James Coleman is the John S. Bradway professor of the practice of law, co-director of the Wrongful Convictions Clinic at Duke Law School and director of the Duke Center for Criminal Justice and Professional Responsibility. The Chronicle spoke to him about his perspective on the current state of the criminal justice system.
This interview has been edited for length and clarity.
The Chronicle: Where do you see problems in the criminal justice system?
James Coleman: Well, there are a lot of problems in the system. Some of them are structural problems. Basically every social deal that we have, particularly in urban areas, we try to deal with it through the criminal justice system—and I don't think the system is suited for that.
We have, basically, what's supposed to be a judicial system model, but it's really an administrative system in which we resolve cases through plea agreements—and those are inherently problematic.
We don't have police resources to investigate adequately, so we take shortcuts. The police basically resolve cases by confessions. The closers are the most important police officers because they're the ones when they get a suspect, they bring the person in and they get a confession. And that's really how our investigations end, which means that if the police start out focusing on the wrong person, it's very difficult to kind of get the focus back on the right person.
Then the big elephant in the room is race. Race is kind of overlaid on all of that and the whole system I think is biased toward Black people particularly, but people of color and poor people generally—both in terms of what crimes are charged when crimes are investigated and who gets to sit on juries. All of those things are affected by our race.
TC: You work with the Innocence Project. Would you consider that work to be a symptom of the problem?
JC: I think that's right. The number of wrongful convictions we have is a reflection of how broken the system is. A lot of wrongful convictions are not done intentionally—they are the product of shortcuts, they are the product of lax judicial review, of judges basically viewing their role as part of the prosecution team and not really independently defending the rights of criminal defendants.
It doesn't take very much to convict a person even though the standard is supposed to be proof beyond a reasonable doubt. If you look at a lot of the evidence in cases that we investigate you'd be shocked that a jury would have convicted. But juries tend to be biased toward the prosecution. And if the prosecutor brings a case to trial, you know, if there's any basis for the jury to do so, it will convict.
TC: So you've brought up this question of race in the system disproportionately affecting people of color and poor people of color. What is the historical context for that?
JC: Well, that's a good question. So before the Civil War we had what we would call de jure segregation and discrimination. The law was explicitly racially biased—there were different codes for free Black people and for slaves than there were for White people. So, for the crimes with which Black people could be charged, the punishment for those crimes were different. And then you had all White juries; only White witnesses were allowed to testify. That was the system and then it abruptly changed with the end of the Civil War and the adoption of the 14th Amendment to the Constitution… except that it didn't change. The law changed but the practices and the customs continued. A lot of what we see today is a product of the way our system started out where we sort of, to put it in the current vernacular, we didn't value Black lives. There has never been a period where we could say that that was no longer true, that it changed. We're still in a period where the system does not value Black lives as much as highly as it values White lives. That's just a fact and it's something you could show empirically.
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TC: What parts of the system need immediate change, then? Where should the activists and advocates who are in the street focus their efforts?
JC: I don't like the expression “defund the police” because you end up in a debate about what it means. People who are opposed to reforming the police will characterize it as taking the police out of the community and then you end up arguing about that. But I think that in a lot of areas, we are over-policed. Drugs, for example. We can fill up a criminal court with drug cases 24 hours a day, seven days a week, with no end. Prosecutors don't really set priorities. Police departments don't really set priorities. So basically, they just go out and focus on what often is low hanging fruit. You get a lot of relatively minor cases that flood the system, which means that you don't have a lot of time and resources to focus on more important cases. So I would cut down on the number of criminal offenses that I bring into the criminal justice system. I would formally deal with a lot of the non-violent crimes as administrative matters and not bring them into the criminal justice system at all. Just simply make them violations or something like that, where you have an administrative system set up and you don't have people having to spend time in jail and away from their jobs for minor stuff.
Then, I think, the police need to be better trained, particularly in the use of deadly force. We will allow deadly force to be used as a routine matter. I think some police feel that they're in a hostile environment. They fear for their lives. And so the first thing they do is reach for their gun. We need better-trained police officers so that we avoid that.
One of the things that I noticed recently is how often it is, when there is a major crime, let's say a terrorist attack or something like that, that the police are able to capture the suspect, who, even when they're armed, even in circumstances where they would be justified in killing the person, they capture the person without killing them. And yet a 12-year-old kid in Cleveland with a toy gun gets killed. So the question is, what accounts for that? And I think what accounts for it is that when you have a terrorist suspect, you have much better trained police officers. And so they're much better trained in the use of deadly force, and they end up being able to capture the person and not kill him. That should happen in neighborhoods with far less serious crimes.
Then I would try to attract better lawyers into the system, both as defense lawyers and as prosecutors. And then judges. I think we need independent judges who are really independent and who don't view their role as, you know, putting people in prison.
TC: Given the politics of the current administration, do you think sweeping criminal justice reform as you've described is something that's achievable?
JC: No, and even if Biden is elected in November, I don't think it's going to be easy.
What's interesting today, though, is that I think we probably have the best opportunity that we've had in my lifetime to actually make real changes. Everybody now, for the most part, acknowledges that the police treat Black people differently. We've seen how White people basically weaponized the police against innocent Black people. You watch a guy die for almost nine minutes on film and it's kind of hard to deny what's going on. So I think that we're at a time when we can make some reforms. But I think it's hard work, and it requires people to really think about what makes sense, what's possible, the order in which we change things. It can't just be quick and dirty, take advantage of the moment, and just enact something. It needs to be thoughtful.
I think we need to have a sort of extended discussion about what's the best use of police departments and how we train them for that purpose. Politically, everybody recognizes that this is something that the American people want to do. And the question is how quickly the moment passes. That's really gonna determine what we get done.
TC: What reforms do you see happening in the near future? What tangible change will we see soon?
JC: We probably won't see another incident like Minneapolis where one police officer is mistreating a person and other police officers are standing around. I think we will also see a deescalation of warlike force in some of these communities. I think that what you see on the street will start to look a little different. Maybe more community policing, where people are actually walking in communities and not just rolling up in cars when they get a call. And that's important, symbolically. And then I think there's probably going to be an effort to recruit more people of color to be on some of these forces. That'll probably be the change that people will begin to see. A lot of the same stuff will happen—police will still stop Black people more often than they stop White people, you know, they're going to still bring a lot of low hanging fruit charges and that kind of stuff. But, we may see, at least in the near future, a decrease in that kind of stuff.
The question is whether we will sustain it or whether we will just simply go back to it. I think the greatest reform will be cultural. It will be to change the culture of the police departments. And that's what will have the most lasting impact.
TC: Is there anything else you'd like to add?
JC: One thing that I would like to see is for students to get more involved in some of these issues. I mean, they can get involved in communities. Law students can get involved in the criminal justice system. And we have a lot of students who do, but we also have a lot of students who don't. I think that students represent a huge resource for trying to reimagine what communities ought to look like and how we deal with problems.