JANUARY 18, 2015
JUSTICE ANTHONY KENNEDY once famously suggested that the procedural nightmare depicted in Franz Kafka’s The Trial “is actually closer to reality than fantasy as far as the client’s perception” of our criminal justice system. In his short but dense work, Kafka’s Law: The Trial and American Criminal Justice, Robert P. Burns takes the comparison further, beyond the client’s perception to the realities of our system itself. This is a deeply pessimistic study about the way justice is meted out in this country. And though for a few pages at the end Burns offers his suggestions for a way out of our current state, even that glint of hope is leavened with despair. In other words, this is a perfect beach vacation read — so long as the beach is in Maine and the vacation is during the dead of winter.
Burns opens by reminding the reader of the plot of The Trial, perhaps Kafka’s most famous work, focusing on the many evils and injustices within — the secrecy of the judicial process, the isolation and inaccessibility of judges, the systematic ineffectiveness of defense attorneys, and, above all, the bureaucracy — that eventually lead to our protagonist Josef K.’s execution. A professor at Northwestern University School of Law, Burns provides a thoroughly academic exposition of The Trial, drawing on Hannah Arendt, Harold Bloom, Charles Taylor, and other political philosophers and literary critics to add to his own sense of the novel. At the same time, he acknowledges that Kafka has written “a deliberately uninterpretable parable, in the sense that there exists no single account, distinct from the story itself, which can adequately capture the conflicting perspectives and experiences embedded in the tale, and which most fairly reveals our actual concrete experience of the world.” Much of the first chapter retells the story for those who might not have read it recently — or at all.
Burns then posits that the American system of justice is drawing ever closer to the nightmare process that bewilders, envelops, and eventually does in Josef K. Well, perhaps not our entire system is Kafkaesque, Burns allows; just the “law in action,” rather than the “law on the books.” “Our criminal justice system in action,” he writes, is no longer one of adversarial trials, where the prosecution must meet the highest standard of proof before an impartial fact-finder to prove a defendant guilty. Instead, it “is a system of police interrogation followed by plea bargaining,” where nearly every substantive decision is made behind closed doors and where defendants are largely at the mercy of cops and prosecutors.
As many as 97 percent of federal criminal cases and a likely 95 percent of state criminal cases are resolved before trial with a plea agreement, and as Burns notes, these plea agreements are all too often the result of coercive police interrogations, false confessions, and an overwhelming imbalance of power between prosecutors and defense counsel. Our criminal justice system is a dehumanizing process that not only shortcuts many of the procedural protections afforded in the Constitution, but also gets many results just plain wrong. Estimates vary, but it seems indisputable that hundreds if not thousands of people are in jail or prison for crimes they did not commit. Indeed, according to the National Registry of Exonerations at the University of Michigan Law School, 1,532 people have been formally exonerated since 1989, meaning that each of those people had been previously wrongfully convicted and imprisoned. This number seems the tip of the iceberg. In a system premised at least in part on Blackstone’s principle that “better ten guilty persons escape than one innocent suffer,” something is undoubtedly and profoundly awry.
In these criticisms, Burns is surely correct. Similar concerns have been raised from slightly varying perspectives by Justice Kennedy, United States District Judge Jed Rakoff, and the late Harvard law professor William Stuntz, among many others. Even outgoing Attorney General Eric Holder, the highest law enforcement officer in the land, recognizes that the plea bargain process has become perverted by mandatory minimums and other factors, and has taken cautious steps to reform it at the federal level. But the law enforcement industrial complex is politically powerful and not afraid to bludgeon even restrained efforts to make the playing field a little less uneven for criminal defendants. That Burns has added his voice to this growing chorus for reform is not insignificant, and might give others similar courage to stand up and be counted.
If it is intended as a spur to reform, however, Burns’s effort leaves a number of things to be desired.
First, simply using Kafka as a reference will lead some to ignore his book entirely. A number of critics, perhaps most notably Judge Richard A. Posner of the Seventh Circuit Court of Appeals in Chicago, have argued that Kafka’s fiction should not be read as commentary on the law at all. Even without agreeing to that strict postulate (and I don’t — Kafka was himself a lawyer, several of his novels take place in a legal setting, and his works can easily be read as a warning to be vigilant about protecting individual liberties within a legal system), one can feel great unease about the use of such hyperbole to advance what is still a perilously fragile reform agenda. No matter how problematic and unfair our legal system is and can be, our processes do not approach the “malevolent whimsy” of Kafka’s world. By likening the two, Burns risks turning off readers who are not already predisposed to unquestioningly agree with his position.
Second, because he must support (what I suggest is) an exaggerated theory, Burns tends to be argumentative in his presentation of the facts, ignoring trends or evidence that work against it. He spends several pages, for example, lamenting that so many politicians reflexively adopt a “tough-on-crime” stance to get elected, and rely on harsher and harsher criminal sanctions to try and solve so many of society’s ills. He similarly laments that we are “one of few developed countries that retain the death penalty.” “In short,” he writes,
We increasingly resort to punitive means to address our social problems and seek ever greater dominance and control over the citizenry. And so Kafka’s law lurks in the background of our justice system and threatens American law.
But in support of this argument, Burns gives lackluster examples. He points his finger, for instance, at politicians who ran for office a generation or more ago — George H. W. Bush, Bill Clinton (in his first race for president), Gray Davis, George Pataki, Reubin Askew. These men have all been out of office for years, if not decades.
Indeed, there are a number of signs that things have been improving in this area. Just this November, the voters of California approved Proposition 47, which immediately reduced to misdemeanors a host of former nonviolent felonies. Thousands are expected to have their sentences reduced as a result. There is a growing movement to legalize marijuana in several states, which might result in significantly reduced incarceration for minor drug offenses. In just the last several years we have seen the death penalty abolished in several states (New Mexico, Illinois, Connecticut, and Maryland, raising the number of states with no death penalty to 18), and a recent study by the Death Penalty Information Center suggests that only seven of our 50 states actually still carry out the ultimate sanction, down from 20 in the late 1990s. There are no doubt still politicians who are reflexively “tough on crime,” states whose addiction to the death penalty borders on the extreme, and judges who seem to care more about getting it done than getting it right. Surely Burns could have come up with examples more relevant to today’s political environment, and that he does not leads one to question whether his complaint is obsolete.
There are other positive signs of a shift in public perception that Burns fails to acknowledge: The Innocence Project reports that 258 convicts have been exonerated since 2000 using DNA evidence, and perhaps more importantly, tens of thousands of suspects have been cleared with DNA evidence before any conviction at all. In “law-and-order” Texas, a sitting judge and former district attorney was forced to step down from the bench, surrender his law license, and plead guilty to criminal contempt for having failed many years earlier to disclose exculpatory information to the defense in a case he was prosecuting. This might just be a one-off, but you can bet it got the attention of prosecutors, who will now be more attentive to their duties of disclosure. Judges have been speaking out in more force and greater numbers against mandatory minimum sentences, and this past January, Deputy Attorney General Jim Cole lent the support and imprimatur of approval of the Department of Justice to Clemency Project 2014, which aims to reduce sentences for those previously convicted under harsh drug laws. These are but a few signs that the tough-on-crime policies and attitudes that dominated the American political and judicial environment for three decades have begun to wane, or at least be seriously challenged. But Burns hardly acknowledges them in these pages. His arguments would have been much more powerful if he recognized the progress made on these fronts, and then explained why more work still must be done. Moreover, by still insisting that our system is slouching towards Kafka’s, Burns belittles or ignores the importance of those steps towards reform.
Finally, Burns’s principal proposed solution to this crisis is both unrealistic and overly simplistic. It can be summed up in three words: more jury trials. To be fair, Burns does suggest a few smaller bore proposals, some of which might have real merit — making it mandatory to tape record custodial interviews, for instance, and requiring probable cause as a precondition to interrogation. Some of these proposals have also been recommended by others. Other of Burns’s ideas are, in my estimation, more likely to exacerbate problems than solve them. His calls for citizen prosecutors, neighborhood grand juries, and permitting juries to set sentences, for instance, seem particularly dangerous and encouraging of vigilantism. While there should be some role for communities in resolving disputes as an alternative to our legal system, these proposals to vest lay men and women with legal authority to bring charges and choose the punishment seem like unwelcome steps toward another George Zimmerman, the self-empowered neighborhood watch volunteer who fatally shot Trayvon Martin in Sanford, Florida, in 2012.
But the heart and soul of Burns’s argument is that more cases should be tried by a jury. In theory, more jury trials means fewer cases decided by plea bargain, more defendants getting their day in court, and more people taking the chance to exercise their constitutional rights. Given the vicissitudes of trials and juries, whether this would result in a more just system for defendants is a bit of an open question. One thing, however, is for certain: “more trials” comes with a cost. Literally. One of the biggest reasons why there are so many plea bargains is because our court systems are already overloaded. Pleas are an efficient (if not entirely desirable) way to resolve criminal matters. As Burns himself acknowledges, citing Professor Stuntz, “if the number of guilty pleas is to fall, […] the number of lawyers doing the litigating — and the amount of public money spent on criminal litigation — must rise, and substantially.” But in the very next line, Burns cruelly sinks all our hopes of a reformed system with the most pessimistic and conclusory line in his book: “Here optimists really are fools.” This money, Burns is telling us, will never come.
This is certainly a disheartening way to end his missive, and one hardly likely to inspire others to take up the mantle of reform. Perhaps the book would have been better titled “Dante’s Law: Abandon all hope, ye who enter here.” But Burns need not have pinned all hope to his single, unattainable fantasy of more jury trials. It is, I would argue, on the many fronts described above that the battle to reform our criminal justice system must be waged. There is hope out there for those of us who wish to see our criminal justice system reformed, and it need not and should not wait for a single cure-all. Our electoral system, executive branch action, pro bono work by committed lawyers, and nonprofits like the Innocence Project all have a role to play — as do academics like Burns who push the limits of our discourse. No problem this intractable has ever been solved with a silver bullet. Like any other major issue of our time, the solution is likely to come from a thousand targeted efforts that over time add up to something big. Sometimes these efforts might be uncoordinated, or feel counterproductive, and often they will be unsatisfying even when they succeed. But progress in this area can and should be measured in steps.
Our criminal justice system is extraordinarily complex, and many of its problems seem intractable. Burns identifies a number of these problems and pulls no punches in doing so. Ultimately, however, the book falls short by failing to acknowledge the progress of recent years or offer workable solutions, leaving unsatisfied even a reader convinced that the system is broken and in desperate need of reform.
 See Molly Hennessey-Fiske, “Wrongfully convicted inmates fight for compensation,” Los Angeles Times, December 20, 2014, at A1.
 See, e.g., Terry Carter, “A Justice Who Makes Time to Read, and Thinks All Lawyers Should, Too,” Chi. Daily L. Bull., Jan. 26, 1993, at 2 (quoting Justice Kennedy); Jed S. Rakoff, “Why Innocent People Plead Guilty,” New York Review of Books, November 20, 2014; William J. Stuntz, The Collapse of American Criminal Justice, Belknap Press/Harvard University Press (2011).
 See, e.g., Richard A. Posner, Law & Literature at 135 (1998) (“The heart of The Trial lies elsewhere […] in K’s futile efforts to find a human meaning in a universe, symbolized by the court, that has not been created to be accommodating or intelligible to man but is arbitrary, impersonal, cruel, deceiving, and elusive.”); Patrick J. Glen, Franz Kafka, Lawrence Joseph, and the Possibilities of Jurisprudential Literature, Georgetown University Law Center (2011) (available at http://scholarship.law.georgetown.edu/facpub/967), at 49 (noting that Professor Robin West has neatly summed up Posner’s views of Kafka thusly: “These stories just can’t be telling us something about law, because law is a ‘system of rules,’ and what Kafka describes is more like ‘malevolent whimsy.’”)
 Who is Reubin Askew, ask you? I did, too … and I’ve been a political junkie for 30 years. He was, apparently, governor of Florida in the 1970s.
 Pamela Colloff, “Jail Time May Be the Least of Ken Anderson’s Problems,” Texas Monthly, November 14, 2013 (available at http://www.texasmonthly.com/story/jail-time-may-be-least-ken-anderson%E2%80%99s-problems).