Closing Courts to the People

"If you gaze long enough into the abyss, the abyss will gaze back into you." I think about this line of Friedrich Nietszche's more often than I care to admit. The practice of law hasn't mellowed me; if anything, it's made me more cynical, perhaps too cynical. The sad fact is that I no longer believe the courts administer anything like justice.

So it was with a sense of relief, even kinship, that I started reading through the summer 2014 edition of Daedalus, the quarterly publication of the American Academy of Arts and Sciences. The issue bears a thematic title: The Invention of Courts.

I was at first put off when reading the introductory essay by Linda Greenhouse, a member of the academy and former Supreme Court reporter for The New York Times, who, in retirement, now teaches at the Yale Law School. She promised a collection of essays from judges and academics. Not a practicing lawyer among the contributors. Practice conceived isn't theory relieved, I muttered.

Judith Resnik's essay on courts as democratic institutions won me over. Vanishing trials, a managerial judiciary, the rise of alternative dispute resolution, ubiquitous plea bargaining—all are contributing to a marginalization of trial as a public and transparent source of public meaning.

"Courts," she concludes, "are one way to link individuals, entities, groups, and government in a common quest for the much-contested content of justice. The diminution of opportunities to use open courts impoverishes the status of individuals and the effectiveness of government."

Amen, I wanted to say.

Trial is a legitimizing exercise, giving ordinary people serving as jurors the right and power to decide what justice requires in a given context. Yet the judiciary seems to fear jurors. We're told trial is wasteful. Juries must be kept from knowing too much of the truth about the parties appearing before them. And, above all, jurors must not be permitted to depart from the law's script—hence, the terror over the prospect of jury nullification.

Do we sell ourselves short by scorning juries?

In the period ending March 31, 2013, there were 86,095 criminal defendants in the federal courts nationwide; 83,614 of them pleaded guilty, according to Federal Judicial Caseload Statistics. In other words, more than 97 percent of federal criminal cases ended with pleas of guilty.

The prosecutorial view of this statistic is that it proves the system works. The innocent aren't being prosecuted. Why look! Look at all the guilty pleas! Prosecutors are making the world safe for ordinary people, right?

I doubt it. Federal criminal courts look more like slave auction houses than courtrooms. Attend a federal sentencing hearing sometime and listen to the ridiculous haggling over sentencing guidelines. Judges behave like algebraic idiot savants seeking to compress human behavior into simple equations. The public can attend these hearings, to be sure, but the gibberish that passes for justice is meaningless to all but the participants.

Resnick's essay cites Jeremy Bentham, the great 19th-century utilitarian and judicial reformer. Publicity transforms meaningless rites into enforceable rights, with the public capable and able to pass judgment over judges who, during trial, would themselves be "on trial," Bentham wrote.

Vanishing trials yield a diminished sense of legitimacy.

Find yourself a copy of the recent issue of Daedalus, but don't ask me for mine. I'm working my way through the essays, making a list of books and articles to read. The courts are sick unto death. Perhaps lawyers can help save them.




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