Criminal Justice System Flaws

No one reasonably acquainted with the facts would conclude that the criminal justice system produce perfect karmic justice, convicting and punishing everyone who commits a crime worth punishing, while wrongfully convicting no one, and violating no one's civil rights. Indeed, no humanly created criminal justice system ever will, and even if could, it would be far too costly a goal to justify the benefit of achieving it.

This doesn't mean that we shouldn't evaluate quantitatively, as best we can, the extent to which the status quo deviates from this ideal, subject, of course to uncertainties like any other scientific measurement. This post considers various metrics of the criminal justice system's flaws that can be considered that are better or less well documented from area to area. 

Generally, however, the criminal justice system is well examined academically compared to many other areas of the law, although there are definitely gaps out there too. This post is intended as an overview and reference point for where future inquiry might be necessary and a reminder of areas where what we already know may suggest reforms. It is also intended to help sort of the possible areas of reform with an eye towards assisting in prioritizing the different possible reform areas based upon the magnitude of the problems and the tools available to address them. 

Some are frequently voiced as concerns of conservatives (e.g. failure to hold blue collar criminals accountable), others are more frequently voiced as concerns of liberals (e.g. fair treatment of minorities in the criminal justice system and wrongful convictions). 

Others aren't on the political radar screen of either major political party even though they are systemic and important (e.g. remedies for people who are charged with crimes, incarcerated prior to trial, have their lives ruined and their fortunes spent on private criminal defense lawyers, and then are acquitted).

Wrongful Convictions

We can, for example, make reasonable estimates of the number of people who are wrongfully convicted. 

Wrongful Convictions At Trial

In the State of Colorado, for example, the number of people wrongfully convicted and currently incarcerated following trials and the appellate process is on the order of 200 (about 10% of felonies that go to trial), often facing exceptionally long sentences because these innocent defendants refused to plea bargain and face the long sentences attached even with a plea bargain to lesser charges for very serious offenses. 

Wrongful Guilty Pleas

Something on the order of another 200 people (about 1% of felonies resolved by guilty pleas) are wrongfully convicted and currently in prison, but usually facing more lenient than usual sentences for the crimes for which they were originally accused (because the weakness of the guilt-innocence case usually produces favorable plea bargains, and because wrongfully pleading guilty to a lesser charge is a more tolerable choice when the sentence isn't too severe). The percentage of innocent people who plead guilty is lower than the percentage of wrongful convictions at trial, however, because empirically, innocent people are far more likely to go to trial rather than plea guilty than innocent people. 

Of course, a large share of people who plead guilty to felonies 40%-60% (perhaps 8,000-12,000) are pleading guilty to significantly lesser charges than the most serious offenses that they actually committed in the criminal episode for which the were charged and are currently in prison, while a fairly modest minority, probably more than 1%, but less than 5% (200-1000 in Colorado) plead guilty to an offense more serious than the most appropriate charge for their conduct.

It is also possible with a bit of effort to identify cases where the risk of wrongful convictions at trial and plea bargains by innocent people are elevated and reduced.

Wrongful Convictions Of Lesser Charges

There are, of course, wrongful convictions at trial and wrongful plea bargains to misdemeanors and lesser charges, and the literature on the accuracy of the criminal justice system in this area is much less carefully studied. 

But, given that about half of people incarcerated at any given time are awaiting trial (mostly, but not exclusively, for felonies), that many lesser offenses are almost always sanctioned with fines and/or probation and/or community service, rather than jail time, that minor offenses have lower maximum sentences, and that most minor offenses punishable by incarceration result in post-conviction jail sentences far shorter than the maximum allowed by law, the number of people wrongfully convicted of sub-felony offenses and currently incarcerated for those charges post-conviction at any one time is much smaller. 

Also, the collateral consequences of a sub-felony charge apart from the sentence imposed in a particular case are typically far less severe than those in a felony case, so the harm from a wrongful conviction of a such a charge is usually far more modest. 

This is despite the fact that the number of sub-felony charges is vastly greater than the number of felony charges brought.

Wrongful Acquittals, Wrongful Pre-Trial Dismissals, And Known Dismissals Of Guilty Defendants

It is also possible to estimate with tolerable uncertainty the number of people who are charge with a crime of which they a guilty who are wrongfully acquitted at trial, which is about 5%-10% of the cases that go to trial each year.

There is far less of a literature on the risk factors that give rise to wrongful acquittals than those that are associated with wrongful convictions, although race and socio-economic status and an ability to afford private defense counsel are often suggested. Likewise, crimes involving strangers and rapes with known offenders who don't deny having had sex with the victim are probably fairly high on the list.

It is harder to estimate the number of cases where people are charged even though the charges are dismissed prior to trial, or arrested but not charged, not because the prosecutor or law enforcement or a victim believes the defendant is guilty but is showing mercy, but because the prosecutor or law enforcement can't comfortably be sure that the prosecutor will prove the case beyond a reasonable doubt at trial. The one exception to this is the subset of cases where a dismissal follows an unfavorable court ruling following a hearing to suppress key evidence that was unlawfully obtained, which involve a guilty person who is spared criminal punishment in the vast majority of such cases, a number that can be reasonably estimated with some precision.

Wrongful Pre-Trial Incarceration And Criminal Charge Defense Costs

One confounding factor, especially for sub-felony offenses and minor felonies, is that a significant share of people who are arrested are incarcerated for some or all of the time prior to their trial, and then either plead guilty to time served which an acquittal at trial can't remedy, or receive a sentence following a conviction which is mostly time served (sometimes following a trial and sometimes following a plea bargain).

People who have been detained prior to trial who plead guilty in exchange for a time served sentence, or a sentence mostly served prior to conviction, make up a particularly large share of wrongful guilty pleas. But, in fairness, even criminal defendants who ultimately plead guilty to lesser offenses and then are sentenced to time served or to only a short remaining sentence (surely at least 80%-90%) are still predominantly guilty as charged, although determining the exact percentage can be challenging.

For example, a great many individuals who are arrested, incarcerated prior to trial and then sentenced to time served or a short additional sentence, are caught red handed by police or on surveillance video while in the act of soliciting prostitution or soliciting a prostitute, selling a small amount of drugs, selling alcohol or tobacco to a minor, trespassing, shoplifting, engaging in porch piracy, committing an aggravated traffic offense, stealing a bicycle, joy riding a stolen vehicle, disturbing the peace, spray painting graffiti, or assaulting someone without a deadly weapon and without causing serious physical injury. The evidence of guilt is unmistakably clear in the lion's share of people arrested and incarcerated in the first place for such minor offenses.

Judges typically have particularly great discretion to impose much longer than typical sentences when sentencing a defendant for minor offenses, so pleading guilty in exchange for time served, cost costs, and often a fine, is often merciful for the offender, cheap for the criminal justice system, and just. 

Offenders who are guilty against whom minor charges are voluntarily dismissed by the prosecution without forcing the person arrested to plead guilty, often more affluent defendants with private criminal defense counsel and few or no prior criminal convictions, are similarly situated but even better off because they are spared a conviction on their permanent criminal record. This is particularly valuable for people with few or no prior adult criminal convictions, since an adult criminal record, especially if it is recent, still has some collateral consequences.

Still, people who are detained prior to trial who are acquitted at trial, or for whom the charges are ultimately dismissed prior to trial, in the federal system and all but a tiny number of U.S. states, receive no compensation for the time that they were incarcerated while presumed innocent except in a tiny percentage of cases where flagrant civil rights violations by law enforcement or while incarcerated are proved in a separate civil case. They also almost never receive compensation for the costs they incurred to hire private criminal defense counsel, if any, unless they are corporate executives charged with white collar crimes who are indemnified by their employers.

This is a serious injustice to criminal defendants who are detained for a long time prior to trial who are innocent, and either are acquitted at trial or ultimately have their charges dismissed. The right to a speedy trial mitigates the worst harms in these cases, but it is still incomplete. 

Even a week or a month of pre-trial incarceration is often enough to result in the loss of a job, loss of income resulting in evictions or harm to one's credit rating, impairment of an ability to get a new job, negative outcomes in child custody matters, intangible harm to the well-being of one's children, damaged family and romantic relationships, and harm to one's long term reputation from the arrest despite the absence of a conviction.

This burden is overwhelmingly concentrated on wrongfully arrested and charged innocent people who are too poor to post a cash bond to allow them to be released prior to trial. There is also very strong evidence that the lion's share of people incarcerated prior to trial for a failure to post a cash bond (perhaps 80%-90%) pose no serious risk to the public while not incarcerated and awaiting trial.

An upper bound on the number of people who experience wrongful pretrial incarceration, or who incur private criminal defense attorney expenses and are subsequently acquitted or have their charges dismissed is fairly easy to establish with considerable accuracy. One can reduce that figure by a factor of something between 80%-95% or so, to get a reasonable estimate of the number of people who are wrongfully punished based upon mere probable cause when they are actually innocent, prior to trial.

Wrongful Stops and Arrests

The law allows law enforcement to stop someone in a brief "Terry stop" based upon a mere reasonable suspicion that they are engaged in some improper conduct. The harm in any individual case from a wrongful stop of someone who is innocent of any wrongdoing is modest: a few minutes to perhaps ten minutes of time, a certain amount of emotional distress and fear, and perhaps showing up late for one's next appointment. There is no official record of these stops in most cases that don't result in a citation of some kind, so there are also rarely significant collateral consequences from them, although a suspicionless Terry stop can unfairly expose the person stopped to criminal justice consequences for offenses (often minor ones like marijuana possession or underaged drinking) that are usually overlooked. In the individual case, this exercise of discretion towards someone who is actually guilty of a minor offense isn't really unjust, but it is still something of a gray area harm because collectively and over time a pattern of discriminatory Terry stops influences how severely someone is punished relative to their absolute level of criminality compared to other similarly situated people who don't face discriminatory enforcement. 

The main harm associated with wrongful Terry stops in a karmic justice sense is that they are typically conducted in a discriminatory manner and efforts to estimate statistically the number of wrongful Terry stops (and wrongful arrests) on racial grounds can provide some quantification of the number of these lesser injustices.

Arrests of innocent people, either with or without probable cause, that don't give rise to pre-trial incarceration (either because the defendant posts bonds, or no charges are ultimately pressed) or to charges resulting in criminal convictions are studied mostly in the context of efforts to quantify racially and ethnically discriminatory law enforcement practices. An upper bound on wrongful arrests is easier to quantify because arrests are generally well documented and can be compared to charging information and conviction information. As noted above, probably 80%-95% of arrests are of people who are obviously guilty and caught red handed, whether there is a formal conviction or not, especially arrests resulting in formal criminal charges being lodged or pre-trial incarceration.

Arrests, because they are longer, may cause someone to have to incur the costs associated with posting bond (which are often 10% of the posted bond if one doesn't have sufficient cash on hand to post it all without a bail bondsman) and possibly private criminal defense costs, neither of which can be recouped in most cases, are more serious. Bail bond fees amount to an unappealable, law enforcement imposed fine on poor people. 

Also, the record of an arrest, even if no charges are brought, charges are dismissed, or the person arrested is acquitted at trial, can have significant collateral consequences for future employment, in any pursuit for which there are background checks, and in law enforcement and prosecution attitudes when future criminal charges are considered (even though judges and juries aren't supposed to consider them in trials or in probable cause hearings).

Arrests are very numerous and as with Terry stops, there is strong evidence that they are carried out in a racially and ethnically discriminatory manner, even adjusting for different per capita levels of crime commission that justifies arrests and Terry stops by age, gender, race, ethnicity, and geographic context.

A young black man in a ghetto who is dressed in an anti-authority manner who talks and behaves like a typical man in that demographic out late at night in that neighborhood, who may even have a minor juvenile or adult criminal record or to have received some non-legal system disciplinary punishments at school, is indeed much more likely to have committed a crime than an elderly white woman in an upper middle class suburb who talks and behaves like a typical woman in that demographic in that neighborhood. But his is also vastly more likely to be wrongfully stopped or arrested to a degree disproportionate to the elevated likelihood he has currently committed a crime.

Still, while it can be quantified wrongful stops and arrests because of the much lesser magnitude of the harm are not as much of a problem as their sheer frequency might suggest.

Uncleared Crimes 

There is also good data on the number of many kinds of crimes that are committed in which no suspect is ever identified and arrested, the so called "clearance rate".

For a few crimes, like mass shootings or mass stabbings, and rapes where there is DNA evidence, the clearance rate in the long run probably exceeds 90%.

For murders involving organized crime or gangs, the clearance rate tends to be somewhat under 50%.

For other violent crimes, felony property crimes, and more serious misdemeanors, clearance rates tend to be in the 5% to 40% range. The number of truly petty offenses that are never cleared is higher, because few resources are available to address them and many are never formally reported, although insurance claims, crime victimization surveys, and police reports can provide ballpark estimates that can be compared to conviction rates for the crimes in question. 

The number of traffic and parking offenses that never results in citations, and the number of safety and regulatory violations not giving rise to actual physical injuries or large scale economic harm to any one individual that are never cited, are basically uncountable. The average driver is technically guilty of speeding many times every day but is typically cited for this less than once a year, and commits scores of other traffic offenses each year but only receive citations for them a few times a lifetime.

Quantifying The Harm Associated With Crimes

The rates at which crimes are not cleared is not the end of the analysis, either. Not all crimes are created equal. 

The harm from economic crimes is proportionate to the economic harm done plus some sort of kicker for the preventative measures these crimes make necessary and the sense of victimization and loss of societal trust that they produce even if no physical harm is done. There are lots of good studies quantifying these harms in more and less comprehensive ways.

Traffic offenses in cases where accidents don't result, safety regulation violations, and vice offenses aren't intrinsically wrong (they are not malum per se and are instead malum prohibitum). The costs of non-enforcement of violations of these criminal offenses is a function of the extent to which non-enforcement leads to the harms that these prohibitions are designed to prevent like accidents, STDs, addiction, drug overdoses, other criminal conduct caused by substance abuse, damaged non-commercial romantic relationships, and the creation of a marketplace that encourages people to do degrade themselves.

Violent crimes and certain other non-economic crimes also vary in seriousness, in part, by type of injury and in part by the harm that they do to the social fabric and the economically and socially costly measures that are taken to prevent them. There have been good economic studies attempting to value this harm and they uniformly conform to the conventional wisdom that serious violent crimes are extremely costly in terms of their harm to society as a whole and victims of them in particular.

Serious Criminals Who Are Never Caught

A harder to estimate figure, although there is some literature to allow for crude estimates, is the number of people who commit felonies who are never charged with a crime by the number, type, and seriousness of the crimes.

A reasonable estimate for the number of serial killers and serial rapists (overlapping sets of people) who are never convicted of any serious crime, probably number in scores to low hundreds for the entire nation at any one time, based upon clearance rates in crimes where this is suspected of happening and the frequency with which someone is convicted of serial killings and/or serial rapes only after committing a great many such offenses.

There is fairly good data out there about the average number of burglaries and robberies committed that are not cleared, by any given burglar or robber who is convicted of burglary or robbery, which combined with clearance rates and with studies of the impact of recidivist sentencing for these offenses can be used to make some sort of reasonable estimate of how many serial burglars and robbers are never convicted of serious crimes, although with significant uncertainty.

It is also possible from evidence of convictions to conclude that the lifetime number of serious crimes that a person commits follows a power law whose parameters are possible to reasonably approximate. This data together were clearance rates and confidential survey data on previous uncharged offenses (and non-confidential information on people discovered to have committed many offense when they are first convicted of serious offense) for offenders with different numbers of convictions can be used to make reasonable estimates of the number of people who have never been convicted of a crime who have committed any given number of serious offenses. 

The hardest parameter to estimate because it has only weak support in the literature, is the bias which is almost certain to be present to some degree or another, that some criminals are more likely to be caught than others.

This parameter can't be too high for the subset of people who commit crimes who do it as a livelihood, since we can reasonably estimate the share of people who are gainfully employed full time or otherwise engaged in education, training, peaceful retirement, homemaking, and the like.

Quantifying The Effectiveness Of Crime Prevention Measures

One can quantify the effectiveness of various crime prevention measures although doing so is particularly challenging to do well and the approaches to doing so vary greatly.

This can include the effect of different approaches to incarceration and sentencing (including recidivist sentencing and overall incarceration rates), the effects of lead poisoning, abortion legalization, and education, the effects of security cameras and visible law enforcement patrols, the effects of DNA testing, the effects of religious practice and marriage,  the effects of youth programs and mental health programs, the effects of wars and weather, and more impacts on crime rates.

Jail and Prison and Parole And Probation Maladministration

One can quantify the extent to which jail and prison conditions, and treatment of people on parole and probation is improper or deficient in preventing harm.

One can look at overuse of solitary confinement which is increasingly well-quantified.

On one hand, one can look at estimates from discipline reports and survey data and prosecutions on crimes by inmates who are incarcerated directed at other inmates, guards, other staff, and visitors, with prison and jail riots at an extreme. 

This can also extend to allowing the early release of dangerous inmates who engaged in rampant unpunished misconduct and crimes while incarcerated on one hand, and failing to release model inmates who pose little or no threat to the public on the other when this is allowed.

One can likewise at crimes and misconduct committed by guards and staff against inmates, with indifference to health concerns (especially those related to substance abuse, pregnancy, and mental health issues), indifference to safety from inmate on inmate violence, tolerance for gang activity, sexual abuse of inmates by guards and staff, and other capricious or outrageous conduct. 

One can look at undue laxity towards parole and probation violations that can put the public at risk, and a general lack of supervision when needed by understaffed probation and parole departments. One can look for efforts to set ex-cons up for failure or success upon reentry to the general population upon release. And, one can look at abusive and extortionate conduct by parole and probation officers.

Some of this is well-quantified, much of it, especially in the areas of parole and probation supervision abuses and laxity is not.

Quantifying Civil Rights Violations

There are various efforts to quantify civil rights violations. There are estimates of wrongful convictions, wrongful arrests, wrongful stops, and discriminatory exercises of discretion in law enforcement, charging and sentencing and plea bargaining decisions. There is evidence of Brady violations (i.e. failures of prosecutors to disclose exculpatory evidence in a criminal cases). There are include criminal prosecutions, civil actions, settlements, and firings for wrongful law enforcement conduct. There are successful evidence suppression hearings and post-trial collateral attacks on criminal convictions. There is data on when police use deadly force and other kinds of force that can be parsed to identify questionable cases. There is discrimination in employment litigation in the criminal justice system. There are scandals that are reported on in the media demonstrating patterns of misconduct.

There are decent estimates of the percentages of law enforcement officers who have engaged in particular kinds of misconduct, and of law enforcement officers who are witnessed particular kinds of misconduct and failed to report it or take action to prevent it. It isn't perfect or complete, but it is clear that a large percentage of law enforcement officers (far more than a majority), at a minimum tolerate some kinds of legally actionable misconduct that they witness in their peers.