A Penny For Your Thoughts, Judge

Thank God we live in a country whose leaders speak like this. What if they didn’t, or couldn’t?

In this case, maybe it’s because the speaker, Alex Kozinski, a prominent federal judge, was an immigrant born behind the Iron Curtain, the son of two Holocaust survivors who came here when he was twelve. Maybe we value the rule of law more viscerally when we’ve seen firsthand—when we know and understand—what government is capable of.

In any event, Judge Kozinski sat down recently for an interview on criminal law and justice, and it’s riveting. Courtesy of the Washington Post, the interview is split into five short video clips on the topics below. I’ve excerpted some of his comments here, but each clip is only one or two minutes long, and they’re worth watching and listening to.

On police militarization and surveillance. “I somehow got on a law-enforcement mailing list. I don’t know whether they send this to all judges, but I do get these catalogues that show all the equipment that they make available for the police. And my word, those things really look like they belong in the military…. It’s important to fight crime, it’s important to fight terrorism, and we certainly rely on police to do many things that, God knows, most of us would not want to do. So I think we should be very grateful to the police for being willing to put themselves out there in harm’s way on our behalf, but I think there is such a thing as too much. There is such a thing as being too zealous and entrenching on people’s freedoms. We do not want to live in a militarized society.”

On redemption and rehabilitation. “So … we have made it much easier to keep track of people and to have the past revealed, and in some cases that’s justifiable for the protection of society. But I think we have gone too far. I think there’s such a thing as privacy. There’s such a thing as forgiveness. There’s such a thing as giving people truly a clean break to remake their lives. And our system tends to pull them back, tends to pull them down. And basically says you’ll never get away, you will never have a normal life again. And I think that’s too bad. I don’t think that’s a society we want to live in. I think … we have traditionally believed in the concept that people can reform toward good. They’re not inevitably evil, and they’re not forever evil. And that concept seems to be dwindling, and I’m sorry to see it go.”

On guilty pleas and false confessions. “Well there are many reasons somebody may plead guilty, even though there may be doubts, or even though they may be innocent. One of the principal reasons is that, often, there are very serious charges laid on by the government and going to trial is so risky that taking a guilty plea on something that is much less seems the only rational choice. Because if you go to trial and lose, you’ll never see the light of day. There are also many cases where people are interrogated by the police for a very long time, and they wind up giving confessions—confessions that turn out not to be true…. DNA proves it, witnesses prove it, somebody else was out there. But the police managed to extract a confession. Well, once you confess to the police, any lawyer will tell you it’s very hard to persuade the jury that you are not guilty. So people may take a guilty plea in that kind of situation just because they think they have no hope of being acquitted, and the guilty plea at least gives them some measure of hope that they will someday see the light of day.”

On overcriminalization. “As the law gets more complex and as more things are criminalized and as more statutes are added, the line between what is criminal and what is not criminal becomes very blurry. Oftentimes you don’t know that something is criminal or you don’t imagine that something is criminal until you get charged with a crime…. Now I don’t think we ought to be charging things that are not clearly crimes. Criminal prosecutions ought not to be an invention. People ought to be charged for crimes for things that are clearly criminal. Not things that a prosecutor can imagine might be a crime.”

On punishment and mandatory-minimum sentences. “One of the things I suggest is that … the jury be consulted. And that right now, in most places in the United States, except in the case of capital cases, the juries have no idea when they convict as to what the likely or the possible sentence would be. I think that’s sort of a mistake. I think we ought to let juries know whether they are weighing the facts and deciding whether someone is going to go to prison two or three years or whether he is going to go to prison likely for the next twenty or thirty years. In life, we don’t make decisions in the abstract. We always know the consequences, we weigh the consequences of the decision. It seems to me the jury ought to be informed, the jury ought to have a say in what the sentence should be.”