Last Tuesday, I began serializing “Criminal Law 2.0,” a new article by Judge Alex Kozinski — for whom I clerked 20 years ago, who is one of our nation’s most prominent appellate judges and who has long been seen as on balance a libertarianish conservative (appointed by President Ronald Reagan). The introduction gave 12 reasons to worry about our criminal justice system. Wednesday’s post discussed wrongful convictions. Thursday’s post discusses the jury system and ways to improve it. Friday’s posts discussed prosecutorial misconduct and possible ways of preventing prosecutorial misconduct. Monday’s post talks about what judges, especially trial judges, can do.

This post and one I posted this morning offer a total of six more suggestions about what can be done, whether through legislation or through the Supreme Court’s reversal of some past decisions. I’ve added some paragraph breaks and removed the footnotes (which are available in the PDF version), but otherwise this is as Judge Kozinski wrote it:

3. Repeal AEDPA § 2254(d). Prior to AEDPA taking effect in 1996, the federal courts provided a final safeguard for the relatively rare but compelling cases where the state courts had allowed a miscarriage of justice to occur. One of the better-known examples of this is the case of Ron Williamson, who in 1994 was just 5 days away from being executed for a murder of which he was eventually cleared by DNA evidence. He was saved when U.S. District Judge Frank Seay entered a stay of execution that began a process culminating in Williamson’s exoneration. The case is described in depth in John Grisham’s non-fiction book, The Innocent Man.
The federal court safety-value was abruptly dismantled in 1996 when Congress passed and President Clinton signed the Antiterrorism and Effective Death Penalty Act. Hidden in its interstices was a provision that has pretty much shut out the federal courts from granting habeas relief in most cases, even when they believe that an egregious miscarriage of justice has occurred. We now regularly have to stand by in impotent silence, even though it may appear to us that an innocent person has been convicted.
Not even the Supreme Court may act on what it believes is a constitutional violation if the issue is raised in a habeas petition as opposed to on direct appeal. There are countless examples of this, but perhaps the best illustration is Cavazos v. Smith, the case involving a grandmother who had spent 10 years in prison for the alleged shaking death of her infant grandson — a conviction secured by since-discredited junk science. My court freed Smith, but the Supreme Court summarily reversed (over Justice Ginsburg’s impassioned dissent) based on AEDPA.
AEDPA is a cruel, unjust and unnecessary law that effectively removes federal judges as safeguards against miscarriages of justice. It has resulted and continues to result in much human suffering. It should be repealed.
4. Treat prosecutorial misconduct as a civil rights violation. The U.S. Justice Department seems ready enough to pursue charges of civil rights violations in cases where police have engaged in physical violence, but far more reluctant to pursue misbehaving prosecutors. But prosecutors can wreck and take lives just like police, and their actions are often far more premeditated than those of officers who may over-react to a belligerent suspect. And when a prosecutorial office uses known liars as jailhouse snitches, or presents evidence from cops they know are prone to fabricate evidence or conduct suggestive lineups or eyewitness identifications, they are committing civil rights violations with dire consequences for their victims.
It is precisely such alternative enforcement mechanisms that the Supreme Court hypothesized in Imbler in deciding to give prosecutors absolute immunity. One can only hope that the U.S. Department of Justice will reconsider what appears to be its policy against investigating prosecutorial misconduct in criminal cases as potential civil rights violations.
5. Give criminal defendants the choice of a jury or bench trial. Under current law, either the defendant or the prosecution can insist on trying the case before a jury. Conventional wisdom is that defendants prefer juries because it only takes one juror to hang, but experienced defense lawyers know that some kinds of cases can best be tried before a judge — particularly where a defendant wishes to testify but fears impeachment with prior misdeeds. The prosecution has many institutional advantages, not the least being that they get to go first and thus have their theory of the case laid out before the defendant can present any evidence at all.
I would think it fair to let the defendant get the choice of judge or jury. Because the government has no constitutional right to a jury, but the defendant does, there should be no constitutional impediment to such a rule.
And while I’m at it, I’d amend Federal Rule of Evidence 609(a) (and its state analogues) to preclude impeachment of a criminal defendant testifying on his own behalf with evidence of his past criminal convictions. Too many defendants are put to the grim choice of either telling their side of the story and having the jury hear of their prior misdeeds, or standing mute and seeming to acquiesce in the prosecution’s case. If the defendant lies, a skilled prosecutor will trip him up on cross; there is no need to paint him as a monster before the jury.
6. Conduct in depth studies of exonerations. The recent spate of exonerations, especially those obtained by DNA evidence, gives us a window as to what can go wrong in our criminal justice system. It is an important database that ought to make us doubt the supposed infallibility of our criminal justice process.
But it can also be a rich source of useful information about why criminal prosecutions go wrong, why police focus on a single innocent suspect, why prosecutors pursue cases without asking hard questions about whether the defendant is truly guilty and why judges and juries are so badly misled in so many cases. This should not be a matter left to academia, although much good work is done there now. Far better, though, if the federal government devoted, say, the cost of one aircraft carrier to analyze and dissect these cases and try to figure out what went wrong and what we can do better in the future.
Thus far, the government has only made such an inquiry into a handful of cases. This effort needs to be expended on a much larger scale, because even a single wrongful conviction is one too many.
7. Repeal three felonies a day for three years. Professor Tim Wu of Columbia Law School recounted a “darkly humorous game” played by Assistant U.S. Attorneys in the Southern District of New York:
A big reason prosecutors have so much leverage in plea negotiations is that there are many laws written in vague and sweeping language, inviting prosecutorial adventurism. It is thus difficult for individuals charged with a crime to know how to defend themselves and to gauge the likelihood of being acquitted.
Even if ultimately vindicated, the process of being charged itself takes a massive toll. Arthur Andersen, guilty of no crime according to the Supreme Court, nevertheless was put out of business, leaving its 85,000 employees world-wide without jobs. Senator Stevens lost his Senate seat even though his prosecution was riddled with misconduct and the Justice Department eventually dismissed all charges. The list of lives and businesses ruined by baseless prosecutions is long.
And, in the words of George Will, “as the mens rea requirement withers when the quantity and complexity of laws increase, the doctrine of ignorantia legis neminem excusat — ignorance of the law does not excuse — becomes problematic. The regulatory state is rendering unrealistic the presumption that a responsible citizen should be presumed to have knowledge of the law.” Repealing a thousand vague and over-reaching laws and replacing them with laws that are cast narrowly to punish morally reprehensible conduct and give fair notice as to what is criminal may not solve the problem altogether, but it would be a good start.

Thanks to all who read these posts, all who commented on them, and of course to Judge Kozinski for allowing us to serialize his thoughtful and provocative article!