Opinion Editorial

Timothy J. Heaphy


U.S. Attorney Opinion Editorial

 


As United States Attorneys, we work to ensure that justice is done in federal courts across the country.  The work of our offices gives us a unique and informed perspective on the effectiveness of the criminal justice system.  We are concerned that alumni and other readers of the Fall 2011 edition of UVA Lawyer will get the mistaken impression that the system is afflicted with repeated instances of professional misconduct and unfair, one-sided rules of procedure, all of which lead to unjust outcomes.  We write with a contrary perspective – one much more optimistic about the state of criminal justice in this country. 

The title of the Fall 2011 magazine sets the tone for its contents, as it bears the title Criminal “Justice.”  The quotation marks surrounding the second word reflect the magazine’s central thesis – the suggestion that true criminal justice in America does not exist.  The four articles included in magazine’s contents reinforce the notion that our nation’s system of investigating crimes and adjudicating criminal charges is fundamentally unjust. 

The first article, “Criminal ‘Justice,’: Demanding Certainty in an Uncertain World” is a survey of various issues of current practice, from police procedures to eyewitness identification to plea bargaining to rates of incarceration.  The article consistently suggests that the system is populated by unethical lawyers who produce unjust outcomes.  It includes statements as baldly cynical as “[a]nyone who spends a day in criminal court has to wonder how the system can work at all,” which reflects the article’s central thesis of system dysfunction.

The next several articles in the magazine do little to counteract the suggestion that the system is broken.  We read about the unfortunate experience of a junior public defender who recounts instances of lengthy pretrial delays and unduly harsh sentences imposed upon her clients.  We also read about the work of the law school’s Innocence Project, which recently won a habeas case in the Eastern District of Virginia based on allegations of prosecutorial misconduct.  The issue concludes with an essay by a criminal law professor who suggests that police have unfettered discretion to abuse people of color given the Supreme Court’s tolerance of detention for minor traffic offenses. 

We don’t question the validity of the specific concerns expressed in these articles.  As our boss Attorney General Eric H. Holder, Jr. has observed, “[w]hile I believe this [criminal justice] system is worthy of praise, I also recognize that it is not without problems.”  Mistakes do occur within the system, and its practices and rules worthy of continual reexamination.  Given the liberty interests at stake in criminal cases, we must strive to improve its procedures and ensure its effectiveness.  Law schools have a role to play in that process of critical reevaluation. 

While we don’t object to the magazine’s criticism of particular outcomes, we do object to the absence from its pages of any meaningful counterpoint to the consistent skepticism about the current system.  While the issue does include quotes from several current prosecutors, their perspectives are barely audible in the cacophony of harsh criticism of the criminal justice process.  The single article about prosecutors is a short human interest piece about the law school’s Prosecution Clinic, which highlights the role that clinic experience played in the job searches of the featured young alumni.  There is no thoughtful narrative of the practice of a prosecutor to contrast the perspective of the young public defender, and there is no discussion of the issues facing prosecutors and their important role in the pursuit of justice. 

Where is the perspective of the victim?  There is literally no reference at all to crime victims and the voice they deserve within the process.  What about the judges, who would be far more qualified to opine on the current state of criminal justice in America?  And what of agents and investigators, who work to gather facts and bring forth facts and actual evidence, rather than opinion and conjecture?  We hear none of those voices, which severely undercuts the reliability of what purports to be a thoughtful survey of criminal justice in America.

Our view from the trenches of the criminal justice system is much more optimistic than that presented by the magazine.  The process by which we investigate criminal offenses and adjudicate criminal charges in this country is far from broken.  It is characterized by procedural rules that are scrupulously fair and consistently enforced.  It is perpetuated by a range of hard-working, ethical professionals on all sides who work hard every day to ensure that justice is achieved in ways large and small.  The outcomes of the system are overwhelmingly accurate and reliable.  We need to learn from the aberrational mistakes and endeavor to make the system more fair, humane, and just.  We believe that process unfolds every day in American courtrooms, and we will do our part to ensure that the evolutionary arc of criminal justice continues to tilt toward the good.  This obligation has been reinforced by Attorney General Holder, who has indicated that “we, as stewards of our nation’s criminal justice system . . . all share a responsibility to ensure the fairness and integrity of that system.”

The Fall 2011 magazine is dedicated to the memory of Professor William Stuntz, who died too young earlier this year. We were fortunate enough to learn from Professor Stuntz during his tenure at the law school.  While he was known for being a skeptic, his conclusions were extremely deliberate and thoughtful.  Indeed, all of us learned that every legal problem has two sides, and that we are most effective as advocates when we understand and respect the arguments of our adversaries.  The magazine devoted to Professor Stuntz shrinks from his tradition of careful deliberation and fails to provide any meaningful contrary perspective from that reflected in its sarcastic title.

We hope alumni, faculty, students and others who care about criminal justice in this country will consider our contrary views and skepticism of the perspective expressed in the UVA Lawyer magazine.  We look forward to working with the law school and others interested in a serious and productive discussion of system effectiveness.  Like the Attorney General, we share the goal of perfecting the criminal process and ensuring that it provides real justice for all. 

 

Timothy J. Heaphy, LAW ’91
United States Attorney
Western District of Virginia

Neil H. MacBride, LAW ’92
United States Attorney
Eastern District of Virginia
Brendan V. Johnson, LAW ‘01
United States Attorney
District of South Dakota

 

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