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Bibas book symposium outlines “The Machinery of Criminal Justice”

February 20, 2012

By Cordelia Meserow C’14

bibas_booksymposium6.jpgOn February 14 students and faculty members gathered in the Law School’s Gittis Hall for a symposium focusing on the latest book by Penn Law Professor Stephanos Bibas, The Machinery of Criminal Justice. Symposium participants included Richard A. Bierschbach, an associate law professor at the Cardozo School at Yeshiva University; Paul Robinson, the Colin S. Diver Professor of Law at Penn Law; Stephen P. Garvey, a law professor from Cornell University; and Matthew Adler, the Leon Meltzer Professor of Law at Penn Law, who served as moderator.   

machinery_of_criminal_justice_2.jpg The Machinery of Criminal Justice analyzes key problems with the American criminal justice system, and in the book Bibas explores the difficulties in meting out effective punishment, and how to re-integrate victims, defendants, and local community back into the overall process.
According to Bibas, in the last two centuries lawyers have taken over the criminal justice process from laypersons and the public, and in doing so have silenced victims and defendants, often substituting a plea-bargaining system for the voice of the jury.
“In a nutshell,” Adler said in introducing the symposium, “Stephanos argues that the criminal justice system has prioritized the interests and concerns of insiders, namely prosecutors, police and defense counsel, over those of outsiders, including not just victims and the public but also defendants themselves.” 
Stephen Garvey then distilled Bibas’s argument into three succinct questions. He began by asking, “What is the problem with our current criminal justice system?” He then proceeded to ask what causes contributed to the problems and then surveyed a range of solutions. 
“The true problem with the criminal justice system,” Garvey said, “lies not in what the system does, but what it fails to produce,” including remorse, apology, forgiveness, and reconciliation.
Garvey cited the pathological dynamics  among members of the public, prosecutors, and legislators as a cause of the broken criminal system. “In response to popular demand,” he explained, “Legislators enact more crimes,” hence more acts become criminal as years go on. 

As a result of this demand, more criminal legislation is passed and punishments increase. Prosecutors favor this system because it maximizes plea bargains and reduces rigorous trial work. Garvey recommended looking to the courts as a solution and advocated a more “robust” proportionality review.
Richard Bierschbach, a frequent collaborator of Bibas’, complimented his colleague’s consistency of message. Bibas’ work follows two themes, he noted: “How criminal procedure disserves criminal law goals and the ways in which real world criminal justice strays from the jury-inspired populist ideal.”   

Bierschbach went on to discuss how plea bargaining has compromised equal punishments and how pleas are a symptom of the problem Bibas outlines in his book. Bierschbach explained that in his view reinstating the layperson role at the local level is vital to the justice system’s restoration. “Sentence guidelines should reflect the public’s intuitions at the local level,” he said. “Criminal law is an engine of social regulation.”
Further, Bierschbach disagreed with substituting restorative justice for criminal adjudication, saying, “We should have restorative processes that are consistent with our constitutional history.” 
Paul Robinson, who followed Bierschbach, supported Bierschbach and Bibas’ argument of the importance of a community’s role in the justice system. 
“The value of the community’s views should be expressed in the community,” Robinson said. 
But Robinson differed with Bibas’ argumentation, defending the need for insiders. “Laypersons aren’t players in the system,” he asserted. “The insider perspective is necessary.” 

Robinson also discussed the need to define a neighborhood ideology. All laypersons may not see reforming the justice system as their top priority or as their proper role. “Different neighborhoods and local communities have different values,” he said.
Bibas, in responding to his colleagues provided the foundation of his argument. He outlined his morality play model, based on the principle that criminal justice is an educational forum and a public theater for the community. 
Bibas recommended bringing the community into the justice process at a local level, through such practices as community policing and community prosecution, and by restoring former processes of sentencing juries to return to a time when the local community was more involved in the system. 
 “If we’re going to punish,” he said, “we need to punish in the name of a community that has the legitimate political authority to punish, that has earned the respect of its people. The system needs to cooperate in order not to be just another thug who’s kidnapping and imprisoning people, right? Otherwise, that’s what our police would be doing.”
Bibas noted that a hard-wired sense of right and wrong was necessary in the practice of justice. “Our sense of right and wrong is like a coral reef,” he said, further noting that police do not just arrest on a whim; they are trying to do justice on the basis of ethics. 
Bibas conceded, however, that it is often difficult to apply academic theories in real life. “A lot of us are ivory tower theorists,” he said. He also conceded that in order for the system to be reformed, the state would need an infusion of funds. 
But at the end of the day, the need is for a criminal justice system that protects its people while earning the community’s trust and legitimacy. “We need a level of punishment that makes the community feel safe,” he said. 

Bibas, who is also the director of Penn Law’s Supreme Court Legal Clinic, studies the powers, incentives, information, and psychology that shape how prosecutors, defense counsel, defendants, and judges behave. He litigates a wide range of Supreme Court cases, both criminal and civil.