The law is nuance. Even seemingly simple legal questions can require a lot of reading just to make an educated guess. Pages rife with archaic terms and counter-intuitive thinking can then list exceptions to exceptions that trap unwary practitioners. The only wholly accurate answer a lawyer can ever really offer is, “it depends.”
No one faults news readers for using their time on things besides legal nuance. But lack of nuance means imprecision, and imprecision means inaccuracy. Without a legal education (and sometimes, where the legally educated have limited experience), legal reporters will occasionally misconvey the law. The bias inherent in these inaccuracies is somewhat understandable, but it is a bias we must remain mindful of.
Space and time limits can shave essential but subtle concepts from final copy. Protecting against printing risks can also mean deliberately erroneous language. An editor educated me, for example, that reporters change the legally accurate “not guilty” plea to a non-existent plea of “innocent” so a freak typo doesn’t leave the “not” out of guilty and create a different problem.
Laziness and poor to or absent training can also trigger popular misconceptions, especially in an age where any “blogger” can self-identify as a “journalist.” And, sometimes, even good faith professionals just get it wrong.
For example, a respected reporter recently wrote an accurate piece about a constitutional challenge to a federal conviction. But the headline, “He sold pills and arranged two murders. He doesn’t deserve leniency, judge rules,” talked about a court denying leniency, even though leniency had nothing to do with anything.
That headline’s first error was convoluting constitutional criminal procedure (effective assistance of counsel) with lenient sentencing. The headline’s second error was suggesting that post-sentencing leniency is even possible in federal court. But the visceral revulsion against defendants trying to game for unwarranted lenity is all that one gets from that headline.
Even the headline writer can be forgiven for misunderstanding an ancient field of law that baffles some seasoned litigators. I am profoundly concerned, though, that journalistic inaccuracies like this create and feed misinformation that helped to drive, and still protects, our sadistic and expensive sentences.
There isn’t one solution. Expert rants can help, offering thoughtful readers perspectives they might not have considered. But op-eds are only so effective, and they are worthless unless read and discussed. It is a much safer bet that average Americans will skip the complex criminal procedure, and use their limited minutes instead on family and reality tv.
Journalists (including headline writers) could invest more time understanding criminal justice. Any number of lawyers love to be quoted, or even help with off-the-record input about complicated criminal justice issues. But those time and space constraints work against deeper analysis of these often boring subjects. A legal “brief” is not brief, even to lawyers, and most people have a different life to live.
And there is the greatest challenge in any solution: a knowledgeable electorate. That means everyone taking some extra effort to understand. But sadly, my experience suggests this might be the least likely outcome.
Only a few law nerds will ever find legal reading pleasurable. But that does not excuse anyone from remedial civics knowledge. Knowledge that cases get reversed when rights are violated, not over some fictional “technicality.”
Knowledge that criminal defendants have the same number of rights that you and I have, and when one loses a right, we all lose that protection. And knowledge that drug treatment, mental health care, and job skills most cost-effectively reduce re-offenses, not long prison terms.
“Criminal justice” is too broad a term to rightly define, and it is too complex to grasp with a quick skim. But our understandings of punishments, recidivism, and the possibility for redemption — and how we pay for each — cannot be reduced to a children’s rhyme about doing time.
We have to invest time to understand some very complex questions about keeping ourselves safe, without wasting more lives and tens of billions of dollars annually.
Jay Hurst is am attorney based in Lexington and Durham, N.C. He concentrates on criminal sentencing, appeals, post-conviction matters and the Freedom of Information Act. Reach him at firstname.lastname@example.org.