Criminal Law 2.0, by The Hon. Alex Kozinski (Why the US Justice System Really Isn’t Just)

Alex Kozinski is a judge on the U.S. Ninth Circuit. He has recently authored an article for the Georgetown Law Journal, which he simply titles “Criminal Law 2.0.” It is a comprehensive review and critique of the flaws and shortcomings of the current US justice system. My opinion is that this article is a masterpiece, a classic. Here is an experienced, seasoned, knowledgable justice system “insider” who has “figured it out.” And not only has he figured it out, but he also has some very good ideas about fixing the problems, or at least some of them. You can see the full text here: Kozinski, Criminal Law 2. I strongly encourage reading the full article.

Here is a topical summary: (Please see the full article for Judge Kozinski’s discussion of each point.)

A. The myths that cause us to think that the justice system is fair and just, when it’s really not.

  1. Eyewitnesses are highly reliable.
  2. Fingerprint evidence is foolproof.
  3. Other types of forensic evidence are scientifically proven and therefore infallible.
  4. DNA evidence is infallible.
  5. Human memories are reliable.
  6. Confessions are infallible because innocent people never confess.
  7. Juries follow instructions.
  8. Prosecutors play fair.
  9. The prosecution is at a substantial disadvantage because it must prove its case beyond a reasonable doubt.
  10. Police are objective in their investigations.
  11. Guilty pleas are conclusive proof of guilt.
  12. Long sentences deter crime.

B. Recommendations for reform – Juries

  1. Give jurors a written copy of the jury instructions.
  2. Allow jurors to take notes during trial and provide them with a full trial transcript.
  3. Allow jurors to discuss the case while the trial is ongoing.
  4. Allow jurors to ask questions during the trial.
  5. Tell jurors up-front what’s at stake in the case.
  6. Give jurors a say in sentencing.

C. Recommendations for reform – Prosecutors

  1. Require open file discovery.
  2. Adopt standardized, rigorous procedures for dealing with the government’s disclosure obligations.
  3. Adopt standardized, rigorous procedures for eyewitness identification.
  4. Video record all suspect interrogations.
  5. Impose strict limits on the use of jailhouse informants.
  6. Adopt rigorous, uniform procedures for certifying expert witnesses and preserving the integrity of the testing process.
  7. Keep adding conviction integrity units.
  8. Establish independent Prosecutorial Integrity Units.

D. Recommendations for reform – Judges

  1. Enter Brady compliance orders in every criminal case.
  2. Engage in a Brady colloquy.
  3. Adopt local rules that require the government to comply with its discovery obligations without the need for motions by the defense.
  4. Condition the admission of expert evidence in criminal cases on the presentation of a proper Daubert showing.
  5. When prosecutors misbehave, don’t keep it a secret.

E. Recommendations for reform – General

  1. Abandon judicial elections.
  2. Abrogate absolute prosecutorial immunity.
  3. Repeal AEDPA § 2254(d). (Antiterrorism and Effective Death Penalty Act)
  4. Treat prosecutorial misconduct as a civil rights violation.
  5. Give criminal defendants the choice of a jury or bench trial.
  6. Conduct in depth studies of exonerations.
  7. Repeal three felonies a day for three years. (Refers to the fact that there are too many vague, overlapping laws on the books.)

I would add two more to the General category:

•  Have all trial counsel, prosecution and defense, sworn in at the beginning of every trial.

•  Abandon political election of prosecutors.

9 responses to “Criminal Law 2.0, by The Hon. Alex Kozinski (Why the US Justice System Really Isn’t Just)

  1. Phil, Thank you for writing about Judge Kozinski’s masterful article and your valued opinions. You both offer a much needed plan to restore fair and equal justice that is a positive answer to restoring fair justice.

    Injustice creates chaos which leads to profiteering we’ve seen for years. The profiteers who collect obscene fees, grow the criminal justice and prison industries and lawmakers who oblige them, do not want to see this article, which leads to addressing meaningful solutions that would save innocent lives and hundreds of millions of scarce taxpayers dollars.

    I’m writing as a mother and grandmother, whose once wonderful, law abiding and productive lives were torn apart in 2004, in a voracious system that knows no bounds as to who they will destroy in a reckless manner, by those in positions of trust, bound by laws they do not follow themselves.

    Our tragedy will serve as a warning to others, who are naive and trusting, believing in America’s justice system, working for the common good of what is fair and right. Do no harm. Help others. Instead, we have learned a reality, kept hidden from those in their comfortable places – the world we once knew.

    After 11 years of our family living in this nightmare caused by a false allegation, wrongful conviction and wrongful imprisonment, I bear witness to the failings of America’s broken justice system and what I have studied and learned. It’s a system that puts ALL at risk for harm and destruction. Where each person in America is facing three felonies a day and does not yet know it. A depraved system that has been eroding our rights, our economy, our society and our future. This has been a growing crisis that demands attention and immediate solutions.

    From the birth of our beloved daughter in 1970, when few had ever heard of the criminal justice system or even knew a criminal lawyer, through the cycle of her life, it all changed in 2004. A heated presidential year, after 9/11, the Patriot Act, Abu Ghraib torture and abuse, and the loss of our rights. The criminal system would become a threat to all, as she would be facing the draconian laws written along the way, originating with the Mondale Act, followed by AEDPA, Adam Walsh Act and draconian mandatory minimum sentencing in the mid-90’s. We could never have imagined our once wonderful, law abiding and productive lives would be thrown into this human shredding machine.

    Our nightmare began, February 11, 2004, one that I could never have imagine happening, that would destroy our once wonderful lives. And, taking place in a safe, upscale family neighborhood in Scottdale, AZ, not in the usual crime-ridden communities.

    It begins with a false allegation – no 911 call, no domestic violence call – with a SWAT team arrest with no arrest warrant, no search warrant, no Miranda Rights and no presumption of innocence or due process, and held NON-bondable! How can this even be allowed? This is policing in an upscale community? How that power escalates? Later, two officers would shoot and kill, 7 unarmed residents, in separate incidents and receive no punishment. No public outcry. Where are we today?

    After the arrest, we moved from our home on the East Coast to Arizona, and I dedicated my time and energy in freeing our innocent daughter, who 11 years later, remains in Perryville Prison. I have diligently researched, studied and learned how this destruction in our lives could happen. I would find this is much bigger than our daughter’s ‘he said, she said” case – one that is the tip of the iceberg of a broken system putting all at risk for harm and destruction and threatening our grandchildren’s future.

    The targets of the criminal justice system are not the violent criminals who wander among us, but the vulnerable, who are “easy” prey and prospects (with assets) for the “conviction-counting-machine” that grows our mass industrial criminal justice and prison industries, while enriching a handful at the expense of the people, their assets, rights and freedom. These sick and demented industries, profit off the backs of human suffering, turning people into commodities for $$$’s. And who are the criminals among us?

    Under the guise of public safety and “saving the children” we’re destroying innocent lives, families and communities. Who and what are driving this? That’s where the answers lie.

    Those who have been in control have created perpetual chaos and fear to build the apparatus that is destroying our society, for their financial and political gain. The established pattern is clear or they would not fight against the people for meaningful reform at the state legislature.

    We’ve trusted the justice system to be fair and equal, to protest us from those who would harm us. When the devious learn how to use it against us and there is no protection from this, we see our true reality. Those in the courtroom know the game, as well. Judge Kozinski clearly spelled it out, as Phil Locke has in this Wrongful Conviction blog, over and over again.

    The larger picture, is that it’s “a war on the people”, their rights and freedom, manifesting itself in many ways that is at a crisis point in our states across America and the federal government.

    When 65,000,000 people in the U.S. have been arrested at some time in their lives, and thrown into our criminal justice system, something is seriously wrong in America, “land of the free” (a myth?).

    Currently, over 7,000,000 adults are on probation, parole, in jail or prison – this does not include juveniles or detention centers – making the U.S. #1 jailer in the world. A shameful statistic. Who and what got us there, when crime has been declining? Who works to criminalize ordinary activities and words, like “touch” = 17 years in prison? Who creates a sub-class group of citizens in America, the sex offender registry that has 3,4,5,6,7,8, and 9 year old children on it? Pre-Hitler era laws in the making, while the politicos create fear mongering for political and financial gain? Where are we today? Walsh is a TV mogul, and the falsely accused innocent people are in prison?

    The staggering number of non-violent people held in prison for decades is shameful. Who sent these people to prison? Why are these draconian laws in place? Who benefits from life time sex offender registry and draconian mandatory minimum sentencing? That’s where the answers lies. It is not about public safety, but all about political and financial gain by those who have lost their values and have no conscience.

    The justice system has been politicized and they have fueled the alarming growth of the mass industrial prison complex. Defacto life sentences are handed out without explanation in the courts or at sentencing, i.e. sex offender registry. Nothing is said about its ramifications and consequences, with the creation of a sub-class group of citizens, who receive a secondary punishment – lifetime sex offender registry. Double jeopardy? Who will be next? Shades of the run-up to Hitler?

    Judge Kozinski has shown what is needed along with Phil Locke’s important points. This is the answer that few in ‘the system’ want to hear or discuss.

    The justice system and its relation to the mass incarceration of our people and destruction of our families and communities, must be addressed as a whole. Who put us on this path? Why? Who benefits? Who are their “easy” prospects and targets? And how are we going to address this for what it is and dismantle it?

    A justice system, that is fair and equal, one that is not politicized and incentivized, is needed to protect the people, our rights and freedom. Without it, our children and grandchildren are doomed. There will be a shameful legacy by those who created this fiasco self-destructing America and turned a blind eye. Those remain silent are complicit in this destruction of lives, one step short of a gun. Where are those with a voice and a conscious, and the integrity to right the wrongs?

  2. Thank you, Phil, for summarizing and linking Judge Kozinski’s powerful article. It would be wonderful if a copy could be sent to every member of every state legislative judiciary committee and the two federal judiciary committees, and other related legislative committees, and full consideration and approval given to every recommendation. If I had known of the article’s 26 proposals and your two, before publishing my book, “80 Proposals to STOP Wrongful Convictions before the End of this Decade” the number would have reached 100, after combining those which overlapped.

  3. Reblogged this on Colder Case and commented:
    Some insight from the trenches.

  4. There is also the touchy subject of ‘victim’ credibility. But that is a subject few want to address; because we don’t want to victimize the victim. But I propose that victims, not unlike anyone else, can have extreme bias and retaliatory motives. Meaning- they’re not all-together honest. I know this first hand. I also know that officers lead ‘victims’ to press charges, without even having been summoned through an emergency call; and little, to no, evidence- simply on the statement of someone who has mental health issues. Some precincts will send out officers when requested- for domestic issues; some will only send out officers when an arrest is requested. Some officers will arrest under certain conditions- with ‘certain’ people; however, not with certain ‘other’ people- under those same conditions. Smacks of prejudicial treatment. And this is not equitable justice. It’s not justice at all- and it needs to stop.

    • Heart of the Matter, Your well-informed comment is spot-on! “Victim’s Rights” in Arizona and a handful of states has taken away our rights to “presumption of innocence” and due process. Also, incentivized to give money to the “victim” and pay their legal fees, plus more. A devious person knows how to use it. This demands outside independent investigation for abuse. Since it’s under control of the prosecutors, investigation is ignored.

  5. After Orange County D.A. kicked off case from jailhouse informants, prosecutors face stricter standards – The Orange County Register 10/7/15

  6. Prosecutors’ decisions have driven growth in U.S. prison population
    “[1] Pfaff (2011). Pfaff has written a series of blog posts outlining the argument. See his posts on prison growth, defining drug crimes (part 1 & part 2), evidence against the war on drugs causing mass incarceration, evidence against war on drugs causing racial composition of prisons, more complicated arguments about drugs and prisons, longer sentences haven’t caused prison population growth (part 1 & part 2), better explanations for growth of prison population, central role of prosecutors in prison growth, and prosecutors have driven prison admissions. Pfaff discusses how the standard story about drug criminalization and imprisonment lacks a sound factual basis, but is nonetheless continually repeated, included in well-regarded publications. He also documents appallingly superficial “expert” discussion of media violence and violent crime. His discussion of allocation of criminal justice authority is provocative. Pfaff’s work, in my judgment, is by far the highest quality empirical work available on the criminal justice system. For Pfaff’s academic-style articles, see his SSRN author page.”

  7. Judge Kozinski is beautiful and eloquent, in that he cuts to the very heart of the issue, and provides solid measures for reform. After reading his paper I was moved to tears as he addressed systematically every point which caused devastation and havoc in every aspect of, not only my world but also, that of my closest friend. It is true that a veil of blindness shrouds the American public from the reality that there is no equality, justice or accountability coming from those whom we faithfully reelect and look too for protection. The depth and breadth of the ruinous aftermath is immeasurable in the lives of those that have found them selves to be fodder in the ticker tape parade put on by a morally and ethically dead judicial system.
    There are so many of us who face daily the disenfranchised stark reality of the grave injustices we and our children suffer for the crime of our naiveté and our trust in the righteousness of those in power. I make it my personal goal to stand before Mr. Kozinski some day in the ninth circuit and to see him correct the wrongs suffered upon my child, myself, my close friend and her sons. We have all suffered in the same county and at the hands of the same judge in three different court rooms and three different cases where due process and sound reasoning were replaced with collusive corruption and greed.

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