Penn Undergraduate Law Journal: You were a prosecutor for the Southern District of New York before you began teaching at Penn. What made you decide to make the shift into academia?
Stephanos Bibas: I had been interested in teaching for some time, but I wanted to get some experience so that I had something worth teaching and writing about. Even just some time in the trenches completely changed my view of the world. What I’d been looking for was something worth saying, and what struck me was the gap between what I learned in law school, which was all about jury trials, and then the real world, in which almost all cases are plea bargained. That disconnect between what the Supreme Court, where I was clerking, was talking about, and where there was a world that was very different, that was 95% plea bargaining, gave me something important to critique about the shape of the law and about how the court and older generations didn’t understand the import of modern sentencing law and sentencing guidelines. That made it very different from the theory that I had learned in law school.
SB: Sure. It’s been about six years since I offered it, I co-taught the class with Professor Vinitsky of Slavic Studies, and we looked at different literary works, Dostoyevsky’s Crime and Punishment and The Brothers Karamazov, Kafka’s The Trial, and Nathaniel Hawthorne’s The Scarlet Letter, and looked at the way novelists have an understanding of blame and a morality of punishment and how different it is from what lawyers know actually goes on. We had a class that was half law students and half undergraduates, which made for a very interesting contrast between the lawyers and the non-lawyers and how they spoke with each other. Of course, the reality is a lot different from what it is in Law and Order.
PULJ: You study how remorse and apology factor into criminal procedures. Does this field of study often bring you into the realm of psychology?
SB: Yes. Issues of psychology, philosophy, and theology actually all intersect. People are looking for criminal justice to do more than just dole out a certain amount of pain. Guilty people feel remorse, and they want to get it off their chests. Sometimes, that’s actually a step in their rehabilitation or reform. Alcoholics Anonymous has a similar Twelve-Step Program where one of the first steps is admitting that you have a problem. There needs to be a connection with the victims who want an apology and need to be able to forgive and let go of their anger. And often, victims and defendants live in the same neighborhood, are co-workers, friends, or even relatives or lovers- and that is a human process of reconciliation that is a part of people getting ready to go back to living in community again. Most criminal defendants are going to be released and go back to their communities and they need more healing and reintegration than our amoral plea-bargaining factory often gives.
PULJ: In your book, The Machinery of Criminal Justice, you argue that over the past two centuries, the quality of legal proceedings have been sacrificed for quantity. What do you think was the biggest cause of this shift to “assembly-line justice?”
SB: It was lawyers taking over the criminal justice system. Until about the year 1800, victims ran most cases for themselves and defendants ran most cases for themselves. The public prosecutors took over in the early nineteenth century and the defense lawyers followed suit and matched wits in the late nineteenth century. These are people who do not care directly about justice for themselves in individual cases. They care more about moving the business, finishing cases, and getting back to other work. That is what has led them to have expertise and the knowledge and the lack of self-interest in just getting cases moved along to a preordained outcome. Lawyers can also be very bottom-line and calculating of cost-benefit and value, but that doesn’t speak to some of the less-quantifiable moral goods people want, like having their day in court and expressing themselves. That gets shut out of a more lawyer-run process.
PULJ: You advocate moving away from the efficient, speedy, assembly-line justice we currently have and back towards emphasizing softer values like reforming defendants and healing victims. But how do you balance that with the Sixth Amendment’s guarantee of a speedy and public trial?
SB: The public trial is actually supposed to be part of that. The public trial is supposed to be speedy and public so that the individuals can tell their stories and potentially reconcile and get some closure. So, I think that is actually more consistent with the public jury trials that the Framers were used to and expected than it is with the hidden, out-of-sight plea bargains that are not public. The point of “speediness” is often so that people can clear their names and get on with their lives, but it is hard to get on with your life if you haven’t gotten some kind of satisfying resolution. So, people have these rights but then we coerce them to give up these rights as opposed to letting them play out in the way that the defendants and the victims often want to. The lawyers tell the parties, “Don’t talk to each other. You might make some admissions!” But speedy and public trials were intended to be so people could tell their stories, clear their names, and publicly get it over with. And, if they were going to be convicted, they would take their punishments, so they could pay their debts, and get back into life. But the public doesn’t see how they are getting punished and thinks that the lawyers are doing an injustice and it’s very difficult for the public to know or understand.
PULJ: We’ve seen this phenomenon of some very public trials; especially, the very racially charged ones like the George Zimmerman/Trayvon Martin case, the Michael Brown case, or the Eric Garner case. Do you think the amount of attention and publicity surrounding these cases is helpful or hurtful to the fairness of the proceedings?
SB: I think some of the problem is that the public doesn’t see ordinary cases. And the media surrounding the few that come to their attention can actually impair the fairness because there is a big difference between doing justice and having a sensationalized media account in the abstract where you hear the worst and the media plays up the gore. If it bleeds, it leads. Doing it as a juror or a witness face-to-face on an individual case, where the stories are a lot more complicated, makes one realize the defendants are not monsters, but much more routine people. The media circus often detracts from the individual people telling their stories and detracts from juries taking them seriously, and the press just kind of sensationalizes away that more intimate human detail and interaction that’s supposed to be going on.
PULJ: President Obama and the Justice Department recently released of 6,000 non-violent offenders at the end of last October, with thousands more soon. Many of these inmates plea-bargained due to the prospect of minimum sentences. Do you feel this policy of mass release of non-violent offenders is ultimately an effective way of handling the overcrowding that often comes as a consequence of plea-bargaining?
SB: Well, there are problems because you would hope there would be some analysis of who’s sorry and who has reformed. It is a problem that many federal drug sentences are way in excess of what they need to be, but it’s kind of a haphazard problem. Also, 6,000 out of the several million people under correctional supervision in America is actually a drop in the bucket at the end of the day. It doesn’t mitigate some of the worst features for some of the people who are overpunished the most, but it also distorts the picture in peoples’ minds, because the majority of people behind bars—just over half of them—are in there for a violent crime. You put violent and property crimes together and it’s over two-thirds. Less than a fifth of people in prison are in there for drug crimes. Many federal prisoners are in for drugs, but most inmates are imprisoned at the state level. Sure, it’s probably unbalanced, but the big question is “How do we make more careful decisions about who is most violent, who is most dangerous, who is most sorry?” The drug laws are broad and ought to be narrowed, but the way these early releases are being done, I’m not yet sure we’re triaging or sorting out people certainly the way we should be doing it going forward. But this might be what we have to do to deal with the backload of the people in the past.
PULJ: You’re the director of the Supreme Court Clinic and have argued five cases before the Supreme Court in the past five years. What do you think the fact that students—Ivy League law students, but still, students—are working on such important cases contributes to the case? What are some of the benefits and some of the downsides of this program?
Bibas: Well, I think [the students] are terribly energetic and creative. It gives us a real boost. These students jump right in. There have been multiple situations where sometimes, a moot court judge asks me a question, and I don’t really know the right answer, and the student spends their weekend researching it and gives it to me. The following Tuesday, Justice Kagan will say, “Hey, what about this or about that,” and I’ll say, “Actually your Honor, according the figures I’ve seen, thirty to fifty-five percent of people in some counties don’t get a counsel,” and she’ll just sit back and smile because she knows you’ve done your homework. The student in the back is saying, “He said what I told him to! He said what I told him to! Straight to the Justice!” We test out various reasoning or ideas, and students help us figure out what works best. I think it is a tremendously exciting thing, seeing as most lawyers never get to have a seat in front of the Supreme Court, so these lawyers getting to sit in at the beginning of their careers is really something. It’s really an eye opening and life changing experience. A lot of them go onto great clerkships—for Federal Court Judges and even for the US Supreme Court. Several also work at the highest levels of the Department of Justice, and the office of the Solicitor General, the office that argues for the US position in front of the Court, and it’s great for them and it’s great for us. It’s great for the clients who couldn’t afford the thousands of dollars in legal fees, the bankruptcy debtors, or the immigrants, or the discrimination plaintiffs, or others who just can’t afford that kind of money.
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