The criminal justice system works very differently in practice than it is supposed to work in theory, and that is both its fatal flaw and its saving grace.
Jim Bond '64
Related Articles in this Issue
U.S. Court of Appeals Judge Calls Guidelines "Political Sentencing."
Mike McCarty '90: Breaking the Cycle of Violence
Cleo Washington '85: Fighting "Vindictive Justice"
Todd Shellenbarger '87: Witness for the Prosecution?
A Judge's Defining Moment—Steve Heimann '77
Magazine
Winter 1999
Law & Order in America:
"Remarkable Progress" or the Calm Before the Storm
A System's Fatal Flaw
by Jim Bond '64
I've always insisted that we can have as little or as much crime as we want, depending on what we make a crime; and in my judgment we make far too much conduct criminal. The criminal law is too blunt and too costly an instrument by which to deter all but the most dangerous antisocial behavior.
The criminal justice system works very differently in practice than it is supposed to work in theory, and that is both its fatal flaw and its saving grace. In theory we have a system that is supposed to operate on the assumption that the defendant is innocent until proven guilty; and—once again, in theory—the system is supposed to have so many procedural checks that only the guilty will be convicted. Neither supposition is true in practice. Most of the "players" in the system (including defense counsel) operate on the assumption that the defendant is guilty, and some of you have pointed out cases in your own experience where the innocent have been convicted and the guilty have gone free.
The latter reality is an unfortunate if not fatal flaw. The system nevertheless works reasonably well because in practice the "players" are generally competent and honest. Indeed, what impressed me most while moderating this Wabash Magazine online forum was the insight and concern of the participants about how they should do their jobs. I think that the citizenry would have a lot more confidence in the effectiveness of the criminal justice system if they knew that persons like these Wabash men were in charge of making it work