Unfair

by Adam Benforado

  Problem-solving courts don’t ignore these realities; they accept and address them. Indeed, one of the underlying motivations for problem-solving courts is the notion that social science should be employed to understand how legal rules and processes actually impact the well-being of those who come under its command. DeMatteo et al., “Treatment Models,” 555; Christopher Slobogin, “Therapeutic Jurisprudence: Five Dilemmas to Ponder,” Psychology, Public Policy, and Law 1 (1995): 193–219.

  So, rather than acting as adversaries: DeMatteo et al., “Community-Based Alternatives,” 67; DeMatteo et al., “Treatment Models,” 556. The role of the prosecutor may present the greatest shift: unlike in a traditional criminal law case, the prosecutor in a problem-solving court is not focused on high conviction rates and harsh sentences. DeMatteo et al., “Treatment Models,” 556; Elaine M. Wolf, “Systemic Constraints on the Implementation of a Northeastern Drug Court,” in Drug Courts in Theory and in Practice, ed. James L. Nolan, Jr. (New York: Aldine de Gruyter, 2002), 27–50.

  Drugs courts, for example: DeMatteo et al., “Treatment Models,” 555.

  Problem-solving courts instead use: DeMatteo et al., “Treatment Models,” 555; Michael C. Dorf and Charles Frederick Sabel, “Drug Treatment Courts and Emergent Experimentalist Government,” Vanderbilt Law Review 53 (2000): 831–83.

  Research shows that the more humane: DeMatteo et al., “Community-Based Alternatives,” 69. That said, some critics have raised concerns that specialty courts lack the procedural rigors to deliver fair and equal justice, while others have suggested that judges and attorneys lack training and expertise in dealing with cases of mental illness, drug abuse, and other specialized problems. Leon Neyfakh, “The Custom Justice of ‘Problem-Solving Courts,’ ” Boston Globe, March 23, 2014, http://www.​bostonglobe​.com/​ideas/2014/03/22/the-​custom​-​justice-​problem-solving-​courts​/PQJ​LC75​8Sgw​7qQhi​efT​6MM/​story.​html.

  Those who come before: DeMatteo et al., “Community-Based Alternatives,” 68. They also appear more likely to believe that they were treated with dignity. Neyfakh, “The Custom Justice of ‘Problem-Solving Courts.’ ”

  Drug courts get similarly high marks: DeMatteo et al., “Treatment Models,” 558; C. West Huddleston, Douglas B. Marlowe, and Rachel Casebolt, Painting the Current Picture: A National Report Card on Drug Courts and Other Problem Solving Court Programs in the United States (Alexandira, VA: National Drug Court Initiative, 2008); Douglas B. Marlowe, David S. DeMatteo, and David S. Festinger, “A Sober Assessment of Drug Courts,” Federal Sentencing Reporter 16 (2003): 113–28; DeMatteo et al., “Community-Based Alternatives,” 65. For instance, research suggests that every $1.00 invested in drug courts brings $3.36 in benefit to the criminal justice system for higher-risk offenders (and $2.21 in benefits overall). DeMatteo et al., “Community-Based Alternatives,” 65.

  With more than three thousand: Neyfakh, “The Custom Justice of ‘Problem-Solving Courts’ ”; DeMatteo et al., “Treatment Models,” 553.

  Yet they still handle only: Although drug courts were first to arrive on the scene, today, they manage only about 5 percent of those who would be eligible to participate in them. DeMatteo “Treatment Models,” 560.

  And the major question is: One problem with problem-solving courts is that while they do a far better job at understanding and then treating the specific issues underlying an offender’s criminal behavior than the standard incarceration approach, they still rely on overly general classifications and channeling. For instance, a significant number of those who end up before mental-health courts also have serious substance abuse problems that may not be actively treated. DeMatteo et al., “Community-Based Alternatives,” 68. And those who find themselves before drug courts can have very different dependencies, yet they tend to all face the same general protocols. Most importantly, the categories of covered individuals naturally leaves many offenders stuck with the ineffective and cruel status quo.

  Victims shouldn’t be pushed to the side: Paul G. Cassell, “Standing for Victims: They Need Their Own Constitutional Amendment,” Slate, June 14, 2012, http://hive​.slate.com/​hive/how​-can-we-fix-constitution​/article/standing-for-victims.

  It makes little sense that: Cassell, “Standing for Victims.”

  They should be permitted an active role: Cassell, “Standing for Victims.”

  Recent research suggests that such actions: Julie Juola Exline et al., “Forgiveness and Justice: A Research Agenda for Social and Personality Psychology,” Personality and Social Psychology Review 7, no. 4 (2003): 337–48; Michael Wenzel and Tyler G. Okimoto, “How Acts of Forgiveness Restore a Sense of Justice: Addressing Status/Power and Value Concerns Raised by Transgressions,” European Journal of Social Psychology 40, no. 3 (2010): 401–17; Charlotte vanOyen Witvliet et al., “Retributive Justice, Restorative Justice, and Forgiveness: An Experimental Psychophysiology Analysis,” Journal of Experimental Social Psychology 44, no. 1 (2008): 10–25. Some recent research, for instance, suggests that it is a perpetrator’s change in moral attitude communicated to the victim that brings a victim satisfaction and closure, not simple punishment. Friederike Funk, Victoria McGeer, and Mario Gollwitzer, “Get the Message: Punishment Is Satisfying If the Transgressor Responds to Its Communicative Intent,” Personality and Social Psychology Bulletin 40, no. 8 (2014): 993–95. Unfortunately, such communication is very rare.

  In fact, granting forgiveness may provide: Charlotte vanOyen Witvliet, Thomas E. Ludwig, and Kelly L. Vander Laan, “Granting Forgiveness or Harboring Grudges: Implications for Emotion, Physiology, and Health,” Psychological Science 12, no. 2 (2001): 117–23; Witvliet et al., “Retributive Justice, Restorative Justice, and Forgiveness,” 10–25; Giacomo Bono, Michael E. McCullough, and Lindsey M. Root, “Forgiveness, Feeling Connected to Others, and Well-Being: Two Longitudinal Studies,” Personality and Social Psychology Bulletin 34, no. 2 (2008): 182–95.

  A single death-penalty case: Amnesty International, “Death Penalty Cost,” accessed May 27, 2014, http://www.amnestyusa.org/​our-work/issues/death​-penalty/us-death-penalty-facts​/death-penalty-cost; National Coalition to Abolish the Death Penalty, “Cost,” accessed May 27, 2014, http://www.ncadp.org/​pages/cost.

  The average cost of housing an inmate: Sal Rodriguez, Fact Sheet: The High Cost of Solitary Confinement (Washington, DC: Solitary Watch, 2011), http://solitarywatch.com/​wp-content​/uploads/2011​/06/fact-sheet-​the-high-cost-of-​solitary-confinement.pdf.

  In only 5 to 10 percent of all: Innocence Project, Reevaluating Lineups: Why Witnesses Make Mistakes and How to Reduce the Chance of a Misidentification (New York: Benjamin N. Cardozo School of Law, Yeshiva University), http://www.​innocenceproject.org/​docs/Eyewitness_​ID_Report.pdf.

  And yet we convince ourselves: J. D. Gowdy, “The Bill of Rights and James Madison’s Statesmanship,” The Washington, Jefferson, and Madison Institute (blog), June 9, 2013, http://wjmi.blogspot.com/​2013/06/the-bill-​of-rights-and​-james-madisons.html.

  Why should law be different: Imagine if we possessed the knowledge to light houses with electricity, make walls that didn’t crack in earthquakes, and produce hot running water whenever we liked, but were told that such innovations were ill-advised because our dark and cold, wood slat houses had worked well enough (surprisingly, well, even) for the previous two hundred and fifty years. Would we accept that? Would we sit idly by, shivering in candlelight awaiting “the big one”? No—we would push ahead. It is true: not every building design innovation has been successful (indeed, some have resulted in injuries or even deaths) and many core construction principles have lasted for decades if not centuries, but we have not resisted or feared progress.

  In Montgomery, Alabama: Melissa Block, “Theodore Parker and the ‘Moral Universe,’ ” NPR, September 2, 2010, http://www.npr.org/​templates/story​/story.php​?storyId=129609461.

  And ten years ago: Roper v. Simmons, 543 U.S. 551 (2005).

  It disappeared because:
Peter T. Leeson, “Ordeals,” Journal of Law and Economics 55 (August 2012): 709-11; Robert Bartlett, Trial by Fire and Water: The Medieval Judicial Order, (New York: Oxford University Press, 1986), 80. In the early years of the thirteenth century, Pope Innocent III launched a wide-reaching effort to eradicate ordeals—with the Fourth Lateran Council banning priests from continuing to participate in them—largely on the grounds that they were uncanonical and violated the Christian dictate not to tempt the Lord. Leeson, “Ordeals,” 709-11; Bartlett, Trial by Fire and Water, 80. With the religious backbone removed, the practice within secular judicial systems collapsed—in some places, like Denmark and England, following formal prohibitions and in other places, like France, as a matter of informal acceptance. Leeson, “Ordeals,” 709–11. By 1300, in most of Europe, the pools had dried up and the irons had cooled. Robert Palmer, “Trial by Ordeal,” Michigan Law Review 87 (1989): 1547, 1554.

  And what replaced the ordeal: Langbein, “Torture and Plea Bargaining,” 3-4; Palmer, “Trial by Ordeal,” 1547, 1554. The trial by cold water, for instance, involved no significant physical harm, while even the person deemed innocent through judicial torture suffered immensely. Just as critically, there is reason to think that ordeals might very well have been more effective than torture at sorting the innocent from the guilty. One scholar has suggested that in a population that believed fervently in God’s power to intervene in man’s affairs, those who were guilty and those who were innocent would both have expected to be revealed as such during the ordeal. Leeson, “Ordeals,” 691. So, the guilty were inclined to admit to their crimes to avoid suffering the ordeal as well as the punishment and, knowing that those who elected to undergo the ordeal would tend to be innocent, priests could manipulate the outcome toward exoneration by allowing a burning iron to cool or determining that a person had sunk to a sufficient distance in water. Leeson, “Ordeals,” 691. By contrast, with judicial torture, both the innocent and guilty parties faced the same calculation and optimal strategy: refuse to confess and hope that you were freed before the pain simply became too unbearable or, if the prospect of torture was worse than death, confess before proceedings began. As a result, the sorting effect of judicial torture was not between the upright citizen and the criminal, but between the extremely pain-tolerant and the extremely pain-sensitive. Langbein, “Torture and Plea Bargaining,” 7. And the seemingly robust checks built into the system to ensure that only parties who were very likely guilty were tortured and that confessions were true and voluntary turned out to be hopelessly ineffective. Langbein, “Torture and Plea Bargaining,” 7. Although a party had the ability to recant a confession as part of the required hearing after an admission of guilt under torture, if that happened, the person would be sent back to be examined under torture again. Langbein, “Torture and Plea Bargaining,” 7, 14. Furthermore, suspects undergoing interrogation often learned of facts about the crime inadvertently from those conducting the interrogation, jailers, and others—a problem that continues to plague our system today. Langbein, “Torture and Plea Bargaining,” 7.

  For roughly the next half millennium: Langbein, “Torture and Plea Bargaining,” 4, 12. In Continental Europe, judicial torture was routinely administered and widely accepted. Langbein, “Torture and Plea Bargaining,” 3.

  Like us, they constructed: Langbein, “Torture and Plea Bargaining,” 5. A threshold akin to “probable cause” had to exist before torture could be ordered and, as detailed in contemporary treatises meant to guide judges, clerks, and other court actors, specific protocols had to be followed, such as ensuring that the questioning dealt with topics of which only the accused would know and barring suggestive questioning by the examining magistrate. Langbein, “Torture and Plea Bargaining,” 5, 7. Likewise, any confession under torture had to be affirmed subsequently without torture and investigators were charged with confirming factual details elicited through torture (e.g., officials were meant to verify the disclosed location of the murder weapon to ensure that the accused’s statements were true). Langbein, “Torture and Plea Bargaining,” 5, 7. This was not brutality for brutality’s sake: this seemed to be the just and ordered system, based in reason, that had evaded those who had relied on godly intervention to reveal innocence through supernatural miracles.

  And what sets us apart: There is, indeed, an odd parallel between our modern mechanism of plea bargaining and the tortured confessions of many centuries ago. Langbein “Torture and Plea Bargaining,” 12. Both seemingly short-circuit core legal principles that purportedly guide our criminal justice system, including transparency, shared adjudicatory responsibility and participation, freedom from coercion, and proof of guilt as a prerequisite to punishment. Langbein “Torture and Plea Bargaining,” 18. The modern prosecutor deciding to offer a plea agreement enjoys an incredible amount of discretion and scope of power, in some ways more akin to the medieval magistrate—as accuser, investigator, and sanctioner, all in one—than to the modern trial judge, limited largely in his presiding role and constrained by precedent and statutory guidelines. Langbein, “Torture and Plea Bargaining,” 18. And the contemporary prosecutor oversees a process that is unequivocally coercive: “admit your guilt or we will break your bones” is not so fundamentally different from “admit your guilt or we will seek the death penalty or nail you with life in prison without the possibility of parole.” Langbein, “Torture and Plea Bargaining,” 12. Perhaps most critically, it is hard to see clear progress toward a world in which only people who have been proven guilty with objective evidence are subjected to punishment, when, in 90 to 95 percent of cases in the United States today, there is no trial at all and the sole trigger for punishment is—just as it was with judicial torture—an admission of guilt by the accused. Langbein, “Torture and Plea Bargaining,” 12–13.

  It would have taken an exceptional person: John F. Benton, ed., Self and Society in Medieval France: The Memoirs of Abbot Guilbert of Nogent (New York: Harper Torchbacks, 1970), 212–14.

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