How to Improve American Justice

Commentary by Pete du Pont

Has the American justice system spun out of control? With the agitation over au pair Louise Woodward, O.J. Simpson, Rodney King, the Menendez brothers and other well-publicized decisions, it seems like the system "gets it wrong" all too often. But are things really more woeful than ever? History suggests not. At most times dissatisfaction with our criminal justice procedures has been widespread.

If the police fail to discover who committed a crime it is just as much a justice system failure as when a judge overrules a jury verdict and releases a criminal with "time served." The principal difference, as University of Arizona economist Gordon Tullock points out, is that police failures receive little publicity. Criminals usually get away with their crimes since victims only report half of them, and the police only make an arrest in 20 percent of the crimes they know about. So the greatest opportunities to improve justice are at the level of the police. If the police could double their arrest clearance rate it would have a much bigger effect on injustice than almost any change in our courtroom procedures.

In the preponderance of the cases received from the police prosecutors dismiss or convict without litigation in order to avoid the expense and uncertainty of a trial. In fact 92 percent of those in prison have waived their right to a trial in favor of a guilty plea and agreement to a pretrial sentence. These confessions virtually guarantee that the overwhelming majority of prisoners are guilty of the crimes of which they were convicted. The remaining eight percent of felons were convicted at trial, half by juries and half by judges.

Justice Oliver Wendell Holmes claimed, "the man who wants a jury has a bad case." Yet half of criminal defendants choose a bench trial because the last thing they want is the common sense judgment of the community. Others avoid juries because such trials can have the most unlikely outcomes. A defendant might stand a better chance with a professional jurist than with conscripted amateurs because of a defense based on a technicality, legal issue or the "reasonable doubt" standard that may work better with a judge. In 1993 federal judges acquitted defendants in a whopping 44 percent of criminal cases, compared to only 15 percent for federal juries.

Scientific research on the accuracy of the courts is scarce. Careful studies at the University of Chicago and Oxford University in England, however, suggest that juries get it wrong in about one in eight cases, either acquitting the guilty or the more serious harm of convicting the innocent. This may sound shockingly high, but if the error rate of judges is no worse than juries, it implies that fewer than one in a hundred prisoners have been wrongly imprisoned.

Perfection is beyond our grasp, but what might be done to improve our judicial procedures? Of all the legal institutions involved in the aftermath of the Waco tragedy, for example, the one that performed best was the jury. It recognized government lies for what they were, and was able to do something about it. Given the jury's function as a check on governmental overreaching, a strong jury system is more important than ever. Appropriate reforms should aim at helping the jury function more effectively. The last thing we should do in this era of runaway government is weaken the jury. The most prominent bad idea is that jury verdicts should no longer be required to be unanimous.

We should diversify jury pools, speed the selection process and help juries to make more accurate decisions. The absurdly combative nature of American trials has debased the image of lawyers and the practice of law. The rules must be changed, if only to save lawyers from themselves. Lawyers have made too many jury trials into expensive farces by "dumbing down" the jury and limiting jurors' access to evidence. Jury selection should limit each side to two peremptory challenges.

So-called hearsay evidence, for example, could be allowed, just as it is in daily life and in the European court system, but given much less weight than direct evidence. Jurors should be able to question witnesses by submitting written questions to the judge. Jurors should be provided with paper and pencil and encouraged to take notes, among many other reforms.

The justice system has been called the indispensable adhesive holding society together. We'd better improve the bonding formula or watch civilization crumble.