Justice  /  Book Review

Why Aren’t Cops Held to Account?

Decades of Supreme Court decisions have converted qualified immunity from a commonsense rule into a powerful doctrine that deprives people injured by police misconduct of recourse.

The Fear of Too Much Justice could serve as the title for any number of books about the administration of criminal justice in the United States today. Both of the books under review here seek to understand why the system serves so many so poorly. The one that actually bears the title, by Stephen B. Bright and James Kwak, examines the myriad ways in which the search for justice unravels once someone is charged with a crime, beginning with the nearly unlimited discretion accorded prosecutors to shape the case and exploit the advantages they have in resources and access to information. The other, Joanna Schwartz’s Shielded: How the Police Became Untouchable, explores why the police are so rarely called to account for misconduct despite the theoretical availability of tools to punish bad actors and to provide redress to their victims.

The narrative that emerges from these two books is of a long string of promises unfulfilled by indifferent politicians or broken by ambitious prosecutors and hostile judges. That there is little overlap between the two, with their separate focuses on criminal process and civilian redress, makes the picture all the more dispiriting: this is a system that disserves the innocent and the guilty alike.

Had Stephen Bright chosen to tell the stories in The Fear of Too Much Justice in the first person, he would have had an ample supply to choose from. He is a well-known and much-honored capital defense lawyer who has argued and won four death penalty cases at the Supreme Court. In fact, without identifying himself as a participant, he discusses one of his notable victories, a 2016 case that resulted in the overturning of a Georgia death sentence due to the prosecution’s removal of every Black potential juror from the murder trial of a Black defendant. The vote was 7–1, with Chief Justice John Roberts writing for the majority and Justice Thomas the only dissenter. Bright has also taught as a visiting lecturer at numerous law schools, including Yale, where his coauthor, James Kwak, a former law professor himself, was his student.

The racial gamesmanship that is common to jury selection is one of the many problems The Fear of Too Much Justice identifies. Given that 90 percent of all criminal cases are resolved by guilty pleas and therefore never go to trial, it may not even be the worst problem. But it is emblematic of a major theme of the book: the divergence between how the criminal justice system looks on paper and how it works in practice. Bright won the Georgia jury case on the basis of the Supreme Court’s ruling thirty years earlier in Batson v. Kentucky, which required prosecutors to explain their use of peremptory jury strikes if the defense lawyer objected that they were being deployed for reasons of race. Batson empowered the trial judge to disallow a strike for which the prosecution could not provide a plausible nonracial reason.