This summer, Chief Judge Alex Kozinski of the U.S. Ninth Circuit Court of Appeals received national attention for a new article he wrote entitled “Criminal Law 2.0,” that was published in the
Georgetown Law Journal
. In the piece, he outlines reasons why the country’s criminal justice system needs speedy and comprehensive reform. On Friday, at a talk hosted by the Innocence Project and the Jacob Burns Center for Ethics in the Practice of Law at Cardozo Law School, Judge Kozinski
spoke about his article and his recommendations for improving the system. The discussion was led by Barry Scheck, co-founder and co-director of the Innocence Project. These are some of the highlights:
Judge Kozinski explained his purpose for writing “Criminal Law 2.0”
: “These are things we in America need to be talking about . . . because the stakes are extremely high. . . . I went to law school 40 years ago and came out of law school with the common belief that we have one of the best criminal justice systems in the world—that we have a system that is mostly right; that if it makes mistakes, it errs on the side of letting guilty people go free; that the imprisonment of innocent people is a virtually unheard of event; and that fundamentally we have a modern, well-oiled, efficient and effective criminal justice system. Over the years I’ve come to believe that that is not true.”
Judge Kozinski expanded on why his faith in the American criminal justice system has been challenged in recent years
: “We think of ourselves as being a Western democracy just like many other democracies, except better. . . . We are freer; we are in many ways more likely to err on the side of freedom. [But] if you look at the world-wide statistics on imprisonment, it tells a vastly different story. We have five percent of the world’s population; we have 25 percent of the world’s prison population. One out of every fourth person in prison is in the United States. The next [country] in line is China . . .with about 20 percent of the world’s population and 16 percent of the world’s prison [population].
Barry Scheck asked the judge to discuss the issue of prosecutorial misconduct in the United States—which the judge has previously said is an “epidemic” that only judges can stop—and whether the problem has become increasingly worse in the past 30 years. Kozinski replied
: “My guess is that it’s always been with us, but recently we’re becoming more aware of it. . . . Let me just start by saying that my experience is that most prosecutors are straight and fair and honest. . . . But, it doesn’t take very many prosecutors who act badly to do a lot of damage. . . . If a prosecutor wants to hide evidence, it’s very likely that their bad behavior will never be brought to light.”
The judge concluded that, sadly,
“few judges have the initiative or gumption to investigate prosecutorial misconduct,”
but he does believe that
“things are changing, slowly, but [they] are changing.”
- The judge offered that if there’s any “saving grace” involved in prosecutorial misconduct cases and other profound miscarriages of justice, it’s that they often lead to significant criminal justice reform.
You can read Judge Kozinski’s eye-opening paper