Vanderbilt Law Review

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The American criminal justice system is on trial. A chorus of commentators-often but not exclusively in the legal academy-has leveled a sharp indictment of criminal process in our country. The indictment charges that large flaws infect nearly every stage of the adjudicatory process. And the prescriptions are equally far-reaching, with calls for abolition of many current practices and an overhaul of the entire system. What is more, the critics issue their condemnations essentially as givens, often claiming that all reasonable people could not help but agree that fair treatment of the accused has been fatally compromised. For these critics, "We live in a time of sharply decreasing faith in the criminal justice system."'

As a judge with faith in that system, I am dismayed by the relentless insistence that we have it all wrong. Of course the system, like all human institutions, has its share of flaws. But the attacks have overshadowed what is good about the system and crowded out more measured calls for reform. The critics claim that major aspects of American criminal justice work to the detriment of defendants, when actually the reverse is often true. It is time for a more balanced view of our criminal process, which in fact gets a lot of things right.

A brief word as to the scope of this Essay. I have focused mainly on the adjudicatory process and on the criminal trial. I have not sought to explore police investigatory procedure on the one hand, or issues of detention and incarceration on the other, except insofar as they bear on the adjudicatory process in some way. They are vast topics in themselves, and the terrain I have covered is large enough. My own reaction to the critics is one of gratitude for their contributions but dismay that they have allowed the pursuit of perfection in criminal justice to become the enemy of the good. Much about American criminal justice is indeed good. The system provides considerable protections for the accused and sets proper limits on the brutality and deceit that human beings can inflict upon each other. Simply put, in calling for an overhaul of our criminal law and procedure, the critics have failed to appreciate the careful balance our criminal justice system strikes between competing rights and values. They have failed to respect the benefits of the system's front-end features-namely, early process and early resolution. Moreover, they have sold short the democratic virtues of our system. The sensible tradeoffs reflected in American criminal justice are worthy of respect, and the system's democratic tilt is deserving of praise. The critics have extended neither. Ultimately, the often harsh tone of their indictment has done an injustice to the system of criminal justice itself.

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Criminal Law Commons