The Machinery of Criminal Justice

Paperback | February 26, 2015

byStephanos Bibas

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Two centuries ago, American criminal justice was run primarily by laymen. Jury trials passed moral judgment on crimes, vindicated victims and innocent defendants, and denounced the guilty. But since then, lawyers have gradually taken over the process, silencing victims and defendants and, inmany cases, substituting plea bargaining for the voice of the jury. The public sees little of how this assembly-line justice works, and victims and defendants have largely lost their day in court. As a result, victims rarely hear defendants express remorse and apologize, and defendants rarelyreceive forgiveness. This lawyerized machinery has purchased efficient, speedy processing of many cases at the price of sacrificing softer values, such as reforming defendants and healing wounded victims and relationships. In other words, the U.S. legal system has bought quantity at the price ofquality, without recognizing either the trade-off or the great gulf separating lawyers' and laymen's incentives, values, and powers.In The Machinery of Criminal Justice, author Stephanos Bibas surveys the developments over the last two centuries, considers what we have lost in our quest for efficient punishment, and suggests ways to include victims, defendants, and the public once again. Ideas range from requiring convicts towork or serve in the military, to moving power from prosecutors to restorative sentencing juries. Bibas argues that doing so might cost more, but it would better serve criminal procedure's interests in denouncing crime, vindicating victims, reforming wrongdoers, and healing the relationships torn bycrime.

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Two centuries ago, American criminal justice was run primarily by laymen. Jury trials passed moral judgment on crimes, vindicated victims and innocent defendants, and denounced the guilty. But since then, lawyers have gradually taken over the process, silencing victims and defendants and, inmany cases, substituting plea bargaining for ...

Stephanos Bibas is a professor at the University of Pennsylvania Law School, where he specializes in criminal procedure. As director of Penn's Supreme Court Clinic, he also litigates a wide array of cases before the Supreme Court of the United States. After graduating from Yale Law School and clerking at the Supreme Court, he worked ...

other books by Stephanos Bibas

Format:PaperbackDimensions:320 pages, 9.09 × 6.1 × 0.71 inPublished:February 26, 2015Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:019023928X

ISBN - 13:9780190239282

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Table of Contents

Author BiographyAcknowledgementsIntroduction: The Divergence of Theory, Reality, and MoralityOverview of the BookThemes of the Book1. The Long Drift from Morality Play to Assembly LineA. Criminal Justice in the Early American Colonies1. Small-Town Morality2. Lay Justice3. Room for Mercy4. Reintegrative PunishmentB. Criminal Justice Since the American Revolution1. The Changing Aims of Criminal Justice2. Professionalization3. The Birth of Plea Bargaining4. The Hiding of Punishment Behind Prison Walls5. The Decline of Mercy2. Opaque, Unresponsive Criminal JusticeA. The Players1. Dominant Insiders, Savvy and Self-Interested2. Excluded Outsiders, Yearning for JusticeB. The Play of the Game1. Round One: Insiders' Procedural Discretion Shapes the Rules in Action2. Round Two: Outsiders Try to Check Insiders3. Round Three: Insiders' Procedural Discretion Undercuts Reforms4. Round Four: Outsiders, Egged on by Politicians, Take Matters into Their Own Hands5. Round Five: Insiders Circumvent Even "Mandatory" ReformsC. Costs of the Game1. Clouding the Criminal Law's Substantive Message and Effectiveness2. Undermining Legitimacy and Trust3. Hindering Public Monitoring and PreferencesD. Defense Lawyers and Defendants' Distrust1. Insider Defense Counsel's Interests and Pressures2. Defendants' Overoptimism and Risk-Taking3. Miscommunication, Mistrust, and Timing3. Denial, Remorse, Apology, and ForgivenessA. Denial and Equivocation1. The Use of Pleas by Defendants in Denial2. The Danger of Convicting the Innocent3. The Costs of False Denial and the Value of Confession4. The Value of Trials as Morality PlaysB. Remorse, Apology, and Forgiveness1. The Irrelevance of Remorse and Apology in Contemporary Criminal Justice2. Crime as a Relational Concept3. Lessons from Noncriminal Contexts: Civil Mediation4. Whose Voices Belong in Criminal Justice?A. The State's Monopoly on Criminal JusticeB. Incomplete Alternatives to the State's Assembly Line1. Victims' Rights2. Restorative Justice3. Therapeutic Jurisprudence and Problem-Solving Courts5. Popular Moral Discourse Versus Assembly-Line EfficiencyA. Efficiency Instead of Moral JudgmentB. Why Not Address Substantive Moral Goals?6. Returning Power to the Public in a Lawyer-Driven SystemA. Macro-Level Reforms1. From Idle Imprisonment to Work, Accountability, and Reform2. Collateral Consequences and ReentryB. Mid-Level Reforms to Include the Public1. Greater Transparency2. Increasing Public ParticipationC. Micro-Level Solutions1. Victim Information and Consultation2. Defendants' Information and Participation3. Restorative Sentencing Juries

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"His vision is a powerful one, he defends it with clarity and grace, and every idea he expresses is capable of starting an important conversation." --Andrew Taslitz, Jotwell