"Resolved: The United States federal government should enact substantial criminal justice reform in the United States in one or more of the following: forensic science, policing, sentencing."
Justice Breyer proposes potential reforms, but many of them are arguably not "substantial." Among his recommendations are training for prosecutors either in the form of training to be a judge or practicing as a defense lawyer as well as a prosecutor. He also indicates his dislike of mandatory minimums, suggesting it would be better if they had not been implemented. His full response is detailed bellow:
Dayna Bowen Matthew, GW Law Dean: Justice Breyer, this student wants to know what is the best way for America to move forward in genuine criminal justice reform and how will you participate as a Justice of the Supreme Court in that reform?
Stephen Breyer, Justice, Supreme Court of the United States: Again, remember we're interpreting federal law and the constitution and that's a small part of the legal system of the United States. So if you want to make a difference--criminal law or some other place--work in your own community; work in training police; work in training and getting things through courts; work in trying to see that there are communities that understand what justice is and understand the problems you cause other people when you don't follow the rules. And, I mean, you know all of that--local, statewide--don't think that the few cases that are in the Supreme Court or in federal law are the things that are going to really determine how you and your family and everyone else live decent lives.
And I sometimes say that one of the problems with something I worked on--the sentencing guidelines--well one of the problems--quite honestly, in my opinion--is those guidelines are too strict. I know that's not a popular thing to say, but what happened is they had very high sentences and then Congress got busy and raised the sentences. And they had something called mandatory minimum sentences which means no matter what you have to put somebody away for goodness knows how long, not just a lot of years and so forth.
'Who is it up to?'
'Well, it's up to the courts.'
'Oh, I see, it's up to the courts.'
Well, prosecutors. Prosecutors can go to a defendant and say, 'I'm going to charge you with a higher crime with a higher penalty or do you want to plead guilty to this one.' I say, my goodness most of the pleas in federal court, and state courts too, are guilty: 90-95%-85%-90% of the time it's just a guilty plea and all the judge is doing is deciding what the sentence was.
'And all those people are guilty.'
'Oh, are they? I hope so, but I'm not sure.'
So one of the things I sometimes suggest, and this brings us back to France is that--. In France, they consider a prosecutor a judge. And you know where he learns how to be a prosecutor? At a judge's school. So why don't we send a few prosecutors to the judge's school so they can be judges? If they're going to decide, you know, what the sentence is and whatever is going to happen to all these people, maybe they should get involved in being trained to do that kind of thing. I say that somewhat facetiously, but not entirely.
And my brother who was a prosecutor for many years said, "Well, we only prosecute people who are guilty." I said, "But now you're a defense lawyer and you told me that you have a few clients who aren't guilty," and he says, "Well that's true." I said, "Well how can that be?" He said, "Well we had better prosecutors then--way back." See? So, it's a complicated system and it's a far from perfect system and it's trite to say, but we can work on this system because justice is where we want to end up on. And the courts can't do it perfectly.
I rather like the system they had in England for quite a while where people prosecute some of the time and they defend some of the time, and that way they get both points of view. So there, I think there are a lot of things, but I mentioned a few. I think it's an important job trying to improve on it.
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