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This article focuses on how flawed judgments about character contribute to fundamental problems in the American criminal justice system. The discussion begins by exploring how prohibitions on the use of character evidence to prove misconduct are riddled with limitations that undermine the purpose of the prohibition. Discussion then turns to the way that misconceptions about character by judges, prosecutors and parole board members have contributed to problems such as mass incarceration and racial injustice. The analysis concludes with strategies for reform designed to make the system less punitive, and more rehabilitative, equitable, and cost-effective.
Introduction.......................355
I. Character Evidence...........................357
A. The General Ban on Character Evidence...............357
B. Limitations on the Character Evidence Prohibition.............359
C. Proposals for Reform.........................363
II. Character and Punishment..........................365
A. The Punitive Tum in Criminal Justice..........................365
B. Character in Sentencing..........................369
C. Deterrence and Incapacitation..........................374
D. Remorse..........................377
E. Prosecutorial Power..........................381
III. Parole..........................384
A. The Injustice of the Current Process..........................385
B. Procedural Inadequacies..........................386
C. Inadequate Reentry Programs..........................387
D. Race And Class Bias..........................388
E. Racial Disparities..........................388
F. Class Disparities..........................389
G. Racial Bias..........................389
H. Race and Class Bias in Drug Enforcement..........................392
I. Jury Selection..........................393
J. Challenges in Combatting Racial and Class Bias..........................395
IV. Strategies For Reform..........................396
A. Character Assessment..........................396
B. Punishment..........................398
C. Prosecutors..........................402
D. Parole and Reentry..........................405
E. A Commitment to Justice..........................406
INTRODUCTION
The role of character in the American criminal justice system is complex and contested. In principle, this nation's criminal law is committed to punishing conduct, not character. Our justice system aims to hold individuals accountable not for who they are but for what they have done. But in practice, views about character often influence decisions about guilt, punishment, and parole in ways that are unjust and counterproductive. According to the World Justice Project, the United States ranks 23rd among 31 peer countries on a host of criminal law issues, including fairness for the accused and the effectiveness of the correction and legal process.1 Although the United States accounts for just five percent of the world's population, it houses over 20 percent of the world's prisoners.2 Ideas about character, its effect on punishment, are at least part of the problem.
For the millions of Americans who pass through the criminal justice system, and whose families, neighborhoods, and racial groups are devastated by its injustices, our...