Who keeps demanding that America defund the police? Amid surging violent crime, who rails about “mass incarceration” and recommends that America release more violent criminals? As the opioid epidemic rages, who keeps proposing legalizing all drugs? Faculty at elite law schools, that’s who. Though many of these law professors have never spent a day, much less decades, prosecuting or defending criminal cases, they formulate positions on pressing matters of criminal justice, and their views are often as influential as they are misguided.
A good example is an article by University of Virginia law professors John F. Duffy and Richard M. Hynes recently published in the University of Chicago Law Review. It argues that the government should subsidize bail payments for criminal defendants. In other words, when a defendant is arrested for a crime, the government would set bail via a judge, then pay a certain amount back “up to the expected costs of jail” through a surety to let the defendant out pending trial. “The problem,” the authors write, “is that out of the range of pretrial restraints on liberty, our society subsidizes the full cost (or nearly so) of the most restrictive option—jail—and leaves the bail or surety option open only to those who can afford it or who have friends or relatives willing to subsidize it.”
The article is well written, intellectually stimulating, and diligently researched. But it asks the government to move money from its left pocket to its right pocket, all for the pleasure of letting someone charged with a crime out of jail. Why not also have the government pay for a criminal defendant’s fines? Or, in lieu of the defendant going to jail after conviction, offer to pay the defendant the cost of incarceration and let him out instead? From the standpoint of a hardened criminal, bail is just the cost of buying your freedom to commit more crimes and never have to show up for court.
The authors may know their economics, but their lack of experience blinds them to a number of key points. A defendant with no personal stake in appearing for court has no incentive to show up and risk a negative outcome like jail. Defense counsel have a responsibility to identify defendants who are low-risk for flight or violence and to file motions to modify bail, making sure that nobody is incarcerated simply because they lack the money to get out. The monetary amount set by a judge for bail not only accounts for flight risk but also is a proxy for the risk of re-offending. These academic authors miss such commonsense factors because they do not encounter the real world of crime and criminals in their work.
Meantime, the authors set the cost of having to recapture a bailed defendant who flees at $10,000, then perform various cost-benefit analyses based on this figure. But when it comes time to calculate the economic cost of a defendant out on government-sponsored bail who decides to murder somebody, they concede that their economic analysis breaks down—before quickly moving on to another topic.
In the authors’ own words, the article’s purpose is to help pass a “reform that is extremely favorable to defendants,” and as such it appears at an inauspicious time for the bail-reform movement, when a growing number of defendants released pretrial have been committing new and horrific crimes—a fact that seems lost on the writers. Their article, in its academic detachment and lack of practical knowledge of the subject, is representative of the broader criminal justice reform movement.
A similar problem once dogged the medical field. In the Dark Ages, medical advice was dispensed by doctor-philosophers. These sages had never actually performed surgery or even dissected a body, but they were comfortable assuring people that drilling a hole in the patient’s skull would release demons, that the way to cure a disease was to balance the “humors” in the body by bleeding the patient, and that a good incantation or spell might heal anything. It was not the philosophers but barber-surgeons who made the breakthroughs: forced to perform operations, they learned through trial and error. Some began dissecting corpses, learning by getting their hands dirty. From these unschooled practitioners, the modern tenets of surgery were learned. A barber-surgeon, Ambroise Paré, is regarded today as the “father of modern surgery.”
The field of medicine has not forgotten its lesson in the value of such experience. A long-time friend is a professor of orthopedic surgery at Harvard Medical School. He spends two days a week performing surgery, filling the rest of his time teaching new doctors, performing research, writing articles, and seeing patients. When he writes, his views are constrained by experience and hard data. Perusing the rest of the medical faculty at Harvard, the same pattern emerges: theory supported by decades of actual experience treating patients.
By contrast, elite law schools are staffed almost exclusively by legal philosophers who lack the decades of experience in the subject about which they theorize—especially as prosecutors. No surprise that these schools have become a hotbed for radical ideas on criminal justice reform. The criminal law faculty is far from balanced between attorneys who spent decades in the trenches as prosecutors and those who worked as defense lawyers, bringing back that hard-won knowledge to their teaching and writing. Instead, it’s littered with pure theorists or idealistic former defense lawyers who just want fewer people in jail. At best, prosecutors are consigned to practice clinics or adjunct positions.
Law schools can solve this problem. These law professors could attempt to prosecute or defend criminal cases in real courts every year. The schools could also hire experienced people to teach and research in the field of criminal law. Some non-elite schools already are beginning to do this. Perhaps a professor at an elite law school who was an experienced prosecutor could pen an article about how refusing to prosecute violent criminals might lead to an increase in homicides, how legalizing all drugs is a catastrophic idea, or how the wholescale decarceration of criminals can lead to the same chaos as America’s decision to abandon long-term mental-health facilities.
If American law schools don’t take this or similar advice, get ready for the next hot theory. After we abolish the police and prisons, let’s abolish criminal laws entirely. What’s the worst thing that could happen—the murder rate rising by 30 percent in one year? Impossible, right?