This year, I’m working on a book about injustice in the legal system. (I am on a research fellowship at the Murphy Institute at Tulane University, in New Orleans, so I can write things like this.) Basically, I plan to put together all my main thoughts about what is screwed up in the “justice system”. Here is a brief preview. I have two ideas:

The legal system is crazily unjust.

We should put justice ahead of law, tradition, and authority.

Point 1: Here are my favorite examples of legal injustices:

Unjust laws, of course. The biggest examples are drug laws & immigration laws. My main idea here is that legal punishment constitutes a rights-violation, unless there is some pretty strong justification for it (like, the person violated someone else’s rights). That’s because there is a moral right not to be coercively and intentionally harmed. Legal representation is extraordinarily expensive to normal people. I think this is an injustice by the state, because people often have to pay these costs in order to avoid being unjustly harmed (even more) by the state. Plea bargaining is obviously unjust and a violation of the right to trial by jury. Almost no cases (perhaps 5-10%) get trials anymore, because prosecutors threaten to charge the defendant with lots of extra crimes if he insists on a trial. Almost all convictions are now secured by this form of blackmail. America is an insanely punitive country, with the highest incarceration rate in the world by far, mainly due to handing out such long prison sentences, and for so many things. Prison abuse is rampant, and incarceration often makes criminals worse, rather than rehabilitating anyone. There are probably a lot more false convictions than you realize. This is partly because we have some obviously bad methods of gathering evidence (e.g., threatening suspects to make them confess, asking witnesses leading questions, bribing other criminals for testimony). Eyewitness testimony is much less reliable than people think, but, as I understand it, defense lawyers aren’t allowed to argue that fact in court. In spite of all that, the government is incredibly lenient toward its own. If a government official commits a major crime, unlike you, they will probably get a slap on the wrist or else get off completely.

Point 2: Here are the ways I think people should put justice first:

Jury nullification, obviously. Police should refuse to enforce unjust laws, e.g., refuse to arrest drug users. Judges should refuse to sentence people under unjust laws, or give them very light sentences. They should not sentence people to jail time for nonviolent offenses, even if there is a law that tells them to do so. Lawyers should only pursue legal outcomes that they actually believe to be just (or less unjust than the alternatives). E.g., one should not try to secure acquittal for a client who is guilty and deserves to be punished; one should not file a lawsuit that one thinks lacks merit; and obviously a prosecutor should not prosecute someone for breaking an unjust law.

There are some arguments against these things, but they are extremely bad. These are my main reasons for these things:

First argument: In general, you shouldn’t knowingly contribute to hurting people unjustly. The moral reason not to do so is proportional to how much unjust harm you would cause. Typically, the unjust harms of the legal system are very large. So there would have to be a pretty great reason for going along with them.

Second argument: The purpose of the legal system is to pursue justice. That’s why we call it “the justice system”, we have symbols for justice all around, etc. But it’s irrational to value a means over the end for which it was designed. So it would be irrational to value fidelity to law over justice.

Now a question I have: What should such a book be called?