Virginia’s criminal-justice system desperately needs a Billy Beane “Moneyball” moment.
For anyone who missed the Michael Lewis bestseller or didn’t catch the Oscar-nominated movie, Beane was the Oakland Athletics general manager who brought empirical analysis to the practice of recruiting talent and building professional baseball teams. Beane eschewed the traditional method of management based on hunches and stagnant aphorisms — basically consulting an old man in the stands with binoculars following his gut — in favor of an objective, statistical approach. After facing intense resistance to his ideas, Beane’s team thrived despite having a smaller payroll than most competitors.
Since then, the power of information has become manifest. Data and analysis have supplanted intangibles and intuition in a series of industries.
And then there’s criminal justice, which missed the empirical wave, remaining mired in a morass of inefficiency, dysfunction and reactionary policymaking divorced from social science and data. The public is awakening to what some of us in the criminal-justice field have known for years: The system is bad, and it’s not getting better.
Withholding of exculpatory material, admission of dubious physical evidence, acceptance of questionable forensic disciplines such as bloodstain pattern analysis, misleading interrogation methods and faulty eyewitness identification procedures are a few of the issues plaguing our system.
Virginia leads the country in routing students into the criminal-justice system. We stigmatize tens of thousands of people per year with criminal convictions for non-violent drug crimes. Virginia’s system is riddled with prejudices, false assumptions, dangerous intuitions and inefficiencies.
We had a brief moment of optimism when the Virginia Supreme Court convened a special committee on discovery rules in 2014. In Virginia, defense lawyers essentially have no right to access most of the information necessary to mount a defense. Full and equal access to information improves efficiency and outcomes, but Virginia was limiting the information available to one side of the courtroom. This pervasive asymmetry between prosecution and defense was undermining the adversarial system’s ability to function properly and pursue truth and justice.
A change looked imminent when the committee’s year-long study recommended comprehensive, fundamental changes. Then, every recommendation was dismissed (or at least indefinitely tabled) by a single sentence in a news release, leaving Virginia one of the states, in the words of The Post, “stuck in the past, clinging to trials-by-ambush in which the accused, along with defense lawyers, remain in the dark about witnesses and evidence practically until the moment they are confronted with them at trial.”
The system is not intentionally bad. While some injustices are the result of bad actors or conscious decisions, most of them are because of the system’s stubborn refusal to embrace and incorporate new information. We are sitting in the stands with binoculars, making decisions based on intuition and doing things the way they have always been done. At some point, “progress” became a dirty word: The system decided our ideal justice was in some romanticized and fictional past instead of realizing that it lies ahead, and only if we embrace our responsibility to work to achieve it.
So what does a better justice system look like? It is proactive, not reactionary. It is deliberate but open-minded. It is a system that makes more referrals to mental-health and substance-abuse treatment and less incarceration. It is a system that retains the skepticism that is a bulwark against junk science and misleading testimony but embraces developments in biology and social sciences that give us a better understanding of human behavior, psychological processes and unconscious factors that undermine equal justice. As Adam Benforado puts it in his book “Unfair”:
“Our judicial system is flexible enough to respond to new developments in the mind sciences that reveal flaws in our laws and processes. There are solutions and remedies within our reach. Some of these solutions, like reconceptualizing which behaviors we punish, are grand and ambitious and must be the focus of long-term efforts. But many others, directed at police training, rules of procedure, courtroom design, and our legal code, could be implemented quickly. Whether we choose to pursue them will have less to do with our natural limitations and more to do with the robustness of our commitment to equal justice under the law.”
We need to stop pretending we achieved perfect justice at some indefinite past and embrace progress toward a more just future. We need to familiarize policymakers with the mountain of scholarship from people dedicated to studying social policies. We need more information and less intuition. We need a Billy Beane moment.
The writer is a criminal defense lawyer.