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It was disappointing that in the entirety of his comments, Professor Bright did not point to one — not even one -– thing the criminal justice system is doing right. Overlooked are the countless instances where police have wisely dropped an investigation, where prosecutors have wisely declined to prosecute, where plea negotiations have reached eminently sensible resolutions, and where those who have committed unspeakable crimes against their fellow human beings were rightly brought to justice. No one believes the system to be flawless or beyond improvement but Professor Bright’s views only underscore the essential points of my essay: that the criticisms of our criminal justice system have been so one-sided, so replete with unrelieved opprobrium, that a balanced case for reform is made more difficult.
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But it is that bad, Bright has been arguing, for decades, mainly on behalf of those people left entirely out of Wilkinson’s survey of criminal justice. To Bright, the judge is describing a criminal justice system that simply does not exist. Yes, Bright contends, there are components of criminal justice systems that are and ought to be tracked by democratic principles. But the Bill of Rights was designed to guarantee individual rights in need of protection from the caprices of the majority. And everywhere, Bright asserts, America’s judges, lawyers, and politicians are failing to ensure those rights are recognized with remedies that address the mistakes built into the system. In Bright’s view, the degree of bleakness in our criminal justice system depends greatly on the color of a person’s skin, the size of their pocketbook, and random chance — a level of arbitrariness that undermines the rule of law beyond recognition. In response to the judge’s article, Bright writes:
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