Robert P. Burns. Kafka's Law: The Trial and American Criminal Justice. Chicago: University of Chicago Press, 2014. 192 pp. $29.00 (cloth), ISBN 978-0-226-16747-3.
Reviewed by Elizabeth Hull
Published on H-Socialisms (August, 2015)
Commissioned by Gary Roth (Rutgers University - Newark)
Kafka in Jail
In his allegorical novel, The Trial, Franz Kafka described a legal system in which the book’s protagonist, Josef K, is ensnared in and ultimately destroyed by a nameless bureaucracy. Hannah Arendt considered The Trial, published in 1925, a “premonition of the totalitarian regimes to come,” and indeed, as Robert P. Burns notes, the system Kafka parodied “mutated from nightmare to reality” when the Nazis assumed power (pp. 13, 3). In Kafka’s world, there is no self-government, no impartial legal system, no regard for the well-being and dignity of its citizens. The criminal justice system is “unknowable” and “ubiquitous” (p. 4). It suffers from both the “impersonal operations of a mechanical legal system,” on the one hand, and “the exercise of discretionary moral judgment by legal officials,” on the other (p. 38).
Burns, a professor at Northwestern University School of Law, wrote Kafka’s Law: The Trial and American Criminal Justice to illuminate the many ways our own criminal justice system has come to resemble Kafka’s dystopia. The “perspective of a foreign ‘visitor,’” he says, “often allows us to see what we can see least well, that which is closest to us” (p. vii). (The author cites W. H. Auden’s observation that “Kafka is to our era what Dante and Shakespeare were to theirs, the writer who most comprehensively shows us what we are becoming” [p. viii].) Supreme Court Justice Anthony Kennedy acknowledged the parallels between Kafka’s and our criminal justice system, observing that “The Trial is actually closer to reality than fantasy as far as the client’s perception of the system. It’s supposed to be a fantastic allegory but it’s reality” (p. 1).
Kafka’s lament that “it is an extremely painful thing to be ruled by laws that one does not know” is one, Burns says, with which Americans should identify (p. 82). There are at a minimum three thousand federal crimes hidden in the twenty-seven thousand pages of the US Code, he points out, which is why federal statutes furnish the “weakest possible understanding” of the way officials are likely to act (p. 78). In terms of their incomprehension, state and federal laws rival the tax code. Given the surge in offenses, moreover, even attorneys who have dedicated their professional lives to divining the fine points of the criminal law are unfamiliar with the bulk of them. According to legal scholar Willam Stuntz, whom Burns quotes, “If knowledge of the criminal law consists in the ability to make reliable forecasts about what conduct will be punished, it follows that no one knows the law” (p. 81).
In Kafka’s nightmarish regime, almost everyone is guilty (although, like Josef K, they may have been arrested for reasons they never understand). According to Burns this is also true in the United States. More than 70 percent of us have committed offenses for which we could be imprisoned, he says, and only prosecutorial discretion prevents the country’s political and corporate elite from acquiring criminal records.
Kafka’s system is run by functionaries who have no sense of their role in the monstrous system they serve; absent any locus of responsibility such a system embodies what Arendt described as “rule by nobody” (p. 51). Burns does not claim our country is ruled “by nobody,” but he does maintain that it now operates largely independent of “human moral judgment.” Sentencing guidelines, for instance, allow mechanical applications “from afar” without the need for “contextual moral evaluations” (p. 88). In felony courts, which hear as many as sixty indictments per day, “cases are processed, not adjudicated.” Police departments, prosecutors, even the courts now speak of “clearances, case-loads,” and “dockets”—language, Burns says, that “safeguards its referents from ethical evaluation,” and “prompts indifference to the plight of others” (p. 90).
Burns quotes law professor Herbert Packer, who likens the process to “an assembly line conveyer belt down which moves an endless stream of cases, never stopping, carrying the cases to workers who stand at fixed stations and who perform on each case as it comes by the same small but essential operation that brings it one step closer to being a finished product” (p. 92). Since these functionaries exercise no discretion they assume no responsibility. (As the prison guards tell Josef K, they are only “lowly employees” who know nothing.) Even in extreme cases, such as one Burns cites in which a state judge refused to stay an execution because the appeal was inadvertently filed three days late, “prosecutors and courts can simply explain that they are merely following the rules” (p. 89).
By virtue of sentencing guidelines, judges are often prevented from individualizing punishment—resulting in what Burns calls “punishment at a distance.” Penalties are set by politically motivated and distant legislatures that are usually far removed from the particulars of a given case. This signifies, Burns says, “a conviction ... that there cannot be much to say on behalf of ‘those people’ who end up being sentenced” (p. 110).
In The Trial, bureaucrats get the facts dangerously wrong, but that does not matter because the facts themselves are irrelevant. In our criminal justice system, Burns asserts, the facts may not be irrelevant, but their acquisition is not a high priority: “there is no systematic and effective attempt to obtain and present the most reliable evidence.” How could there be, he says, when spending for public defenders has fallen dramatically at the same time the number of felony prosecutions has surged. In criminal litigation, then, “non-investigation” necessarily becomes the norm, “careful gathering of evidence the exception” (p. 106).
Whether evidence, however incomplete, may even be introduced in court is anyone’s guess because rules governing admissibility defy understanding. Burns asserts that judges are free to include or exclude evidence, willy-nilly, “in a chaotic and unprincipled and results-oriented manner” (p. 82), summoning arcane evidentiary rules to prevent one or both parties from presenting probative material. Such manipulation distorts the factual record, of course, and often shields the jury from evidence that is morally significant. (Trial court rulings are rarely reversed, because, as Burns notes, appellate tribunals usually find that their improprieties constitute nothing more than “harmless error” [p. 83].)
In The Trial, Kafka depicts the criminal process as one never progressing beyond the pretrial stage because by then the defendant’s guilt is so well established that no formal trial is necessary. Our own preliminary investigations are similar parodies of justice. They are conducted in secret and dispatched with such efficiency that roughly 95 percent of criminal cases are settled before formal processes begin (p. 87).
We Americans may be as clueless as Josef K. Raised on Law & Order reruns, we may assume that police inform suspects of their constitutional rights, as mandated by the Supreme Court in Miranda v. U.S. (1966), in other words, that, among other things, they have the right to remain silent and to have the assistance of counsel. How naive: according to Burns, the “scholarly consensus is that Miranda’s real world impact is, for the most part, negligible,” and it belongs, with the Fourth Amendment search and seizure law, to the class of (what criminologist Richard Leo refers to as) “mostly symbolic and largely ineffectual constitutional laws” (p. 78).
Among the legally sanctioned strategies police employ to avoid, circumvent, and nullify Miranda, few are as “morally problematic” as the interrogation process. It is during these interrogations, conducted in the backrooms of police stations, that the “illusory protection of our procedural law” is most evident—where, Burns says, “confessions are constructed, not discovered” (p. 102). In these rooms, detectives, having learned from training manuals how to engage in behavior that in any other context would be considered unethical, isolate respondents and then subject them to “relentless questioning,” “psychological manipulation, trickery and deceit” (p. 97). They commonly withhold evidence to which the defense is legally entitled. They lie about the evidence: fingerprints supposedly found at the scene; statements allegedly made by coconspirators. They lie about the law—assuring a suspect, for instance, that if he fatally shook a baby the court will surely consider it an accident. Burns surmises, in fact, that interrogation may present “the most serious problem for adversary theory because it is not only potentially coercive but also routinely fraudulent” (p. 98).
Yet however problematic their conduct, police are pikers compared to prosecutors, who exercise almost limitless discretion, operate with near-impunity, and enjoy popular support as long as they continue winning their cases. (Burns notes that some offices publish individual conviction rates, “in the form of batting averages,” with stickers alongside each name indicating “wins” and “losses” [p. 91].) Skilled prosecutors finesse the system so adroitly that an astonishing 95 percent of their cases end in plea bargains. No single aspect of our criminal justice system is more shameful than our reliance on plea bargaining: this practice is, in the truest sense of the word, Kafkaesque.
Of course no one forces a defendant to cop a plea. Being presumably too poor to retain a lawyer, he could go forward with assistance from a public defender—someone who may be extremely conscientious and well-meaning but so wildly overworked that she has no time to seek exculpatory evidence or otherwise prepare her case. Even if she is convinced her client is innocent, she knows she serves his best interest by encouraging him to confess. What happens if he balks? Woe to anyone who insists on exercising their Sixth Amendment rights. He will probably remain in jail (maybe losing his job in the process). Worse, by demanding a trial, Burns says, he will be “interfering with the ordinary working of the system” and thereby antagonizing the prosecutor, who will retaliate by “charge stacking”—that is, by charging the defendant with multiple overlapping offenses. Instead of five years behind bars, then, he will end up serving a sentence three times as long (p. 118). So the hapless defendant pleads guilty. His punishment ends up being less than it could have been, but meanwhile he is saddled with a criminal record that will bedevil him the rest of his life—imperiling his chances to obtain employment, housing subsidies, educational assistance, even voting rights.
As interpreted, our Fourth Amendment, no less than our pretrial shenanigans, rivals anything Josef K. encountered in Kafka’s netherworld. It prohibits government agents from engaging in unreasonable searches and seizures, in other words, from intruding without a warrant into areas where an individual has a legitimate “expectation of privacy.” By virtue of the Exclusionary Rule, evidence unlawfully obtained is—in theory—inadmissible in court. At least since 1970, however, search and seizure law has become “increasingly convoluted, results-oriented and defensive”; in practice it “cannot be realistically ascertained and is not really understood by ordinary citizens” (p. 78).
Sometimes a search is deemed “reasonable” even without a warrant, because of “exigent circumstances”—the suspects might flee, say, or destroy evidence; maybe the “inevitable discovery” doctrine applies, or the search is authorized for public safety or by an “independent source.” Warrants are not necessary if detectives are searching “open fields,” or frontage beyond a home’s immediate surroundings; or if they are relying on third-party testimony, aerial surveillance, telephone records, curbside garbage, or government informers—“false friends” who agree to wear wiretaps (because, Burns opines, we all “assume the risk” of being betrayed [p. 73]). In the occasional circumstance where a warrant is required, police can easily secure one by assuring a magistrate that there is “probable cause.” Yet whether probable cause exists is anybody’s guess: the answer depends on the “totality of the circumstances” test that even members of the Supreme Court, reviewing the same set of facts, interpret differently (p. 75).
The law governing automobile searches is even more preposterous. Police may stop a car for reasons that are purely pre-textual since, according to the High Court, their motives—including racial profiling!—are irrelevant. Drivers and their passengers may be searched or detained as long as they voluntarily consent—voluntariness also being determined by “the totality of the circumstances” test, a test, moreover, administered by judges who are nothing if not solicitous toward local police. (Given the power differential between police and their targets, it strains credulity to assume most searches are ever “voluntary” in any real sense of the word.) Burns cites the example of a young black woman, disembarking from a plane, who finds herself surrounded by drug enforcement officers. When they request permission to search her bags, she can, of course, just say “no” and walk away. But how likely is that? As Burns says, individuals rarely decline a request even knowing a search will turn up contraband and land them in prison. Besides, the police are under no obligation to inform anyone of their right to walk away, and they almost never do. “The Court’s assumption is completely implausible,” the author says, “and consent is the basis for a very large percentage of the searches and seizures that occur” (p. 76).
That our system is still salvageable, Burns concludes, is due in no small part to the one institution, he says, that at least so far has immunized it from the worst aspects of Kafka’s dystopia: the jury trial. It is “the last remnant of active citizen participation,” and by virtue of its multiple perspectives represents “the world of commonsense moral judgment” (p. 136). Burns goes so far as to assert that “the closest thing we have to the sacral monarch’s power to create the exception to law may not be the executive pardon but jury nullification” (p. 131).
Burns is heartened, as well, by the possibility that our current drop in crime rates will create the “political space” in which to establish large-scale reforms—in fact, he says, quoting Stuntz, “it may be at once the best and most consequential trend in the long and troubled history of American criminal justice” (p. 128). He concedes, however, that “large-bore changes” are difficult (impossible?) to implement, and suggests that people of good will focus instead on small improvements—such as the moratorium on capital punishment imposed by former Illinois governor George Ryan, or the bans on racial profiling and unduly-harsh sentencing that legislators elsewhere have decreed.
Burns suggests several other measures that would upgrade our system, ones that would strengthen our “participatory institutions,” elevate the status of defense counsel, monitor police interrogations, and empower “citizen advocates” to oversee official conduct and review enforcement procedures. He also recommends ways to strengthen our juries: maximize their access to almost all the evidence that has any normative weight; vest them with considerably more sentencing authority; and above all, ensure that they, rather than prosecutors, determine a suspect’s guilt or innocence. Yet accomplishing even these relatively modest reforms, he rues, often depends “on the twitches of the sovereign” (p. 127). He concludes by saying that he is “hopeful” but not “optimistic” (p. 141).
I wish I could fault Burns for exaggerating the parallels between our own and Kafka’s legal systems, but unfortunately there is ample evidence to support his thesis. In fact, I take issue with the author on only one point unrelated to the substance of his work, this being his tendency to barrage the reader with so much information and so many theoretical asides—on the rise and dominance of neo-conservativism, say, or the relationship between religion and punitive public policies, the baleful effects of unlimited campaign spending, or the permutations of neoliberalism—that sometimes his main focus gets sidelined. This minor criticism notwithstanding, Kafka’s Law is an important, provocative, and disturbing book—one that should be read by anyone concerned about the quality of justice in our country. (I am assigning it to my fall semester’s graduate class.)
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Citation:
Elizabeth Hull. Review of Burns, Robert P., Kafka's Law: The Trial and American Criminal Justice.
H-Socialisms, H-Net Reviews.
August, 2015.
URL: http://www.h-net.org/reviews/showrev.php?id=42821
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