with an essay riffing on the provocative, if incomplete, work of a Trump-appointed federal judge:
more (I’ll be talking about one other major problem with Bibas’s book later, but it is an excellent, extremely accessible attempt to make the courts both more attentive to justice and more penetrable by mercy)
A 17-year-old black girl pleads guilty to involuntary manslaughter in her boyfriend’s death—even though the boyfriend was actually killed by a police officer. A judge is recalled by voters after handing down what’s perceived as a shockingly light sentence to a college athlete convicted of sexual assault.
These are two stories from America’s “punishment factory,” the term Trump-appointed federal judge Stephanos Bibas coined in his 2012 work of legal philosophy for laymen, The Machinery of Criminal Justice. Bibas’s central thesis is framed in terms familiar to Trump-era politics: “insiders,” meaning legal professionals, have captured the justice system, shutting out “outsiders” from victims to defendants to Joe Q. Public. Insiders use all the tools at their disposal (trading guilty pleas for reduced charges, as in the Saunders case, is only the most flamboyant) to clear staggering caseloads; under pressure to hit production quotas, they sacrifice the goal of anything like justice. America often punishes too much, Bibas argues, and less often underpunishes, because punishment has become unhooked from its purpose of restoring broken communities.