For those interested in criminal justice reform, Criminal Law 2.0 by Hon. Alex Kozinski, a judge on the Ninth Circuit, has provoked many reactions from participants in and observers of the criminal justice system. A quick search of references to the article picked up a number of interesting and thoughtful comments, ranging from a George Will column advocating reform to a letter from the U.S. Justice Department defending the integrity of federal prosecutors. The article highlights problems with the current process that have led to overturned convictions, such as the unreliability of eyewitnesses, identification errors from the use of forensic evidence (e.g., handwriting, bite marks, and even DNA), the fallibility of human memory, and confessions by the innocent.
The number of exonerations recorded by the National Registry of Exonerations (a project at the University of Michigan Law School) is certainly troubling: over 1700 since 1989, 139 in 2014 (up from 91 in 2013), a trend that is expected to continue.
Judge Kozinski makes a number of suggestions for reform, some of which have already been adopted in Michigan in recent years (such as giving jurors a copy of the instructions and allowing them to take notes and ask questions during the trial). Among the author’s suggestions are “rigorous” procedures for eyewitness identification, video recording of the questioning of suspects, limitations on the use of jailhouse informants, and procedures for certifying expert witnesses and preserving the integrity of forensic evidence tests. More controversial suggestions are the elimination of judicial elections and absolute immunity for prosecutors.
As Michigan considers ways to reduce the number of prisoners and to save money on corrections, it will be interesting to see if any of Judge Kozinski’s suggestions are adopted to reduce the number of questionable convictions in the first place.