Book Review: The Fear of Too Much Justice
Exercising Fair and Impartial Prosecutorial Discretion beyond the Law
Reviewed by Major Hope E. Revelle
There is a fear that embracing the principles of fairness . . . will risk the loss of convictions. But there is far more to be gained by having a system in which all of the participants are fully informed and decisions are based on a thorough exploration of all of the facts of the crime and the circumstances of the person accused of committing it.1
Who Should Read This Book?
Stephen Bright and James Kwak offer a comprehensive criticism of the civilian criminal justice system in their new book, The Fear of Too Much Justice.2 Bright’s extensive criminal law practice and experience representing indigent people facing the death penalty over the past four decades make him the right attorney to provide readers with countless examples of how the civilian system repeatedly falls short of yielding fair and just results.3 The book’s title originates from Justice William Brennan’s dissent in McCleskey v. Kemp, after the Court’s reluctance to address racial discrimination during the sentencing phase of a capital case essentially because such acknowledgment would open a can of worms for other claims of discrimination.4 Writing for the majority, Justice Lewis Powell asserted, “Apparent disparities in sentencing are an inevitable part of our criminal justice system.”5
The book maintains the theme of racial disparity in the criminal justice system as it (1) examines the role of prosecutors, judges, and juries; (2) scrutinizes the influence of money and politics; (3) explores the complexities of mental illness; and (4) proposes tangible solutions to help correct such disparities. Anyone who doubts that the criminal justice system disproportionately punishes the poor and is one of the best examples of institutionalized racism in America should absolutely read this book. The judge advocate (JA) looking to transition into a civilian criminal law practice should read this book, if for no other reason, to explore the significant differences between military justice and criminal practice in the state and Federal systems.6 Any attorney that may become involved in capital litigation should read this book, as the authors focus on death penalty trials and case law. Military trial counsel and defense counsel should maintain their focus on the Manual for Courts-Martial7 and case law.Meanwhile, military justice leaders should also study The Fear of Too Much Justice as they prepare for the imminent shift of prosecutorial discretion from commanders to the Office of Special Trial Counsel (OSTC) while considering the implications of that new autonomy on issues like discovery and bias.
With the impending implementation of OSTC, JAs should also consider the implications of assuming responsibility (and accountability) for traditional prosecutorial discretion over the most serious offenses under the Uniform Code of Military Justice (UCMJ).
Focus Areas for Military Justice Practitioners
This review does not suggest this book offers military justice leaders any new or unknown information. Rather, it proposes areas of focus for supervisors to train, coach, and mentor their subordinate attorneys, paralegals, and legal support staff, based upon the authors’ perspectives shared in The Fear of Too Much Justice. Notably, a significant number of shortcomings cited by the authors demonstrate how, in many ways, the military justice system offers more protections and guarantees of fairness to Service members than the criminal justice system offers to civilians. For example, extensive providence inquiries at guilty pleas minimize the risk of innocent Service members pleading guilty at courts-martial, a serious concern within the civilian sector.8
However, there are also several issues that are consistent across the practice of criminal law, in and out of the military. With the impending implementation of OSTC, JAs should also consider the implications of assuming responsibility (and accountability) for traditional prosecutorial discretion over the most serious offenses under the Uniform Code of Military Justice (UCMJ).9 This is particularly true when fulfilling discovery obligations and preventing biased decision-making.
Discovery
The widely accepted standard for a Government “win” among JAs is a conviction that survives appellate review. However, the authors point out that the caselaw allows convictions to be upheld despite egregious discovery violations.10 The Supreme Court held in United States v. Bagley that the appellant was only entitled to relief upon a showing of a “reasonable probability that, had the [withheld] evidence been disclosed to the defense, the result of the proceeding would have been different.”11 Even more troublesome, the authors point out that “prosecutors who violate [discovery obligations] rarely face discipline.”12
The codification of Brady obligations under Rule for Courts-Martial (RCM) 701(a)(6), which requires immediate disclosure of evidence favorable to the defense, is a critical rule of procedure to ensure a fair trial—and military justice leaders must emphasize it during the training and supervision of their litigation teams.13 The rule’s definition of “evidence favorable to the defense” is broad,14 and the discussion section goes on to encourage the trial counsel to, “exercise due diligence and good faith in learning about any evidence favorable to the defense.”15 While a plain reading of the RCM might suggest there is nothing controversial about the rule, Justice Thurgood Marshall’s dissent in Bagley discussed his concern that the reasonable probability standard set forth by the majority in that case incentivized prosecutors to “gamble” with interpretations of the rules to disclose evidence favorable to the defense.16
Indeed, the book provides several shocking examples of bad-faith Brady violations.17 However, the more nuanced issue that could cause problems within OSTC and military justice shops are the “close calls.” It is critical to mentor new prosecutors, helping them see that the rule should be interpreted in favor of disclosure.18 A zealous prosecutor may wonder why they should disclose something not required by the rules or case law, so long as they are acting in good faith. The book cites a horrific anecdote where a victim committed suicide in 2004 when he learned that DNA evidence exonerated the man he identified as his rapist in 1983.19 If police had refrigerated the victim’s clothing in order to properly preserve the evidence, forensic testing could have exonerated the misidentified defendant, but the Supreme Court denied the appellant relief in 1988, “[holding] that the failure to preserve evidence denies a defendant a fair trial only if the police acted in bad faith.”20 Although this ruling arose within a case evaluating a preservation issue and not Brady, the lesson can still be drawn that good faith does not change the real-world consequences of an unjust conviction that survives appellate review, sending innocent people to prison and closing unsolved criminal investigations. If a case cannot survive full disclosure of evidence that might (or might not) be favorable to the defense, then justice may dictate an acquittal. If leadership does not encourage this perspective on military justice, the young trial counsel could be tempted to “play the odds.”21
From a practical perspective, military justice leaders should also generally encourage open file discovery, and specifically, full disclosure of case files at preferral. A plain reading of RCM 701(a)(1) reveals that trial counsel are not required to provide copies of case files to defense until after referral.22 However, military justice shops often request submission of plea deals before the convening authority refers the case in order to process the action efficiently.23 A defense counsel runs the serious risk of ineffectively representing their client if they advise a Service member to offer a plea of guilty without first reviewing the entirety of the case file in every case.24 Encouraging trial counsel to disclose “early and often” not only prevents potential discovery violations and promotes transparency but may also facilitate earlier offers to plea in certain cases.
The Office of Special Trial Counsel will soon have the authority to approve offers to plea, in addition to the authority to refer charges to court-martial and grant immunity.
Bias
A common feature across all criminal justice systems is the high frequency of cases that result in plea deals.25 The Office of Special Trial Counsel will soon have the authority to approve offers to plea, in addition to the authority to refer charges to court-martial and grant immunity.26 Scholars suggest that such wide discretion can become a harmful source of discrimination and bias within a criminal justice system.27 As the military faces the historic evolution of the UCMJ and the role of the special trial counsel (STC), now is an opportune time to consider how implicit and explicit biases can result in disparate treatment of Service members in the military justice system.
The Fear of Too Much Justicereminds the reader of the historic racism rooted in the law and baked into the American criminal justice system. While the book is organized into chapters addressing separate issues (such as elected judges, mental illness, and juries), every dimension of the system contributes to the disparate treatment of people of color—most notably, Black people.28 The authors trace laws beginning with those that legitimized slavery to laws that “expressly differentiated between crimes committed by and against Blacks and whites,” to Jim Crow, to convict leasing programs, and ultimately to the mass incarceration of Black people today.29 Military justice is certainly not immune from the history of committing atrocities against Black Service members.30 Rather than dismissing this problem as one relegated to the past, we must meet the opportunity to do better now.
Over the past five decades, the military conducted numerous studies that confirm disparate treatment of Black Service members.31 After acknowledging that these inequalities exist within our system, the discussion too often ends with the question, “how can military justice leaders address such injustices beyond sending their counsel to the required implicit bias trainings?” Notably, Bright and Kwak remind the reader that discrimination within criminal justice systems is not only the result of implicit bias—explicit bias is still rampant across our Nation.32 Leaders must stand guard over their offices to ensure counsel, paralegals, and other support staff with explicit biases are not practicing military justice; it is irresponsible to assume that such people do not exist within the ranks.
“[T]here is a limit to what can be achieved through [the authors’ proposed] reforms, which focus on specific types of people and offenses or depend on the use of prosecutorial discretion.”33 The newly minted OSTC leaders should consider how bias may impact their charging decisions, plea negotiations, and sentencing recommendations. Implicit bias training often focuses on the negative bias against people of color, but also prevalent in the criminal justice system is a bias that favors victims with whom prosecutors identify.34 Leaders should train counsel to be mindful not only of their negative bias but also the instinct to more easily empathize with victims to whom they may more closely relate. The authors plainly remark that, “[r]ace has always mattered” in criminal cases, and even without a statistical analysis, that fact, “was obvious to people who closely observed Georgia’s criminal courts.”35 It remains obvious to criminal law attorneys today.
Finally, the authors highlight the “trial penalty” as a common source of injustice resulting from unrestrained prosecutorial discretion.36 The American Bar Association (ABA) published a 2023 Plea Bargain Task Force Report that outlines fourteen principles “to guide plea practices . . . based on the fundamental [c]onstitutional right to trial.”37 The ABA’s report supports the authors’ assertions that the disparity in bargaining power between a prosecutor and defense often leads to unjust results at both guilty pleas and contested trials.38 The Office of Special Trial Counsel should consider how to implement these principles within its practice of plea negotiations to prevent unfair tactics and create uniformity across jurisdictions.
The military procedure for guilty pleas allows defense counsel to present individualized “life histories of their clients and propose sentences that respond to their particular needs,” as opposed to the civilian “meet ‘em and plead ‘em” sessions Bright and Kwak describe.
We Can Always Welcome More Justice
Because of their unmatched authority and power, it is not enough for a prosecutor to simply play by the rules. Justice requires integrity, empathy, and humility from the attorneys who practice criminal law. The good news is that the military already employs several strategies that the authors offer to promote justice. For instance, the military typically handles drug use and possession cases through nonjudicial punishment and administrative separations, offering free substance abuse treatment to Service members.39 The military procedure for guilty pleas allows defense counsel to present individualized “life histories of their clients and propose sentences that respond to their particular needs,” as opposed to the civilian “meet ‘em and plead ‘em” sessions Bright and Kwak describe.40
Nonetheless, the pursuit for more justice is a perpetual duty that, as illustrated by Bright and Kwak, extends beyond case law and the Rules for Professional Conduct:
The [prosecutor] is the representative not of an ordinary party to a controversy, but a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but in that justice shall be done . . . . It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.41
As military justice leaders face the transition toward a more civilianized criminal system, they should study the lessons from seasoned civilian practitioners like Stephen Bright and instill them in young practitioners.42 Justice is not as simple as following the rules or applying precedent—it requires a moral compass to complement legal and ethical duties. In the pursuit of justice, practitioners should remember that they may always choose to be more ethical and more compassionate than is required under the law. TAL
MAJ Revelle is a student in the 72d Graduate Course at The Judge Advocate General’s Legal Center and School in Charlottesville, Virginia.
Notes
1. Stephen B. Bright & James Kwak, The Fear of Too Much Justice: Race Poverty, and the Persistence of Inequality in the Criminal Courts 258 (2023).
2. Id.
3. See Stephen B. Bright, Yale L. Sch., https://law.yale.edu/stephen-b-bright (last visited Oct. 24, 2023). Notably, Bright is also an early mentor of public interest lawyer Bryan Stevenson. See Bryan Stevenson, Just Mercy 6 (2014).
4. Bright & Kwak, supra note 1, at 10-11 (citing McCleskey v. Kemp, 481 U.S. 279, 312, 315, 315 n.38, 317 (1987)).
The Court next states that its unwillingness to regard petitioner’s evidence as sufficient is based in part on the fear that recognition of McCleskey’s claim would open the door to widespread challenges to all aspects of criminal sentencing. Taken on its face, such a statement seems to suggest a fear of too much justice.
McCleskey, 481 U.S. at 339 (Brennan, W., dissenting).
5. See McCleskey, 481 U.S. at 312.
6. E.g., bail and bond procedures, elected prosecutors and judges, court-appointed defense attorneys, probation and diversion programs. See generally Bright & Kwak, supra note 1.
7. Manual for Courts-Martial, United States (2019) [hereinafter MCM].
8. Bright & Kwak, supra note 1, at 25 (“The National Registry of Exonerations reports that, as of 2015, 15 percent of people who had been exonerated—261 of 1,702—pleaded guilty. Eight percent of them pleaded guilty to murder . . . .”) (citing Nat’l Registry of Exonerations, Innocents Who Plead Guilty 1 (2015)).
9. See generally Exec. Order No. 14103, 88 Fed. Reg. 50535, annex 2 (July 28, 2023) (“[T]he National Defense Authorization Act for Fiscal Year 2022 made historic reforms to the military justice system, including the unprecedented transfer of prosecutorial discretion from commanders to independent, specialized counsel to prosecute certain covered offenses, including sexual assault and domestic violence. . . .”).
10. Bright & Kwak, supra note 1, at 36.
11. United States v. Bagley, 473 U.S. 667, 668 (1985).
12. Bright & Kwak, supra note 1, at 37 (citing Bennett L. Gersham, Reflections on Brady v. Maryland, 47 S. Tex. L. Rev. 685, 689, 715 (2006)).
13. See MCM, supra note 7, R.C.M. 701(a)(6) (2019).
14. See id.
Trial counsel shall, as soon as practicable, disclose to the defense the existence of evidence known the trial counsel which reasonably tends to – (A) Negate the guilt of the accused of an offense charged; (B) Reduce the degree of guilt of the accused of an offense charges; (C) Reduce the punishment; or (D) Adversely affect the credibility of any prosecution witness or evidence.
Id.
15. MCM, supra note 7, R.C.M. 701(a), Discussion.
16. Bright & Kwak, supra note 1, at 36 (citing United States v. Bagley, 473 U.S. 667, 693-703 (1985) (Marshall, J., dissenting)).
17. Id. at 38-39 (describing the efforts to reform discovery laws in Texas after Michael Morton was exonerated after spending more than twenty years in prison for the murder of his wife because the prosecutor withheld exculpatory evidence at trial).
18. See MCM, supra note 7, R.C.M. 701(e); UCMJ art. 46 (2019) (mandating that both parties are granted equal access to interview witnesses and inspect evidence). The equal access mandate is another example of how military procedure promotes fairness, illuminated by the stories in Bright and Kwak’s book. See also ABA Comm. on Ethics & Pro. Resp., Formal Op. 09-454, at 4 (2009) (“In particular, Rule 3.8(d) is more demanding than the constitutional case law, in that it requires the disclosure of evidence or information on a trial’s outcome. The rule thereby requires prosecutors to steer clear of the constitutional line, erring on the side of caution.”).
19. Bright & Kwak, supra note 1, at 40-41 (citing Marc Bookman, Does an Innocent Man Have the Right to be Exonerated?, The Atlantic (Dec. 6, 2014), https://www.theatlantic.com/national/archive/2014/12/does-an-innocent-man-have-the-right-to-be-exonerated/383343).
20. Bright & Kwak, supra note 1, at 41 (citing Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988)) (emphasis added).
21. Bright & Kwak, supra note 1, at 36 (citing United States v. Bagley, 473 U.S. 667, 693-703 (1985) (Marshall, J., dissenting)).
At best, this standard places on the prosecutor a responsibility to speculate, at times without foundation, since the prosecutor will not normally know what strategy the defense will pursue or what evidence the defense will find useful. At worst, the standard invites a prosecutor, whose interests are conflicting, to gamble, to play the odds, and to take a chance that evidence will later turn out not to have been potentially dispositive.
Bagley, 473 U.S. at 701 (Marshall, J., dissenting).
22. See MCM, supra note 7, R.C.M. 701(a)(1).
23. Cf. Bright & Kwak, supra note 1, at 258 (describing the unfair results in situations “when prosecutors offer plea bargains that must be accepted or rejected quickly while refusing to disclose any information about the case”).
24. U.S. Dep’t of Army, Reg. 27-26, Rules of Professional Conduct for Lawyers r. 1.1 (28 June 2018) (“Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners.”).
25. See Colonel Jeff A. Bovarnick, Plea Bargaining in the Military, 27 Fed. Sent. Rep. 95, 95 (“With an estimated 90 percent of courts-martial resulting in guilty pleas, plea bargaining procedures primarily in the form of pretrial agreements are critical to the fair administration of military justice and essential to the overall court-martial process.”); see also Bright & Kwak, supra note 1, at 6 (“97 percent of [F]ederal convictions and 94 percent of state convictions . . . are resolved with guilty pleas.”) (citing Missouri v. Frye, 566 U.S. 134, 143 (2012)).
26. See generally Exec. Order No. 14103, 88 Fed. Reg. 50535, annex 2 (July 28, 2023).
27. See Robert J. Smith & Justin D. Levinson, The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion, 35 Seattle U. L. Rev. 795 (2012).
From the arrest of a suspect to the sentencing of a defendant, consider the range of discretion-based decisions that prosecutors must make on a daily basis: Should an arrested citizen be charged with a crime? … What crime or crimes will be charged? Should charges be dropped? Should a plea bargain be offered or negotiated? Which prosecuting attorney will prosecute which alleged crime? What will the trial strategy be? Will minority jurors be challenged for cause or with peremptory challenges? What sentence will be recommended?
Id.
28. See generally Bright & Kwak, supra note 1.
29. See id. at 217-19.
30. See Betsy Reed, Group Seeks Clemency for 110 Black Soldiers Convicted in 1917 Houston Riot, Guardian (Dec. 20, 2021), https://www.theguardian.com/us-news/2021/dec/20/clemency-110-black-soldiers-1917-houston-mutiny (describing efforts to fight for the posthumous clemency of more than one hundred Black Soldiers who were denied any semblance of due process in the largest murder trial, a court-martial, in U.S. history following a race-motivated riot in the Jim Crow era in Houston, Texas, after which nineteen of the Soldiers were hanged).
31. See generally U.S. Dept. of Def., Internal Review Team on Racial Disparities in the Investigative and Military Justice Systems (2022).
32. Bright & Kwak, supra note 1, at 9 (citing five capital cases in Georgia where “defense lawyers referred to their own clients with racial slurs before the jury”) (citing Stephen B. Bright, Discrimination, Death and Denial: The Tolerance of Racial Discrimination in the Infliction of the Death Penalty, 35 Santa Clara L. Rev. 433 (1995)).
33. Id. at 253.
34. Id. at 10-11 (discussing how the attorneys in McCleskey v. Kemp were unsuccessful in convincing the Supreme Court of an injustice when they presented statistics proving “that [Georgia] prosecutors sought the death penalty primarily in cases where the victims were white, even though Black people were the victims of over 60 percent of murder cases in the state, and that death was more likely to be imposed in cases involving white victims and Black defendants”) (citing McCleskey v. Kemp, 481 U.S. 279, 286-287 (1987); David C. Baldus et al., Equal Justice and the Death Penalty: A Legal and Empirical Analysis (1990)).
35. Id. at 10.
36. See generally Bright & Kwak, supra note 1, at 19-25.
37. Thea Johnson, American Bar Association 2023 Plea Bargain Task Force Report 9 (2023).
38. See generally id.; see also Bright & Kwak, supra note 1, at 23 (“As the Supreme Court has observed, people who take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate because the longer sentences exist on the books largely for bargaining purposes.”) (citing Missouri v. Frye, 566 U.S. 134, 143 (2012)). Note, the authors incorrectly cite an article in The Guardian in the book, but this quote originates in Frye.
39. Although Service members receive treatment through the Army Substance Abuse Program after illicit drug use is discovered, this does not automatically curtail punishment. Unless a Service member self-enrolls before detection of illicit drug use, the initiation of separation for that use is mandatory. See generally U.S. Dep’t of Army, Reg. 600-85, The Army Substance Abuse Program (23 July 2020). Considering the high rate of drug use among Service members and Army-wide retention problems, perhaps drug diversion programs should be considered in lieu of administrative actions. See Bright & Kwak, supra note 1, at 252-56 (advocating for prosecutors to “[decline] to arrest or prosecute people where it would serve no purpose” and highlighting the “over prosecution of drug offense”).
40. Bright & Kwak, supra note 1, at 258.
41. Berger v. United States, 295 U.S. 78, 88 (1935).
42. See also Bryan Stevenson, Just Mercy (2014). Bryan Stevenson is another renowned criminal justice advocate, and his novel provides a provoking, yet hopeful, firsthand perspective of representing indigent clients in the civilian criminal justice system.