Guilty: The Collapse of Criminal Justice

Harold J. Rothwax (New York State Supreme Court, ret. (?)), Guilty: The Collapse of Criminal Justice (1996).

Amazon link.

The (now former?) Judge Rothwax wrote this book in response to his feelings that, as the title indicates, the American criminal justice system was collapsing. He was hardly alone in his crusade - hell, Bill Clinton signed the AEDPA, didn't he? (And only eight dissenting votes in the Senate, though the House had more sense.) That "voice in the crowd" aspect of the book is probably its major problem. Nothing Rothwax says is new or surprising (although maybe that's the ten-years-later perspective - googling his name brings up a lot of pages that show that there was apparently quite a bit of controversy over the book at the time it was published). He thinks juries are bad and so are unbending rules. He doesn't like excluding evidence. He thinks defendants should be forced to testify. And so on.

As to unbending rules, I would have at first said the same thing. After chapter 2 of Harsh Justice, though, I'm not so sure - Whitman presents rigidity as exemplifying and implementing American ideals of equality in the criminal justice system. There's no chance for certain people, particulary high-status people, to get better treatment (or, of course, for low-status people to get worse treatment) if the rules are strict and unbending.

Back to the book, it seems like a problem is that he's wedded to one or two values of the criminal justice system, like finding the truth, or retribution / victim satisfaction. But there are other values at work. E.g., he doesn't seem all that concerned for the rights of the accused, dismissing most efforts to put the defendant on equal ground with the prosecutor as turning criminal justice into a "sporting contest".

Now, maybe that's a bit unfair, because he's certainly not advocating going back to the lynch mobs of not-so-long-ago, but he is willing to make sacrifices, largely because of the "probability screens" set up so that by the time someone reaches trial, they've already been found "probably guilty" a number of times (investigation, indictment, etc.).

He makes a number of semi-naive comparative points, e.g. "in France, they use lay judges." It's not clear whether he's even read as much of the comparative literature as I have (which is not very much) - for instance, the things that point out that the lay judges don't really participate very much, that they pretty much vote with the lead judge, and so forth. He kind of uses comparative law in the classic way that gets comparativists dismissed: he says "look how much better is over there" and moves on.

Oh, and he loves the OJ Simpson trial, in the sense that it gives him examples for almost all of his points. (Also, Peter Neufeld, Barry Scheck's right-hand-man at the Innocence Project, makes a couple of very unflattering appearances, both in Rothwax's court and in the OJ trial.)