Bibas argues that our system undervalues positive emotions and distorts negative ones. The positive emotions that are undervalued are remorse, apology, and forgiveness. The negative ones that are distorted are the retributive emotions.
One of the major contributors to undervaluing positive emotions is the guilty plea system. That system permits guilty defendants in denial to avoid confronting their wrongs.
....Bibas argues, as is addressed further below, that it is elite control of a system shrouded in secrecy that leaves the public and victims factually and emotionally ill-informed. The public and victims wrongly believe that judges are unduly lenient and punishments too easy. Moreover, not faced with the details of a defendant’s life, the burden of judgment, the face-to-face opportunity to see apologies made, the public relies on gut reactions demanding harsh treatment.
....Moreover, insists Bibas, negative emotions serve important purposes. Righteous public indignation at wrongs done reaffirms moral norms essential to communal solidarity. The expression of this indignation is the only way for the community convincingly to express its concern for the victim’s plight and respect for her value. Retributive anger is essential to the message of communal disapproval aimed as well at the offender.
....Lawyers and other elites, says Bibas, now entirely control the system when laypeople deserve a far greater role. Moreover, lawyers act in effective secrecy, checked neither by an informed public nor even informed victims and defendants. Largely unaccountable for their actions, they operate the system in a way that serves their needs rather than those of lay participants and the community. Moreover, working together daily, underfunded and overworked, and being jaded by what for them is familiar and routine, lawyers’ incentives and training are for efficiency over morality. Accordingly, more often than not, defense counsel and prosecutors collaborate to reach efficient results rather than being true adversaries checking and balancing each others’ abuses. Justice, rather than being individualized, becomes quantified in the hands of the experts.
....Although victims’ rights legislation may in theory require them to receive notice and have an opportunity to participate, these mandates are often honored in the breach. When they are followed, they frequently smack of empty ritual. Plea bargains proceed to which they were no party, and prosecutors spend but little time, if any, hearing the victims’ tale and helping them to reach informed views. They may make brief statements to the court at sentencing, but they are largely passive observers.
....The flip side of lawyer control is lay exclusion. But, as discussed above, that fosters perverse political incentives. Politicians are able to seek harsh, inflexible sentencing options that divorce justice from mercy. Prosecutors have no reminders of what it really means to “do justice,” again allowing efficiency to simulate moral balance, severity to replace communal reintegration. Defense lawyers, seeking just to get by in hard circumstances, become complicit, helping grease the wheels of the injustice machine while creating the illusion of fairness. Equally importantly, however, all professional organizations are hierarchical.
....Voters vividly imagine predators rather than ordinary wrongdoers in a particular case, and their imaginations lead them astray. Sound bites and stereotypes can play on voters’ fears, leading them to push for legislation and referenda. But the calculus changes when jurors look at flesh and blood victims and defendants up close. Good lawyers can humanize their clients so that jurors and others see a real person rather than a racial stereotype. Racial biases appear to be much less powerful when one gets to know people as individuals rather than simply as members of a race.
....Bibas concedes that many of his reforms may be impractical in the short run. He thus recommends modest, gradual change. Here I do not comment on the practicality of his recommendations or the wisdom of each of them. But Bibas’s effort wisely recognizes the continuing power of a central biblical lesson: “Without vision, the people perish.”