal prosecutor, calls us to reclaim once-central values like remorse, forgiveness, reconciliation, and reintegration. It is a call we have heard before, from figures like Chuck Colson, but never in such convincing detail.

Bibas seeks to reform criminal justice by bringing it back to its roots in the communitarian and (in a positive sense) moralistic justice of the colonial era. While English law in the late eighteenth century listed some two hundred capital crimes (more than any other European nation), England’s American colonies took a more merciful tack. Property crimes were capital only for repeat offenders. Even rape and manslaughter were not capital offenses in some colonial jurisdictions.

These changes, which went further in northern colonies with more self-consciously religious foundations, were deeply tied to the faith of the colonists. The colonists, Bibas writes, “recognized that everyone was weak, so anyone of any social class could succumb to temptation and crime.” They saw most criminals “as brothers whom fellow citizens should help up again after their falls. The job of the criminal justice system was to reclaim the errant sheep and reintegrate them into the flock.”

This colonial ethic of mercy was also displayed in the use of what Blackstone called “pious perjury”: Juries, often at the instruction of judges, would convict defendants of lesser, non-capital offenses unless they were repeat or incorrigible offenders. In the case of crimes like sheep stealing that had no obvious lesser offense, juries often would simply acquit the defendant. Before the Revolution, the largest colony, Pennsylvania, “convicted fewer than two people per year of capital offenses and executed only about one per year.”

Another means of mercy was the extension of the so-called “benefit of clergy.” Bibas writes: “Originally, clergy and monks were exempt from execution by secular authorities because only the church could punish them.” A man’s status as a clergyman came to be determined by whether or not he could read, and the passage that came to be used as a test was the opening of Psalm 51: “Have mercy upon me, O God, according to thy loving-kindness: According unto the multitude of thy tender mercies blot out my transgressions.” This “benefit” was extended so that any first-time offender who had memorized the passage could be let off.

Yet there was nothing therapeutic or nonjudgmental in this colonial practice. Mercy was extended, but justice was insisted upon. The very acknowledgement by both community and wrongdoer of the gravity of the crime—and of the criminal’s particular responsibility for it—made possible a true reconciliation. In the latter half of the seventeenth century in one Massachusetts county, at least sixty-seven criminal convicts went on to work as selectmen, constables, clerks, tithingmen, and even justices of the peace. Nine of ten female criminal convicts went on to marry after their conviction.

There were notable downsides to this colonial system (the fact that such mercy was rarely shown to slaves being the most prominent), but it had an impressive ability to reintegrate offenders into the community. “In the colonies, punishment was public, shameful, and even painful,” Bibas writes, “but it was most often temporary.”

Bibas offers this history as a challenge to the squeamish secularism of today’s legal establishment. Today’s consensus holds that criminal justice needs to be protected from popular involvement lest moralistic concerns lead to harsher sentences and unequal results. Better to treat like crimes alike rather than take account of, say, shows of contrition.

Rationalist, anti-religious criminal justice reform was rooted in the arguments of figures like the Enlightenment jurist Cesare Beccaria, who placed practical over moral concerns, arguing that the aim of criminal justice should be, in Bibas’ words, “to deter crime rather than exact deserved retribution.”

Jeremy Bentham expressed this new outlook with characteristic starkness when he described the criminal justice system as a “mechanism to inflict enough pain to outweigh the pleasure of crime.” Here we find the genesis of the “machinery” of Bibas’ title: Offenders were no longer fallen brothers in need of forgiveness but rational agents to be controlled by carrots and sticks.

This secular view gained sway as American courts faced swelling caseloads and bursting dockets. Harried judges and lawyers needed to be as efficient as possible—and this was an end easily served by treating criminal justice as a simple game of incentives and disincentives. Limiting popular involvement and bracketing moral concerns had the added benefit of reducing insiders’ accountability either to the popular will or to a higher law.

While in the colonial era most cases went to trial (and most trials lasted a stunningly short thirty minutes), more and more are now resolved by a plea bargain. Nowhere is our abandonment of colonial ideas of criminal justice more apparent than in no-contest pleas that allow defendants to receive lighter sentences without any admission of guilt. So-called “Alford” pleas go further by allowing the defendant to plead guilty in pursuit of a favorable sentence even while protesting his innocence.

Bibas laments how these “guilty-but-not-guilty” pleas rob victims of the closure and public vindication that is their due. Most crimes are committed not against the state but against individuals whose interests should not be ignored or dismissed. Guilty-but-not-guilty pleas also harm the defendant. Just as admitting that you have a problem is the first of twelve steps for addiction recovery, acknowledging guilt is often a wrongdoer’s first move toward reform.

How to step back from the modern plea-bargaining system and recapture the communal and moral virtues of the colonial trial? It will be necessary, Bibas argues, both to reduce unmanageable caseloads that have contributed to the rise of plea bargaining and to overcome secular horror of communally and morally grounded alternatives. Proposals are likely to offend the sensibilities of someone or other, and in this regard Bibas does not disappoint.

Rather than propose decriminalizing drugs—one of the most obvious ways to reduce caseloads—Bibas recommends a shift in enforcement priorities: “Not all victimless crimes are alike. Crack houses and street-corner drug dealers breed neighborhood violence and crowds of addicts, while discreet sales may have little spillover effect on others.”

He also recommends a greater focus on “violent and property crimes, as well as drug crimes that harm others.” Here we see some of the wisdom of colonial Americans, who expressed moral disapproval of so-called victimless crimes like consensual sodomy but rarely convicted any one of them. This did not stem from a laissez-faire attitude so much as an awareness that the crimes most in need of addressing are those with the most immediate victims.

To reduce recidivism, Bibas wants prisoners to receive educational and vocational training to end the idleness that makes imprisonment little more than an apprenticeship in vice. Another of his proposals, which is sure to be controversial but has a long and not altogether unsuccessful history, is prisoner conscription: the enlistment of convicts to defend the country whose laws they once broke. Hard work and military service make especially clear that a convict’s debt has been repaid, thus facilitating his eventual reacceptance into society.

Bibas’ most novel idea is what he calls “restorative sentencing juries.” The juries, which would include a few friends or family members of both victim and defendant, would help determine the sentence based on the wrongdoer’s real expressed remorse and the victim’s willingness to forgive and extend mercy.

The parties would be able to cast blame, ask for forgiveness, and reconcile—or not. This may not be as efficient or equitable as the speedy machinery of plea bargaining (whose own equitability has been overstated), but it would return criminal justice to a focus on redemption, vindication, and communal reconciliation.

The Machinery of Criminal Justice is an invaluable aid to those who seek a criminal justice system that reflects the psalmist’s vision of a world in which mercy is balanced with truth, justice with peace. When Chuck Colson passed away earlier this year, Stephanos Bibas hailed him as the “most significant” criminal justice reformer of the past century.

Bibas shares with Colson the conviction that our overburdened system consigns too many men to lives of despair, in no small part because secular elites have blinded themselves to our human need for the types of judgment and mercy that will be inevitably moral and communal.

Matthew Schmitz is deputy editor of First Things.