NEW VOICES: Ninth Circuit Judge Calls for Sweeping Criminal Justice Reform

In a recent arti­cle for the Georgetown Law Journal, Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit calls for sweep­ing reforms in the crim­i­nal jus­tice sys­tem. The for­mer Chief Judge, who was appoint­ed by President Reagan in 1985, out­lined a num­ber of ​“myths” about the legal sys­tem, rais­ing ques­tions about the reli­a­bil­i­ty of eye­wit­ness tes­ti­mo­ny, fin­ger­print evi­dence, and even DNA evi­dence, which can eas­i­ly be contaminated. 

Judge Kozinski direct­ed his harsh­est crit­i­cism at the lim­i­ta­tions the Antiterrorism and Effective Death Penalty Act (AEDPA) impos­es on fed­er­al habeas cor­pus review of state crim­i­nal cas­es. He point­ed to the case of Ron Williamson, the death-row inmate who was the sub­ject of the John Grisham book, The Innocent Man, who five days before his sched­uled exe­cu­tion obtained a stay from the fed­er­al courts ​“that began a process cul­mi­nat­ing in Williamson’s exon­er­a­tion.” AEDPA, he says, ​“abrupt­ly dis­man­tled” this habeas cor­pus ​“safe­ty-val­ue,” and has ​“pret­ty much shut out the fed­er­al courts from grant­i­ng habeas relief in most cas­es, even when they believe that an egre­gious mis­car­riage of jus­tice has occurred.” Instead, fed­er­al courts ​“now reg­u­lar­ly have to stand by in impo­tent silence, even though it may appear to us that an inno­cent per­son has been con­vict­ed.” He calls AEDPA ​“a cru­el, unjust and unnec­es­sary law that effec­tive­ly removes fed­er­al judges as safe­guards against mis­car­riages of jus­tice. It has result­ed and con­tin­ues to result in much human suf­fer­ing. It should be repealed.” 

Judge Kozinski also exam­ines the roles of deci­sion mak­ers in crim­i­nal cas­es, high­light­ing such myths as ​“juries fol­low instruc­tions,” ​“pros­e­cu­tors play fair,” and ​“police are objec­tive in their inves­ti­ga­tions.” He rec­om­mends reforms to improve the accu­ra­cy and fair­ness of tri­als, includ­ing requir­ing ​“open file dis­cov­ery” — mean­ing that all pros­e­cu­tion evi­dence relat­ed to a case is made avail­able to the defense — and adopt­ing more rig­or­ous stan­dards for eye­wit­ness iden­ti­fi­ca­tion, sus­pect inter­ro­ga­tions, and the use of jail­house infor­mants. He also advo­cates for the elim­i­na­tion of elect­ed judges, not­ing that stud­ies show ​“that judges who face elec­tions are far more like­ly to over­ride jury sen­tences of life with­out parole and impose the death penal­ty” and that elect­ed judges often face polit­i­cal retal­i­a­tion for rul­ing in favor of the defense or for sanc­tion­ing pros­e­cu­tors for instances of misconduct.