Abstract
Excerpted from: Deborah L. Rhode, Character in Criminal Justice Proceedings: Rethinking its Role in Rules Governing Evidence, Punishment, Prosecutors, and Parole, 45 American Journal of Criminal Law 353 (Spring, 2019) (349 Footnotes) (Full Document)
The role of character in the American criminal justice system is complex and contested. In principle, this nation's criminal law is committed to punishing conduct, not character. Our justice system aims to hold individuals accountable not for who they are but for what they have done. But in practice, views about character often influence decisions about guilt, punishment, and parole in ways that are unjust and counterproductive. According to the World Justice Project, the United States ranks 23rd among 31 peer countries on a host of criminal law issues, including fairness for the accused and the effectiveness of the correction and legal process. Although the United States accounts for just five percent of the world's population, it houses over 20 percent of the world's prisoners. Ideas about character, its effect on punishment, are at least part of the problem.
For the millions of Americans who pass through the criminal justice system, and whose families, neighborhoods, and racial groups are devastated by its injustices, our understandings of character have enormous significance. And all Americans have a stake in ensuring that the process by which we take away lives and liberties expresses our highest ideals. The discussion that follows explores ways in which we fall short because our concepts of character misinform our judgments about criminal responsibility. Analysis also touches on the character of prosecutors and judges who enforce the law and need to ensure that their own biases and self-interests do not compromise its fairness. Character-related issues are, to be sure, only a small part of the problems plaguing our criminal justice system, but they are implicated in some of its fundamental injustices, including mass incarceration, class and racial bias, and prosecutorial misconduct. A focus on character can shed light on these broader concerns and the reforms necessary to address them.
To that end, this article proceeds in five parts.
Part I reviews the role of character in the rules of evidence that govern criminal trials. Although those rules generally prohibit evidence of character to prove misconduct, they include many exceptions and limitations that undermine the purpose of that prohibition. This article argues for a more "evidence-based" approach to evidence law, informed by relevant psychological research. Under this approach, courts would engage in "structured balancing" and consider the frequency, seriousness, and proximity of character-related misconduct in determining whether its probative value outweighs its unfairly prejudicial potential. This framework would be more honest than current rules, which let in evidence of prior misconduct for limited purposes under the implausible assumption that jurors will consider it only for those purposes.
Part II looks at the role of character in punishment. It begins with an overview of the punitive turn in the American justice system over the last quarter century, which has dramatically increased prison populations even as crime has declined. As a consequence, the rate of incarceration in the United States is about five times higher than the rest of world. The costs, both human and financial, are staggering, and the suffering is disproportionately born by people of color. Character plays a role in the sentencing and plea bargaining processes that drive mass incarceration trends because it influences perceptions about the culpability of offender and mitigating or aggravating circumstances. Problems arise from inaccuracies and biases in perceptions of remorse and deterrence, as well as from incentives for elected judges and prosecutors to avoid looking "soft" on crime.
Part III focuses on parole, which is another context in which arbitrary and ill-informed character decisions perpetuate injustice. Parole board members too often focus on retribution for past mistakes, not on potential for rehabilitation. The injustices are particularly great for those who are wrongfully convicted and whose refusal to acknowledge guilt bars consideration for early release.
Part IV explores the role of race in character judgments, and the biases it introduces at every level of the criminal justice system: searches, arrests, pretrial detention, charges, sentences, jury selection, probation, and parole. Unconscious stereotypes are pervasive, and affect judgements about character traits associated with criminal behavior, particularly violence, dangerousness, and lack of remorse. The problems are exacerbated by the poverty that is concentrated among people of color; those without adequate education, jobs, housing, or hope are the most likely to commit serious crimes. They are also the most dependent on overworked and underfunded public defenders for legal representation, which can materially affect outcomes. Effective responses to racial bias have been elusive because so many judges, prosecutors, and parole officials are unwilling to suspect it in their own behavior.
Part V explores strategies for reform. One cluster of initiatives should focus on improving character assessment through training on cognitive, racial, and class biases. A second set of strategies should focus on making the criminal justice system less punitive and more rehabilitative, an approach consistent with public opinion and research on cost-effectiveness. A third group of reforms should target the culture, reward structures, and accountability of prosecutors' offices. A final set of efforts should attempt to make the parole process more equitable and effective, and should ensure the support services for paroled offenders that will make rehabilitation possible.
This is not a modest agenda, but neither are the problems it seeks to address. The vast majority of Americans recognize that the criminal justice system is deeply flawed. What is less commonly appreciated is how misconceptions of character contribute to the problem. If we are seriously committed to designing a more just and effective system, we need to focus more attention on the way we think about character in our approaches to evidence, punishment, and rehabilitation.
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By almost every measure, the American criminal justice system falls far short in its commitment to justice. The vast majority of the public recognize as much. Two thirds to three quarters of Americans agree that the system needs major improvement or a complete overhaul. What is less commonly recognized is that laws and practices related to character are part of the problem; they undermine appropriate principles of evidence, punishment, and rehabilitation. It has been over a half-century since Martin Luther King famously shared his dream that one day all Americans would be "judged not by the color of their skins but by the content of their character." We remain a far distance from that ideal.
To make King's dream a reality will require a deeper commitment to social justice by those most responsible for criminal justice practices. We need individuals of character as judges, prosecutors, legislators, and parole board members who will put concerns about fairness and faith in character rehabilitation before politics and self-interest. That is not to impugn the good intentions of the vast majority of criminal justice decision makers. But it is to suggest that too many have been insufficiently self-reflective about their own potential for bias, and insufficiently informed about the cost-effectiveness of incarceration and its alternatives. More of those leaders need to take responsibility for the failures of the current system and for the development of reforms. And the public needs to hold them accountable if they do not. "Equal Justice Under Law" is a slogan that we put on courthouse doors. It should better describe what goes on inside them.
Ernest W. McFarland Professor of Law, Stanford University
