Preet Bharara’s Willful Blindness

We’ll never fix the criminal justice system until ‘liberal’ prosecutors recognize how badly it’s broken.

The broad agreement that our criminal justice system is profoundly broken, most recently embodied in a reform bill passed by Congress in December, is a rare contemporary example of genuine bipartisanship. We incarcerate and punish far too many people; we rely on counterproductively punitive sanctions that are often disliked by the very victims in whose name they are imposed; and the system is rife with racial bias at every stage. Thanks to years of work by advocates, academics, and journalists, a broad coalition is now pushing to overhaul how we punish in the U.S.

Doing Justice: A Prosecutor’s Thoughts on Crime, Punishment, and the Rule of Law
by Preet Bharara
Knopf, 333 pp.

You would not know any of this, however, from reading Preet Bharara’s new book, Doing Justice. Bharara was appointed by President Obama in 2009 as the U.S. attorney for the Southern District of New York, perhaps the most prestigious posting a federal prosecutor can get. Although criticized by some for, among other things, not prosecuting the financial fraud underlying the 2008 financial crisis, Bharara aggressively targeted the deep rot of corruption in Albany, convicting both the Democratic head of the assembly and the Republican head of the senate. He was broadly respected by the time President Trump fired him in March 2017. In fact, his abrupt termination, and speculation as to its causes, made him something of a hero to the #Resistance.

In Doing Justice, Bharara explores the criminal justice system by looking at how cases work their way through it, from investigation to trial to punishment. Nearly all the examples and anecdotes come from cases that Bharara’s office handled, which often gives the book the feel of a memoir. But it is clearly intended to be a broad discussion of criminal justice—not just of the rarified world of the federal courts, but of the far messier state systems that handle well over 90 percent of all cases.

The closest thing the book has to a thesis comes toward its end, when Bharara describes the process as “an inquiry fairly conducted, an accusation rightly made, a judgment properly rendered.” This is a stunningly sunny take on our criminal justice system, optimistic to the point of being dangerously misleading. It’s a shame, because Bharara’s insider status would give any criticisms significant heft. Yet not only does he celebrate the current system, he does so without even confronting any of the major criticisms that have been leveled against it. (The major exception is when he addresses the brutality of American prisons.) He offers what is effectively a paean to a slow, deliberative process, divorced from political pressures, that focuses almost exclusively on pursuing the truth, wherever that may lead. It is a laudable system, well worth defending. But it is also one that does not actually exist.

Bharara begins at the beginning, with investigation. “How fraught every decision is along the way to an arrest,” he writes. Yet at the peak of stop-and-frisk in New York City, the New York Police Department stopped about 80 percent of young black men in the city every year. There was nothing deliberative about it; it was impersonal on a massive scale. And the NYPD was not alone in adopting these sorts of tactics. When he turns to trials, Bharara paints a similarly overly optimistic picture. This is the moment for “judges, defense lawyers, jurors,” he writes. “There is judicial and public scrutiny.” He says this without once noting that during his time as U.S. attorney, 90 to 95 percent of all federal cases were resolved by plea bargain, without trial. The jury barely exists in either the federal or the state systems; almost all cases are resolved far from any sort of public scrutiny.

To be fair, Bharara acknowledges that the system is imperfect. But he explicitly rejects the possibility that the problems are at all systemic, arguing instead that the errors that occur are essentially the product of a few bad apples. “False allegations, wrongful convictions, excessive punishments, miscarriages of justice are often wholly the result of human failings, not flaws in the impersonal machinery of justice,” he writes. The idea that failings are individual, not structural, is a theme that permeates Doing Justice.

This runs contrary to all available data. Police violence is a direct product of how officers are trained to use force and the incredibly permissive legal doctrines that insulate them from liability. Judges become noticeably harsher as elections draw near, and prosecutors, judges, and parole boards all feel pressure to look tough on crime. County-funded prosecutors face no restrictions on how many people they can send to state-funded prisons. I could go on; many books have been written about these structural problems (including by me). Yet with only a few passing exceptions, Bharara addresses none of them.

In fact, not only does Doing Justice ignore these issues, it exemplifies and even celebrates the exact kind of thinking that underlies them. Take the incentive to over-punish, which is so well known that it has a name: the Willie Horton effect. Horton was a black man serving a life sentence in Massachusetts for murder who committed two serious violent crimes while out on a weekend furlough program. George H. W. Bush infamously used the case as a racial dog whistle to attack his 1988 Democratic opponent, Massachusetts Governor Michael Dukakis. The high-profile episode ultimately led to more than forty states abolishing prison-leave programs, even though the program from which Horton escaped had a success rate of over 99 percent. This effect encourages everyone from the police to the parole board to err on the side of longer and harsher punishment, even as data consistently shows that such severity is ineffective and harmful to the very communities most often victimized by crime.

Not only does Bharara avoid any discussion of how the Horton effect distorts justice, he actually devotes an entire chapter, titled “God Forbid,” to praising this sort of reasoning. “Law enforcement people are trained to hear that ‘God forbid’ voice,” he writes: “God forbid this person does something.” He then recounts his office’s prosecution of the Newburgh Four, four black Muslim men induced by an undercover FBI informant to plan acts of terror in New York. The informant offered the four men up to $250,000, along with a car and vacations, to carry out a series of attacks near New York City. All of the men were very poor, and one of them seemed quite mentally ill (he stored jars of urine in his house and thought Florida was a foreign country). None of them appeared to be radicalized prior to meeting the informant. 

Even the judge in the case said that she strongly believed the plot existed only because “the government instigated it, planned it, and brought it to fruition.” But Bharara defends the prosecution. “When the possibility of harm is afoot, prosecutors are aggressive,” he writes. “Who knows which threats are real and which are puffery?” And so four men are now spending twenty-five years in prison, because, in Bharara’s eyes, “you don’t want to take any chances.” But what about the chance he did take? Why isn’t the risk of needlessly destroying someone’s life also subject to that “God forbid” voice?

Over and over, Doing Justice perpetuates the problem at the heart of our criminal justice system: the dehumanization of the people subjected to it. With only a few exceptions, including a welcome chapter devoted to lambasting Rikers Island, the New York City jail, for its infamous cruelty, Bharara ignores the complicated lives of those who come into contact with the system. Far more typical is when Bharara reduces defendants to one-dimensional
“bad guys” squaring off against the “good guys” in his office. In a chapter on “snitches,” for example, he notes the emotional nature of working closely with an informant: “You may realize that he is more than the crimes he has committed, just as every person is more than the worst thing he or she has ever done.” This sounds promising. But then he continues: “This is the point of maximal danger.” Danger. Acknowledging the humanity of people facing criminal charges is, apparently, a weakness. This is disturbing. Prosecutors have played a central role in driving mass incarceration, but they also have the power and discretion to reverse it. That even a “liberal” prosecutor like Bharara views empathy as a weakness to guard against, rather than an essential component of doing justice, indicates just how challenging it will be to get the profession to change. 

Few if any books over the past decade have sought to defend the criminal justice status quo with any real rigor. It is possible that such a defense exists—although I am personally hard pressed to imagine what it would look like—but Doing Justice is not it. Real, meaningful reform will require law enforcement officials from the beat cop to the nationally renowned prosecutor to honestly confront the system’s defects and work to make things better. Until then, whatever the criminal justice system is doing, far too rarely can we say that it is doing justice.

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John Pfaff

John Pfaff is a professor of law at the Fordham University School of Law, and the author of Locked In: The Real Causes of Mass Incarceration and How to Achieve Real Reform.