Here is John Pfaff's review of Preet Bharara’s new book, Doing Justice for The Washington Monthly: The broad agreement that our criminal justice system
is profoundly broken, most recently embodied in a reform bill passed by
Congress in December, is a rare contemporary example of genuine bipartisanship.
We incarcerate and punish far too many people; we rely on counterproductively
punitive sanctions that are often disliked by the very victims in whose name
they are imposed; and the system is rife with racial bias at every stage.
Thanks to years of work by advocates, academics, and journalists, a broad coalition
is now pushing to overhaul how we punish in the U.S.
You would not know any of this, however, from
reading Preet Bharara’s new book, Doing Justice. Bharara was appointed by
President Obama in 2009 as the U.S. attorney for the Southern District of New
York, perhaps the most prestigious posting a federal prosecutor can get.
Although criticized by some for, among other things, not prosecuting the financial
fraud underlying the 2008 financial crisis, Bharara aggressively targeted the
deep rot of corruption in Albany, convicting both the Democratic head of the
assembly and the Republican head of the senate. He was broadly respected by the
time President Trump fired him in March 2017. In fact, his abrupt termination,
and speculation as to its causes, made him something of a hero to the
#Resistance.
In Doing Justice, Bharara explores the criminal
justice system by looking at how cases work their way through it, from
investigation to trial to punishment. Nearly all the examples and anecdotes
come from cases that Bharara’s office handled, which often gives the book the
feel of a memoir. But it is clearly intended to be a broad discussion of
criminal justice—not just of the rarified world of the federal courts, but of
the far messier state systems that handle well over 90 percent of all cases.
The closest thing the book has to a thesis comes
toward its end, when Bharara describes the process as “an inquiry fairly
conducted, an accusation rightly made, a judgment properly rendered.” This is a
stunningly sunny take on our criminal justice system, optimistic to the point
of being dangerously misleading. It’s a shame, because Bharara’s insider status
would give any criticisms significant heft. Yet not only does he celebrate the
current system, he does so without even confronting any of the major criticisms
that have been leveled against it. (The major exception is when he addresses
the brutality of American prisons.) He offers what is effectively a paean to a
slow, deliberative process, divorced from political pressures, that focuses
almost exclusively on pursuing the truth, wherever that may lead. It is a
laudable system, well worth defending. But it is also one that does not
actually exist.
Bharara begins at the beginning, with investigation.
“How fraught every decision is along the way to an arrest,” he writes. Yet at
the peak of stop-and-frisk in New York City, the New York Police Department
stopped about 80 percent of young black men in the city every year. There was
nothing deliberative about it; it was impersonal on a massive scale. And the
NYPD was not alone in adopting these sorts of tactics. When he turns to trials,
Bharara paints a similarly overly optimistic picture. This is the moment for
“judges, defense lawyers, jurors,” he writes. “There is judicial and public
scrutiny.” He says this without once noting that during his time as U.S.
attorney, 90 to 95 percent of all federal cases were resolved by plea bargain,
without trial. The jury barely exists in either the federal or the state
systems; almost all cases are resolved far from any sort of public scrutiny.
To be fair, Bharara acknowledges that the system is
imperfect. But he explicitly rejects the possibility that the problems are at
all systemic, arguing instead that the errors that occur are essentially the
product of a few bad apples. “False allegations, wrongful convictions,
excessive punishments, miscarriages of justice are often wholly the result of human
failings, not flaws in the impersonal machinery of justice,” he writes. The
idea that failings are individual, not structural, is a theme that
permeates Doing Justice.
This runs contrary to all available data. Police
violence is a direct product of how officers are trained to use force and the
incredibly permissive legal doctrines that insulate them from liability. Judges
become noticeably harsher as elections draw near, and prosecutors, judges, and
parole boards all feel pressure to look tough on crime. County-funded
prosecutors face no restrictions on how many people they can send to
state-funded prisons. I could go on; many books have been written about these
structural problems (including by me). Yet with only a few passing exceptions,
Bharara addresses none of them.
In fact, not only does Doing Justice ignore
these issues, it exemplifies and even celebrates the exact kind of thinking
that underlies them. Take the incentive to over-punish, which is so well known
that it has a name: the Willie Horton effect. Horton was a black man serving a
life sentence in Massachusetts for murder who committed two serious violent
crimes while out on a weekend furlough program. George H. W. Bush infamously
used the case as a racial dog whistle to attack his 1988 Democratic opponent,
Massachusetts Governor Michael Dukakis. The high-profile episode ultimately led
to more than forty states abolishing prison-leave programs, even though the
program from which Horton escaped had a success rate of over 99 percent. This
effect encourages everyone from the police to the parole board to err on the
side of longer and harsher punishment, even as data consistently shows that
such severity is ineffective and harmful to the very communities most often
victimized by crime.
Not only does Bharara avoid any discussion of how
the Horton effect distorts justice, he actually devotes an entire chapter,
titled “God Forbid,” to praising this sort of reasoning. “Law enforcement
people are trained to hear that ‘God forbid’ voice,” he writes: “God forbid
this person does something.” He then recounts his office’s prosecution of the
Newburgh Four, four black Muslim men induced by an undercover FBI informant to
plan acts of terror in New York. The informant offered the four men up to
$250,000, along with a car and vacations, to carry out a series of attacks near
New York City. All of the men were very poor, and one of them seemed quite
mentally ill (he stored jars of urine in his house and thought Florida was a
foreign country). None of them appeared to be radicalized prior to meeting the
informant.
Even the judge in the case said that she strongly
believed the plot existed only because “the government instigated it, planned
it, and brought it to fruition.” But Bharara defends the prosecution. “When the
possibility of harm is afoot, prosecutors are aggressive,” he writes. “Who
knows which threats are real and which are puffery?” And so four men are now
spending twenty-five years in prison, because, in Bharara’s eyes, “you don’t
want to take any chances.” But what about the chance he did take? Why isn’t the
risk of needlessly destroying someone’s life also subject to that “God forbid”
voice?
Over and over, Doing Justice perpetuates
the problem at the heart of our criminal justice system: the dehumanization of
the people subjected to it. With only a few exceptions, including a welcome
chapter devoted to lambasting Rikers Island, the New York City jail, for its
infamous cruelty, Bharara ignores the complicated lives of those who come into
contact with the system. Far more typical is when Bharara reduces defendants to
one-dimensional
“bad guys” squaring off against the “good guys” in his office. In a chapter on
“snitches,” for example, he notes the emotional nature of working closely with
an informant: “You may realize that he is more than the crimes he has
committed, just as every person is more than the worst thing he or she has ever
done.” This sounds promising. But then he continues: “This is the point of
maximal danger.” Danger. Acknowledging the humanity of people facing
criminal charges is, apparently, a weakness. This is disturbing.
Prosecutors have played a central role in driving mass incarceration, but they
also have the power and discretion to reverse it. That even a “liberal”
prosecutor like Bharara views empathy as a weakness to guard against, rather
than an essential component of doing justice, indicates just how challenging it
will be to get the profession to change.
Few if any books over the past decade have sought to
defend the criminal justice status quo with any real rigor. It is possible
that such a defense exists—although I am personally hard pressed to imagine
what it would look like—but Doing Justice is not it. Real, meaningful
reform will require law enforcement officials from the beat cop to the
nationally renowned prosecutor to honestly confront the system’s defects and
work to make things better. Until then, whatever the criminal justice system is
doing, far too rarely can we say that it is doing justice.
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