Abstract
In The Machinery of Criminal Justice, Stephanos Bibas provides a critical view of the current practice of criminal justice in America and makes a compelling case for a shift that would reintegrate the procedural elements of the criminal justice system with its substantive goals. He begins with an overview of the history of the American criminal justice system, in which he highlights the major changes that have taken place as the system has evolved. He places particular emphasis on those changes that have led to the operation of the criminal justice system as a “machine” focused on efficiency. Most concerning to Bibas is the fact that most elements of the criminal justice system take place behind closed doors (from plea bargain negotiations to corrections), and without the input of average citizens whom Bibas refers to as “outsiders” of the current system.
Bibas argues that this system is maintained by the current incentive structure for lawyers (i.e., to clear cases quickly) but is problematic for victims, defendants, and citizens. Victims are deprived of a participatory role in the current criminal justice machine and may not have the ability to express the way that the victimization experience has impacted their lives, express anger with the offender, or even see justice carried out on their behalf. Defendants are not provided an opportunity to express remorse for their crimes and accept responsibility, which Bibas states is a critical aspect of a successful criminal justice process. Even when they are punished, the punishment takes place in an environment that many Americans will never see or accurately understand (i.e., jails and prisons). Citizens are excluded from essentially all aspects of the criminal justice system, including the ability to express their reactions to the crime or even to witness the enforcement of social order and justice. Overall, Bibas argues that the criminal justice system is run exclusively by “insiders” who focus on efficiency, even if it comes at the expense of community involvement and ideas of justice.
Bibas presents a persuasive argument for the importance of conducting criminal justice as a public “morality play” in which victims, defendants, and citizens are able to participate. This morality play would operate as “a form of educational social theater” (Bibas, 2012, p. xv) and send clear messages about what behavior is considered good, what behavior is considered bad, and help to both communicate and reinforce a social consensus of values. To be clear, Bibas does not blame lawyers for all of the problems that he identifies with the criminal justice system. However, through a gradual move toward a more mechanized, efficiency-oriented system, he argues that concessions have been made in the process of justice. Perhaps the most cogent example of this phenomenon, provided by Bibas, is that “equivocal pleas” (guilty pleas that allow a defendant to accept legal guilt without accepting moral guilt, such as pleas of no contest or the lesser used Alford plea) should be banned from the courts. By allowing such pleas to be entered, the current criminal justice system is ambiguous about the meaning of guilt and accountability and fails to vindicate the victims who have suffered real losses. These pleas undermine the state’s ability to use the criminal justice system as a morality play and thus cost society the intangible experiences of outrage, justice, vindication, forgiveness, and redemption.
In Chapter 3, Bibas presents empirical research of his own, but the sample was limited (n = 34 individuals involved in the courts as either attorneys or judges) and the selection criteria was not clear. In Chapter 4, Bibas provides concise but useful overviews of the victim’s rights movement, the restorative justice movement, and the therapeutic justice movement, and discusses the impact (and potential utility) of each in improving the criminal justice system.
As a whole, this book presents new and innovative ideas from a well-respected legal scholar and former attorney. Bibas’ knowledge of how the criminal justice system functions in a practical sense makes his concerns seem genuine and expressive of legitimate causes for concern. Ultimately, Bibas suggests a variety of reforms that would increase public involvement in criminal justice and help bridge the current gap between the substantive and procedural criminal law. Some of these reforms (e.g., providing the public with data about policies priorities) are more realistic than others (e.g., using citizen advocates to spend time in police departments and prosecutors’ offices to review the work being done there). Bibas acknowledges that some of his recommendations would require long-term changes and substantial shifts in current practices, but argues that, even if idealistic or difficult to implement, a better criminal justice system is worth pursuing.
When approaching this text, criminal justice scholars may be put off by the author’s extensive use of endnotes. I found myself flipping to the endnotes regularly in search of additional information, in this relatively short text (165 pages). A sociologically-inclined scholar will find that this book lacks development in some areas that would help strengthen the author’s treatment of the criminal justice system. Although the issue of discretion is central to the text, the risk of discrimination or bias that is introduced by individual discretion is not adequately addressed. Statements such as, “Because insiders apply the rules unevenly, the result is renewed sentencing disparity as women, whites, citizens, the well-off, and the educated receive lighter sentences,” (p. 44) suggest that the author is aware of such issues, but he does not address them in a sufficient way. The author identifies and discusses many costs to society associated with the current criminal justice system, but bias and discrimination are substantial costs that should have been addressed more completely here. This book would be most appropriate as a supplement to a textbook in a law school course, or perhaps an undergraduate course dealing with substantive and procedural law or the philosophy of law.