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The Fear of Too Much Justice: Race, Poverty, and the Persistence of Inequality in the Criminal Courts
A legendary lawyer and a legal scholar reveal the structural failures that undermine justice in our criminal courts
“An urgently needed analysis of our collective failure to confront and overcome racial bias and bigotry, the abuse of power, and the multiple ways in which the death penalty’s profound unfairness requires its abolition. You will discover Steve Bright’s passion, brilliance, dedication, and tenacity when you read these pages.” —from the foreword by Bryan Stevenson
Glenn Ford, a Black man, spent thirty years on Louisiana’s death row for a crime he did not commit. He was released in 2014—and given twenty dollars—when prosecutors admitted they did not have a case against him.
Ford’s trial was a travesty. One of his court-appointed lawyers specialized in oil and gas law and had never tried a case. The other had been out of law school for only two years. They had no funds for investigation or experts. The prosecution struck all the Black prospective jurors to get the all-white jury that sentenced Ford to death.
In The Fear of Too Much Justice , legendary death penalty lawyer Stephen B. Bright and legal scholar James Kwak offer a heart-wrenching overview of how the criminal legal system fails to live up to the values of equality and justice. The book ranges from poor people squeezed for cash by private probation companies because of trivial violations to people executed in violation of the Constitution despite overwhelming evidence of intellectual disability or mental illness. They also show examples from around the country of places that are making progress toward justice.
With a foreword by Bryan Stevenson, who worked for Bright at the Southern Center for Human Rights and credits him for “[breaking] down the issues with the death penalty simply but persuasively,” The Fear of Too Much Justice offers a timely, trenchant, firsthand critique of our criminal courts and points the way toward a more just future.
“An urgently needed analysis of our collective failure to confront and overcome racial bias and bigotry, the abuse of power, and the multiple ways in which the death penalty’s profound unfairness requires its abolition. You will discover Steve Bright’s passion, brilliance, dedication, and tenacity when you read these pages.” —from the foreword by Bryan Stevenson
Glenn Ford, a Black man, spent thirty years on Louisiana’s death row for a crime he did not commit. He was released in 2014—and given twenty dollars—when prosecutors admitted they did not have a case against him.
Ford’s trial was a travesty. One of his court-appointed lawyers specialized in oil and gas law and had never tried a case. The other had been out of law school for only two years. They had no funds for investigation or experts. The prosecution struck all the Black prospective jurors to get the all-white jury that sentenced Ford to death.
In The Fear of Too Much Justice , legendary death penalty lawyer Stephen B. Bright and legal scholar James Kwak offer a heart-wrenching overview of how the criminal legal system fails to live up to the values of equality and justice. The book ranges from poor people squeezed for cash by private probation companies because of trivial violations to people executed in violation of the Constitution despite overwhelming evidence of intellectual disability or mental illness. They also show examples from around the country of places that are making progress toward justice.
With a foreword by Bryan Stevenson, who worked for Bright at the Southern Center for Human Rights and credits him for “[breaking] down the issues with the death penalty simply but persuasively,” The Fear of Too Much Justice offers a timely, trenchant, firsthand critique of our criminal courts and points the way toward a more just future.
357 pages, Kindle Edition
Published June 20, 2023
About the author
Stephen Bright
9 books3 followersStephen B. Bright is an American lawyer known for representing people facing the death penalty, advocating for the right to counsel for poor people accused of crimes, and challenging inhumane practices and conditions in prisons and jails.
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Displaying 1 - 24 of 24 reviews
July 28, 2023
The Fear of Too Much Justice is an eye opening look at the ways the court system fails people in obvious and not so obvious ways. From the ways that private probation companies make money on trivial violations to sentencing people to death when there are discrepancies in evidence, Bright and Kwak do a great job breaking down the problems.
June 11, 2023
Because of a fear of too much justice, we have a criminal legal system that suffers in all respects from too little. That is the theme throughout this detailed book that goes through so many different aspects of the legal system to show both how they lack any semblance of justice and cause far more harm than they stop. This is a must-read book for anyone who cares about ever actually achieving a fair and just system.
April 27, 2024
A pretty good summary of why our criminal justice system is so effed up. It is excellent in conveying essentially legal stories to nonlawyers. It is recent and is a good update to many stories previously told.
But it basically is that, a retelling of the same awful stories. If you have read The New Jim Crow, you may not find a whole lot of value in this book. Ditto if you have read any similar book in the last 10-15 years!
But it basically is that, a retelling of the same awful stories. If you have read The New Jim Crow, you may not find a whole lot of value in this book. Ditto if you have read any similar book in the last 10-15 years!
June 28, 2023
To see a full review check it out here.
A great introduction to the issues of racism and classism in the criminal justice world. I just wish the authors had gone further with solutions.
A great introduction to the issues of racism and classism in the criminal justice world. I just wish the authors had gone further with solutions.
2023
October 9, 2025Non-fiction November TBR
📱 Thank you to NetGalley and The New Press
📱 Thank you to NetGalley and The New Press
Did Not Finish
July 30, 2024I was excited about this book because it's a great topic and I listened to some fascinating interviews with the author. Unfortunately, it was hard for me to stay engaged and I haven't picked it back up in about 10 months, so I think I need to face it that this is a DNF.
The book was very data heavy and may have been more engaging (for me) if it had been structured differently. Instead of talking about different aspects of the criminal justice system's failings and then drawing in the same people/cases to illustrate the different examples, telling the stories of the people together might have worked better. I kept losing the thread of the individual people's stories among all the data.
TLDR: Great research and important topic, but I preferred listening to podcast interviews with the authors where they hit the highlights.
The book was very data heavy and may have been more engaging (for me) if it had been structured differently. Instead of talking about different aspects of the criminal justice system's failings and then drawing in the same people/cases to illustrate the different examples, telling the stories of the people together might have worked better. I kept losing the thread of the individual people's stories among all the data.
TLDR: Great research and important topic, but I preferred listening to podcast interviews with the authors where they hit the highlights.
March 13, 2026
Many Republicans believe that white people experience more discrimination than black people. That belief is certainly untrue when it comes to the criminal justice system. This book documents the pervasive discrimination of that system against people of color and the poor.
Steven Bright has devoted his legal career to representing the poor and seeking justice in a system "that treats you better if you are rich and guilty than if you are poor and innocent." James Kwak is a former law professor who was a student of Bright's.
The most shocking form of injustice is when innocent defendants are convicted and sentenced to death. At least 185 people with death sentences were ultimately found innocent between 1973 and 2020. Some of them had spent decades in prison.
What we don't know is how many innocent individuals have been executed because there was no DNA evidence in their cases, which is true the majority of the time. "In cases where DNA testing is not possible, there is no reason to believe that the error rate is different."
What we do know is that prosecutors routinely exclude blacks from juries when the accused is black. So long as prosecutors offer a race-neutral reason, their challenges are upheld.
When the Supreme Court upheld capital punishment by 5-4 in the "McCleskey" case (1987), the decision rejected strong evidence of racial disparity in the death penalty by saying there are disparities in prison sentences as well. To require nondiscrimination in capital cases we would lead to an avalanche of challenges to prison sentences. The majority had "a fear of too much justice," wrote Justice Brennan in dissent.
"It is never wrong to remedy discrimination," write Bright and Kwak. Justice is supposed to be blind so defendants' poverty and race do not work against them. That's not how the system works, however, and the authors challenge the system to live up to its own ideals.
Prosecutors are typically white (95% of elected prosecutors nationwide in 2019), and they have broad discretion. It is up to prosecutorial discretion whether to charge someone with a misdemeanor or a felony, how many charges to bring, and what sentence to propose. Judges routinely go along with the sentence in a plea agreement.
One power is to severely punish defendants who exercise their right to a trial instead of pleading guilty. This is called the trial penalty. It costs some their lives when they are convicted at trial and the prosecutor seeks the death penalty instead of the prison sentence he had previously offered as a plea bargain.
Due to the trial penalty, guilty pleas rather than jury trials are the disposition in more than nine out of ten criminal cases. Thus, the prosecutor, who is hardly a neutral fact finder, is effectively the judge and jury.
Defendants have precious little negotiating power. Plea bargains are "effectively coerced," including from an unknown number of innocent defendants who don't want to risk, say, life in prison or the death penalty if convicted at trial. In other words, pleading guilty is not voluntary when it is made under the extreme duress of a sentence that can be three times longer if the individual does not plead guilty.
Readers should ask themselves what they would do if they were innocent but couldn't afford a good lawyer. Suppose the prosecutor offers a deal of one year in prison or the threat of life imprisonment if you were convicted at the jury trial you have the constitutional right to ask for. Would you roll the dice knowing that most defendants lose? One study found that 15% of prisoners who were later exonerated had pled guilty.
Truth and justice are not the top priorities in a system that puts excruciating pressure upon the innocent to plead guilty by severely punishing them for exercising a constitutional right.
Prosecutors enjoy many advantages in the handful of cases that go to trial. One of them is the power to offer a reduced sentence to a witness in return for testimony against an accomplice or a former cellmate.
Informants facing charges have a strong incentive to tell the prosecutor what he wants to hear. Informants, who have been known to lie under oath even about being promised leniency in their own cases, are a significant cause of wrongful convictions.
This use of in-custody informants sometimes leads to lesser sentences for criminals who have greater culpability than for those with lesser. For example, the person who pulled the trigger in a robbery and murder, but who testifies against a confederate, may serve considerably less time than the getaway driver.
Another advantage prosecutors have is access to all the evidence, which they do not have to disclose to the defense in some states unless it is favorable to the accused. That Brady disclosure requirement, however, is not well enforced, and failure to disclose such evidence does not automatically result in a new trial.
In civil cases, both sides know who the witnesses are before trial and have a chance to depose them. But not in criminal trials. A rule to fully disclose all evidence before trial eliminates arbitrary and self-serving prosecutorial decisions about which evidence is exculpatory.
When a prosecutor makes an improper closing argument by violating various rules, the appellate courts often nonetheless uphold guilty verdicts by claiming the error was not dispositive.
A study of 2,400 cases of individuals who were wrongly convicted found that the prosecutors faced discipline only 4% of the time. The authors advocate reforms to restrict prosecutorial discretion and to provide accountability for misconduct.
Another area ripe for reform is the right to a lawyer. About four out of five defendants have appointed lawyers. If the appointed counsel is incompetent, overworked, or drunk, the defendant is unlikely to be properly represented. "An accused person's rights are only those that his lawyer asserts."
Even in capital cases, appointed counsel may be unqualified to represent their clients. Under SCOTUS precedents, however, having manifestly incompetent counsel may not be sufficient grounds for overturning convictions — even in capital cases.
Incompetence isn't the only problem. In some states, no counsel is provided to most people charged with misdemeanors. Other accused persons may sit in jail for weeks or months before an attorney talks to them.
After conviction, most people have no right to legal
representation for appeals at public expense. Consequently, prisoners frequently file their own appeals.
Chronic underfunding of the defense services by states and counties prevents even competent attorneys from spending needed time and effort with the defendants they represent. "The Supreme Court left the right to counsel to state and local governments, which generally see little reason to expend resources on behalf of poor people, let alone poor criminal defendants."
Another source of racial bias is the timeworn practice of excluding blacks from juries. Explicit exclusion used to be embodied in law in southern states. In modern times, exclusion is nearly as systematic. Nowadays, prosecutors claim nonracist reasons for using peremptory challenges to remove all black members of a jury pool. Those purported reasons are often not applied to white jurors.
Why does it matter? The authors contend that all-white juries tend to treat black defendants more harshly than white defendants.
The SCOTUS has permitted the continued whitewashing of juries. The "Swain" decision of 1965 approved the use of race in jury selection. In "Batson" (1984), the SCOTUS said race couldn't be used, but required proof of racist motives to establish a violation, which is a nearly impossible standard to meet.
Every study of peremptory challenges in multiple states has found disproportionate use of challenges to exclude blacks. One study concluded, "there is perhaps no area of public life where racial discrimination is more widespread, apparent, and seemingly tolerated than in the selection of juries." While "Batson" targets deliberate discrimination, racial bias can be "unintentional, institutional or unconscious."
A better standard than trying to divine prosecutors' motives is simply looking for persistent racial disparities in the use of peremptory challenges. Another reform approach would be to either reduce the number of challenges or to abolish them altogether as Arizona did in 2022.
A way poor defendants get exploited in many states is via privatization of various court functions. These functions include bail enforcement, probation supervision, and private prisons, all of which charge fees to the people charged with crimes. Those who can't afford to pay acrue penalties and debt, which leaves them subject to arrest by private bounty hunters. By contrast, more affluent defendants don't get trapped in the debt spiral.
Charges may be for petty offenses such as disturbing the peace. Those who can afford to pay a fine never risk jail. Those who can't pay their fine face penalties and additional fees, the failure of which to pay can result in jail. Fees also apply to juveniles in many jurisdictions.
Some towns use their municipal courts as cash cows. Fines are imposed without an assessment of a person's ability to pay. Despite the Eighth Amendment's prohibition of "excessive fines," thousands of detainees are in jail because of their inabilty to pay.
Driver's licenses are suspended in some states due to unpaid court debt. People who can't pay can be put on probaruon for which they are charged additional fees. In essence, poor people are punished for their poverty. "This use of courts, police, and probation to generate public funds does not serve any semblance of justice."
The Eighth Amendment also forbids excessive bail. Yet people are penalized for their low income by the bail system. Seven in ten jail detainees are held because they can't make cash bail.
Detainees are far more likely to plead guilty than those charged with the same crimes who are able to make bail. A guilty plea is a often a way for detainees to be released.
Incarceration is particularly detrimental to those with mental illness. Yet the mentally ill comprise between one quarter to one half of all detainees. This happens despite public recognition that mental illness is not a choice, and that those with severe illness should not be punished for crimes committed due to their condition. But the legal standard to prove mental incompetence is very difficult to meet.
The life sentence is one reason the USA has the world's highest incarceration rate. Lifers constitute a growing proportion of prison inmates. Habitual offender laws result in life sentences in thousands of cases for nonviolent crimes. African Americans are the majority of lifers for nonviolent crimes.
Prosecutorial discretion in seeking habitual offender enhancements leads to gross racial disparities. In the 1990s, for example, Georgia prosecutors invoked the life sentence for 202 out of 1,107 black defendants eligible for them but for only one of 167 eligible whites.
Various studies have found that blacks convicted of crimes get significantly longer sentences than whites with identical records found guilty of the same crimes. This is due to discretion by prosecutors and judges. In one Florida case, the same judge sentenced a white defendant to two years behind bars and a black defendant with an identical record of priors convicted of the same crime to 26 years. Both had pleaded no contest.
Likewise, blacks on parole are more likely (50% in one study) to be sent to prison for technical violations than white parolees.
"The Fear of Too Much Justice" makes a cogent case that being poor and black are huge disadvantages in the criminal justice system. Serious reforms are necessary to achieve the goal of justice being blind. -30-
Steven Bright has devoted his legal career to representing the poor and seeking justice in a system "that treats you better if you are rich and guilty than if you are poor and innocent." James Kwak is a former law professor who was a student of Bright's.
The most shocking form of injustice is when innocent defendants are convicted and sentenced to death. At least 185 people with death sentences were ultimately found innocent between 1973 and 2020. Some of them had spent decades in prison.
What we don't know is how many innocent individuals have been executed because there was no DNA evidence in their cases, which is true the majority of the time. "In cases where DNA testing is not possible, there is no reason to believe that the error rate is different."
What we do know is that prosecutors routinely exclude blacks from juries when the accused is black. So long as prosecutors offer a race-neutral reason, their challenges are upheld.
When the Supreme Court upheld capital punishment by 5-4 in the "McCleskey" case (1987), the decision rejected strong evidence of racial disparity in the death penalty by saying there are disparities in prison sentences as well. To require nondiscrimination in capital cases we would lead to an avalanche of challenges to prison sentences. The majority had "a fear of too much justice," wrote Justice Brennan in dissent.
"It is never wrong to remedy discrimination," write Bright and Kwak. Justice is supposed to be blind so defendants' poverty and race do not work against them. That's not how the system works, however, and the authors challenge the system to live up to its own ideals.
Prosecutors are typically white (95% of elected prosecutors nationwide in 2019), and they have broad discretion. It is up to prosecutorial discretion whether to charge someone with a misdemeanor or a felony, how many charges to bring, and what sentence to propose. Judges routinely go along with the sentence in a plea agreement.
One power is to severely punish defendants who exercise their right to a trial instead of pleading guilty. This is called the trial penalty. It costs some their lives when they are convicted at trial and the prosecutor seeks the death penalty instead of the prison sentence he had previously offered as a plea bargain.
Due to the trial penalty, guilty pleas rather than jury trials are the disposition in more than nine out of ten criminal cases. Thus, the prosecutor, who is hardly a neutral fact finder, is effectively the judge and jury.
Defendants have precious little negotiating power. Plea bargains are "effectively coerced," including from an unknown number of innocent defendants who don't want to risk, say, life in prison or the death penalty if convicted at trial. In other words, pleading guilty is not voluntary when it is made under the extreme duress of a sentence that can be three times longer if the individual does not plead guilty.
Readers should ask themselves what they would do if they were innocent but couldn't afford a good lawyer. Suppose the prosecutor offers a deal of one year in prison or the threat of life imprisonment if you were convicted at the jury trial you have the constitutional right to ask for. Would you roll the dice knowing that most defendants lose? One study found that 15% of prisoners who were later exonerated had pled guilty.
Truth and justice are not the top priorities in a system that puts excruciating pressure upon the innocent to plead guilty by severely punishing them for exercising a constitutional right.
Prosecutors enjoy many advantages in the handful of cases that go to trial. One of them is the power to offer a reduced sentence to a witness in return for testimony against an accomplice or a former cellmate.
Informants facing charges have a strong incentive to tell the prosecutor what he wants to hear. Informants, who have been known to lie under oath even about being promised leniency in their own cases, are a significant cause of wrongful convictions.
This use of in-custody informants sometimes leads to lesser sentences for criminals who have greater culpability than for those with lesser. For example, the person who pulled the trigger in a robbery and murder, but who testifies against a confederate, may serve considerably less time than the getaway driver.
Another advantage prosecutors have is access to all the evidence, which they do not have to disclose to the defense in some states unless it is favorable to the accused. That Brady disclosure requirement, however, is not well enforced, and failure to disclose such evidence does not automatically result in a new trial.
In civil cases, both sides know who the witnesses are before trial and have a chance to depose them. But not in criminal trials. A rule to fully disclose all evidence before trial eliminates arbitrary and self-serving prosecutorial decisions about which evidence is exculpatory.
When a prosecutor makes an improper closing argument by violating various rules, the appellate courts often nonetheless uphold guilty verdicts by claiming the error was not dispositive.
A study of 2,400 cases of individuals who were wrongly convicted found that the prosecutors faced discipline only 4% of the time. The authors advocate reforms to restrict prosecutorial discretion and to provide accountability for misconduct.
Another area ripe for reform is the right to a lawyer. About four out of five defendants have appointed lawyers. If the appointed counsel is incompetent, overworked, or drunk, the defendant is unlikely to be properly represented. "An accused person's rights are only those that his lawyer asserts."
Even in capital cases, appointed counsel may be unqualified to represent their clients. Under SCOTUS precedents, however, having manifestly incompetent counsel may not be sufficient grounds for overturning convictions — even in capital cases.
Incompetence isn't the only problem. In some states, no counsel is provided to most people charged with misdemeanors. Other accused persons may sit in jail for weeks or months before an attorney talks to them.
After conviction, most people have no right to legal
representation for appeals at public expense. Consequently, prisoners frequently file their own appeals.
Chronic underfunding of the defense services by states and counties prevents even competent attorneys from spending needed time and effort with the defendants they represent. "The Supreme Court left the right to counsel to state and local governments, which generally see little reason to expend resources on behalf of poor people, let alone poor criminal defendants."
Another source of racial bias is the timeworn practice of excluding blacks from juries. Explicit exclusion used to be embodied in law in southern states. In modern times, exclusion is nearly as systematic. Nowadays, prosecutors claim nonracist reasons for using peremptory challenges to remove all black members of a jury pool. Those purported reasons are often not applied to white jurors.
Why does it matter? The authors contend that all-white juries tend to treat black defendants more harshly than white defendants.
The SCOTUS has permitted the continued whitewashing of juries. The "Swain" decision of 1965 approved the use of race in jury selection. In "Batson" (1984), the SCOTUS said race couldn't be used, but required proof of racist motives to establish a violation, which is a nearly impossible standard to meet.
Every study of peremptory challenges in multiple states has found disproportionate use of challenges to exclude blacks. One study concluded, "there is perhaps no area of public life where racial discrimination is more widespread, apparent, and seemingly tolerated than in the selection of juries." While "Batson" targets deliberate discrimination, racial bias can be "unintentional, institutional or unconscious."
A better standard than trying to divine prosecutors' motives is simply looking for persistent racial disparities in the use of peremptory challenges. Another reform approach would be to either reduce the number of challenges or to abolish them altogether as Arizona did in 2022.
A way poor defendants get exploited in many states is via privatization of various court functions. These functions include bail enforcement, probation supervision, and private prisons, all of which charge fees to the people charged with crimes. Those who can't afford to pay acrue penalties and debt, which leaves them subject to arrest by private bounty hunters. By contrast, more affluent defendants don't get trapped in the debt spiral.
Charges may be for petty offenses such as disturbing the peace. Those who can afford to pay a fine never risk jail. Those who can't pay their fine face penalties and additional fees, the failure of which to pay can result in jail. Fees also apply to juveniles in many jurisdictions.
Some towns use their municipal courts as cash cows. Fines are imposed without an assessment of a person's ability to pay. Despite the Eighth Amendment's prohibition of "excessive fines," thousands of detainees are in jail because of their inabilty to pay.
Driver's licenses are suspended in some states due to unpaid court debt. People who can't pay can be put on probaruon for which they are charged additional fees. In essence, poor people are punished for their poverty. "This use of courts, police, and probation to generate public funds does not serve any semblance of justice."
The Eighth Amendment also forbids excessive bail. Yet people are penalized for their low income by the bail system. Seven in ten jail detainees are held because they can't make cash bail.
Detainees are far more likely to plead guilty than those charged with the same crimes who are able to make bail. A guilty plea is a often a way for detainees to be released.
Incarceration is particularly detrimental to those with mental illness. Yet the mentally ill comprise between one quarter to one half of all detainees. This happens despite public recognition that mental illness is not a choice, and that those with severe illness should not be punished for crimes committed due to their condition. But the legal standard to prove mental incompetence is very difficult to meet.
The life sentence is one reason the USA has the world's highest incarceration rate. Lifers constitute a growing proportion of prison inmates. Habitual offender laws result in life sentences in thousands of cases for nonviolent crimes. African Americans are the majority of lifers for nonviolent crimes.
Prosecutorial discretion in seeking habitual offender enhancements leads to gross racial disparities. In the 1990s, for example, Georgia prosecutors invoked the life sentence for 202 out of 1,107 black defendants eligible for them but for only one of 167 eligible whites.
Various studies have found that blacks convicted of crimes get significantly longer sentences than whites with identical records found guilty of the same crimes. This is due to discretion by prosecutors and judges. In one Florida case, the same judge sentenced a white defendant to two years behind bars and a black defendant with an identical record of priors convicted of the same crime to 26 years. Both had pleaded no contest.
Likewise, blacks on parole are more likely (50% in one study) to be sent to prison for technical violations than white parolees.
"The Fear of Too Much Justice" makes a cogent case that being poor and black are huge disadvantages in the criminal justice system. Serious reforms are necessary to achieve the goal of justice being blind. -30-
November 16, 2023
Incredibly researched and compelling to read (and I’m no student of the law!).
October 15, 2025
The Fear of Too Much Justice, written by two defense attorneys, examines the racial biases and exploitation of the poor woven throughout the court system. The book makes the claim that if our justice system aspires to earn its title, it will have to make aggressive changes. While that may not be news to readers who live out from under rocks, the book offers a lot of data and multiple layers of analysis to bring the concept into focus.
The justice system, such as it is, functions in such a way that prosecutors hold sway over how trials will progress (i.e., in determining charges, in stacking the jury racially despite its supposed illegality), and defenders for the poor are barely existent in some zip codes. Our system churns out plea deals (in 97% of federal criminal cases and 94% at the state level), a source of revenue that also takes less time and effort than trials. Without meaningful legal representation, the poor and predominantly Black people accused of crimes are likely to take such pleas, even when the punishment is more than they can afford (in the case of fines and fees) and forces them to admit guilt, true or not. The "trial penalty" is a bargaining chip used by prosecutors to pressure a defendant into taking a plea. If they insist on exercising their right to a trial, they're threatened with heftier punishments for the inconvenience. It cannot be said that the punishment is meant as a fair form of justice when it shifts so easily; the gall to reject a plea can escalate the stakes to life or death. The authors say that in such an imbalanced system, where a prosecutor holds the power and resources (where defendants are poor, at least), it is not a true adversary system, one where a decision comes about through fair and reasoned argument from both sides.
Prosecutors also have the power to reward "jailhouse snitches," informants who have much to gain by claiming they've heard a confession or the like. There's no oversight of the lenient plea bargains, etc., that they can receive in return, and they can tell a jury they're not being compensated for their testimony. It turns a system that's notoriously unreliable and, in fact, rewarding of convenient lies into one that sounds to a jury like it's motivated by the greater good. Serial informants can even move around so that there isn't an easy paper trail showing their history of making deals by being the linchpin "witness" in uncertain, high-stakes cases.
An interesting detail I'm not sure I realized before the authors spelled it out for me is this: the death penalty is never required. The decision to seek it is made by a prosecutor, yet another power they hold in the system. This largely occurs at the state, rather than federal, level and doesn't come with particular guidelines, as shown by the way each prosecutor approaches it differently, following some personal metric to decide when or how often to pursue it. This is how one office in a particular county can churn out more death penalties than others, or how one district attorney can have a wildly different track record than their predecessor or successor.
Another practice that harms defendants of color is the process of striking the jury. Lawyers can give arbitrary, silly reasons for removing a potential juror to mask illegal racial motivations and, in less obvious scenarios, may simply reflect a prosecutor's unconscious racial biases. Regardless of the motivation, it's allowed as long as the surface-level reasoning is "race neutral," which is how we end up with disproportionately white juries, people of color, and Black people in particular, weeded out through several stages of forming the jury right up until the strikes are made. The pattern is all the more obvious when a prosecutor's track record can be examined across all cases they try. Where they can argue that one choice was not racially motivated, statistics can unveil a systematic preference for white juries.
And how is it that when a prosecutor is determined to have engaged in misconduct on a case, their conviction is left standing? Reprimands won't have an impact if there's no material consequence. And the consequence for the convicted provides a striking contrast since it is both material and potentially severe.
On the defense side, underfunding has led us to not meet the ideal of each person receiving a fair and vigorous defense in court. Whether it's public defenders without the funds to hire experts and investigators or private firms that bid for contracts by accepting the minimum pay, poor defendants aren't getting quality help. The system encourages defense lawyers to spend little time on any given case, given extensive caseloads and low compensation. It also creates a field that isn't attractive within the profession, therefore not drawing in the best talents. Then there's the fact that public defenders are hired by the state, so their job security is in the hands of their supposed opposition. This encourages compliance, with some defenders who speak up about the unbalanced system losing their jobs.
The system is also primed for corruption since elected judges may appoint whomever they choose to these roles. These judges, usually former prosecutors, have an eye on their next campaign for re-election, a competition to see who can convince the public that they're toughest on crime. The tidbits that made it into the book about my home state were (unsurprisingly) not flattering. For example, while I knew and was proud that Iowa legalized same-sex marriage through our Supreme Court, I didn't know that three justices were voted off the bench in the next election in retaliation.
The book also covers the corrupt privatization of bail bonds to trap poor people in a convoluted system of debts and fees that they willingly enter when their ability to stay free is at stake. I'd heard about this one a bit from John Oliver when he covered it on his show, but the book includes it as part of its larger conversation about a system it's breaking down brick by brick. What *can't* be privatized and turned into a revenue stream is the real question. From bail to prisons to probation, someone is making money at every step of the judicial process. These unethical methods of extracting profit from those who can't afford to buy their way out of traffic violations upfront, etc., take the place of unpopular routes to procuring municipal funds, namely raising taxes. The authors note that this is a particularly enticing practice in municipalities with low property values because the need to get funds elsewhere is pressing. These methods also lead to more aggressive policing, where there is great pressure to meet citation quotas as a means of raising funds. The privatization of probation means that the goal is no longer rehabilitation but making money for local governments and private companies-- the longer a probationer can be strung along by fees they can't afford, the more services they can be squeezed for under threat of imprisonment should they not pay, the better for the companies in particular. While the initial fees owed may be a flat number, exorbitant interest and piled-on punishments, as the poor mark fails to keep up with the costs (the very reason they found themselves on a payment plan in the first place), go directly into private company pockets. And holy shit, 70+% of jail occupants are only there because they can't afford bail. They haven't actually been found guilty of a crime.
The authors argue that our judicial system has a "fear of too much justice" because Supreme Court decisions describe how admitting and fixing one facet of systemic discrimination opens the door for claims of injustice in other quarters. Where the authors (and I) would view that as a positive opportunity to make more corrections, some in power fear such a broad reckoning for wrongs done and massive overhaul of discriminatory systems. I found this book revelatory and approachable, a citizen's guide to the world we live in and what must change. Thanks to The New Press for my copy to read and review!
The justice system, such as it is, functions in such a way that prosecutors hold sway over how trials will progress (i.e., in determining charges, in stacking the jury racially despite its supposed illegality), and defenders for the poor are barely existent in some zip codes. Our system churns out plea deals (in 97% of federal criminal cases and 94% at the state level), a source of revenue that also takes less time and effort than trials. Without meaningful legal representation, the poor and predominantly Black people accused of crimes are likely to take such pleas, even when the punishment is more than they can afford (in the case of fines and fees) and forces them to admit guilt, true or not. The "trial penalty" is a bargaining chip used by prosecutors to pressure a defendant into taking a plea. If they insist on exercising their right to a trial, they're threatened with heftier punishments for the inconvenience. It cannot be said that the punishment is meant as a fair form of justice when it shifts so easily; the gall to reject a plea can escalate the stakes to life or death. The authors say that in such an imbalanced system, where a prosecutor holds the power and resources (where defendants are poor, at least), it is not a true adversary system, one where a decision comes about through fair and reasoned argument from both sides.
Prosecutors also have the power to reward "jailhouse snitches," informants who have much to gain by claiming they've heard a confession or the like. There's no oversight of the lenient plea bargains, etc., that they can receive in return, and they can tell a jury they're not being compensated for their testimony. It turns a system that's notoriously unreliable and, in fact, rewarding of convenient lies into one that sounds to a jury like it's motivated by the greater good. Serial informants can even move around so that there isn't an easy paper trail showing their history of making deals by being the linchpin "witness" in uncertain, high-stakes cases.
An interesting detail I'm not sure I realized before the authors spelled it out for me is this: the death penalty is never required. The decision to seek it is made by a prosecutor, yet another power they hold in the system. This largely occurs at the state, rather than federal, level and doesn't come with particular guidelines, as shown by the way each prosecutor approaches it differently, following some personal metric to decide when or how often to pursue it. This is how one office in a particular county can churn out more death penalties than others, or how one district attorney can have a wildly different track record than their predecessor or successor.
Another practice that harms defendants of color is the process of striking the jury. Lawyers can give arbitrary, silly reasons for removing a potential juror to mask illegal racial motivations and, in less obvious scenarios, may simply reflect a prosecutor's unconscious racial biases. Regardless of the motivation, it's allowed as long as the surface-level reasoning is "race neutral," which is how we end up with disproportionately white juries, people of color, and Black people in particular, weeded out through several stages of forming the jury right up until the strikes are made. The pattern is all the more obvious when a prosecutor's track record can be examined across all cases they try. Where they can argue that one choice was not racially motivated, statistics can unveil a systematic preference for white juries.
And how is it that when a prosecutor is determined to have engaged in misconduct on a case, their conviction is left standing? Reprimands won't have an impact if there's no material consequence. And the consequence for the convicted provides a striking contrast since it is both material and potentially severe.
On the defense side, underfunding has led us to not meet the ideal of each person receiving a fair and vigorous defense in court. Whether it's public defenders without the funds to hire experts and investigators or private firms that bid for contracts by accepting the minimum pay, poor defendants aren't getting quality help. The system encourages defense lawyers to spend little time on any given case, given extensive caseloads and low compensation. It also creates a field that isn't attractive within the profession, therefore not drawing in the best talents. Then there's the fact that public defenders are hired by the state, so their job security is in the hands of their supposed opposition. This encourages compliance, with some defenders who speak up about the unbalanced system losing their jobs.
The system is also primed for corruption since elected judges may appoint whomever they choose to these roles. These judges, usually former prosecutors, have an eye on their next campaign for re-election, a competition to see who can convince the public that they're toughest on crime. The tidbits that made it into the book about my home state were (unsurprisingly) not flattering. For example, while I knew and was proud that Iowa legalized same-sex marriage through our Supreme Court, I didn't know that three justices were voted off the bench in the next election in retaliation.
The book also covers the corrupt privatization of bail bonds to trap poor people in a convoluted system of debts and fees that they willingly enter when their ability to stay free is at stake. I'd heard about this one a bit from John Oliver when he covered it on his show, but the book includes it as part of its larger conversation about a system it's breaking down brick by brick. What *can't* be privatized and turned into a revenue stream is the real question. From bail to prisons to probation, someone is making money at every step of the judicial process. These unethical methods of extracting profit from those who can't afford to buy their way out of traffic violations upfront, etc., take the place of unpopular routes to procuring municipal funds, namely raising taxes. The authors note that this is a particularly enticing practice in municipalities with low property values because the need to get funds elsewhere is pressing. These methods also lead to more aggressive policing, where there is great pressure to meet citation quotas as a means of raising funds. The privatization of probation means that the goal is no longer rehabilitation but making money for local governments and private companies-- the longer a probationer can be strung along by fees they can't afford, the more services they can be squeezed for under threat of imprisonment should they not pay, the better for the companies in particular. While the initial fees owed may be a flat number, exorbitant interest and piled-on punishments, as the poor mark fails to keep up with the costs (the very reason they found themselves on a payment plan in the first place), go directly into private company pockets. And holy shit, 70+% of jail occupants are only there because they can't afford bail. They haven't actually been found guilty of a crime.
The authors argue that our judicial system has a "fear of too much justice" because Supreme Court decisions describe how admitting and fixing one facet of systemic discrimination opens the door for claims of injustice in other quarters. Where the authors (and I) would view that as a positive opportunity to make more corrections, some in power fear such a broad reckoning for wrongs done and massive overhaul of discriminatory systems. I found this book revelatory and approachable, a citizen's guide to the world we live in and what must change. Thanks to The New Press for my copy to read and review!
July 18, 2023
The Fear of Too Much Justice does read like a textbook, but Stephen is a prof, so that may be its intention. If not, digging deeper into the humanity side, especially those falsely imprisoned would've garnered more sympathy from a wider audience. The book is well cited with previous cases and sadly reflects the poor state of our legal system. I've only served on one jury of 6 for a civil case in the 80s and unlike the criminal cases cited, the jurors consisted of 4 white and 2 black. We were split solely based on education. Those with higher than high school voted one way and those without voted the other way, one black on each side, which doesn't lend me to believe that a jury of peers works at all. I also was sued for 18 years, which let me know that the court system does not work in favor of children as the statutes dictate but revolves around attorney and judges' racketeering.
It's troubling that candidates will go for a conviction prior to running for office and so much of the legal system is based on bleeding money from people who do not have the means to pay. The book points out the obvious racial disparities, but the media does put blacks at a disadvantage. Stephen writes about individuals with severe mental disabilities and institutionalizing them. The sad fact is some people cannot be rehabilitated, and protecting the public should always be the higher priority.
Stephen does provide solutions to the troubling state of our justice system. For me, the most important one is education is the great equalizer. Working off one's debt to society is definitely something I've thought works best and according to Stephen, it does. He provides several workable solutions, especially the injustice done to minorities and marginalized people. This is a book all should read, so that Usarians (USA) will vote out both parties and demand the right to set laws, which work for everyone.
It's troubling that candidates will go for a conviction prior to running for office and so much of the legal system is based on bleeding money from people who do not have the means to pay. The book points out the obvious racial disparities, but the media does put blacks at a disadvantage. Stephen writes about individuals with severe mental disabilities and institutionalizing them. The sad fact is some people cannot be rehabilitated, and protecting the public should always be the higher priority.
Stephen does provide solutions to the troubling state of our justice system. For me, the most important one is education is the great equalizer. Working off one's debt to society is definitely something I've thought works best and according to Stephen, it does. He provides several workable solutions, especially the injustice done to minorities and marginalized people. This is a book all should read, so that Usarians (USA) will vote out both parties and demand the right to set laws, which work for everyone.
July 18, 2023
The Fear of Too Much Justice: Race, Poverty, and the Persistence of Inequality in the Criminal Courts by Stephen Bright and James Kwak is an important book for anyone interested in making our so-called justice system more equitable.
There are certainly a number of very good books that address this area of the legal system, from accounts based on experience in the system to those that put forth, often very general, ideas for reform. This book fits nicely into both, though because the experience is from the side of pursuing justice the possible solutions are less abstract and very real world. Where I think this work excels is in walking the reader through the system, specifics that highlight where and how the inequities are most apparent and most damaging.
Some of the information will, or at least should, infuriate you. The flaws can't, for the most part, be passed off as inadvertent consequences of poor phrasing in the law, they are built into the system and part of the reason for such slow progress, when there is progress, is because the rich and powerful were intentionally given a better justice system while the poor and those of color were not. And it is in the nuts and bolts of the system, the administrative procedures and policies that surround the laws, even laws that might have been written to be equitable.
While I would love for policymakers and those within the system who want change to read this, it is also imperative for anyone seeking to improve the system to read this. Many of us, even those of us who have been activists, have a limited understanding of exactly how the system works, which means our suggestions for improvement may be aimed at the wrong part of the machine.
Reviewed from a copy made available by the publisher via NetGalley.
There are certainly a number of very good books that address this area of the legal system, from accounts based on experience in the system to those that put forth, often very general, ideas for reform. This book fits nicely into both, though because the experience is from the side of pursuing justice the possible solutions are less abstract and very real world. Where I think this work excels is in walking the reader through the system, specifics that highlight where and how the inequities are most apparent and most damaging.
Some of the information will, or at least should, infuriate you. The flaws can't, for the most part, be passed off as inadvertent consequences of poor phrasing in the law, they are built into the system and part of the reason for such slow progress, when there is progress, is because the rich and powerful were intentionally given a better justice system while the poor and those of color were not. And it is in the nuts and bolts of the system, the administrative procedures and policies that surround the laws, even laws that might have been written to be equitable.
While I would love for policymakers and those within the system who want change to read this, it is also imperative for anyone seeking to improve the system to read this. Many of us, even those of us who have been activists, have a limited understanding of exactly how the system works, which means our suggestions for improvement may be aimed at the wrong part of the machine.
Reviewed from a copy made available by the publisher via NetGalley.
January 21, 2024
A Fear of Too Much Justice – Bright & Kwak
Our authors here show the myriad ways that the justice system does not serve justice, from how differently different jurisdictions apply the death penalty and how hard it is to appeal those cases, to the problem of all-white juries to how disproportionate justice is meted out to the poor than it is to the rich (the right to an attorney being more on paper than in practice). It seems that the justice system in America exists more as a form of social control than a way to actually attain justice for any victims, real or perceived. It’s not that I didn’t know this going in, but books like this are good in that they lay out the case in a well-organized manner that gets you all red and mad with the system and those that perpetuate it. The problem, of course, is that it is way easier to look at the problems than to make a single fix. You can spend your whole career trying to reform just one little piece of the larger issues and though you would be doing a lot of good to the world, the system would still be 99.99% as bad as it was when you found it broken and wanted to go about fixing it.
Our authors here show the myriad ways that the justice system does not serve justice, from how differently different jurisdictions apply the death penalty and how hard it is to appeal those cases, to the problem of all-white juries to how disproportionate justice is meted out to the poor than it is to the rich (the right to an attorney being more on paper than in practice). It seems that the justice system in America exists more as a form of social control than a way to actually attain justice for any victims, real or perceived. It’s not that I didn’t know this going in, but books like this are good in that they lay out the case in a well-organized manner that gets you all red and mad with the system and those that perpetuate it. The problem, of course, is that it is way easier to look at the problems than to make a single fix. You can spend your whole career trying to reform just one little piece of the larger issues and though you would be doing a lot of good to the world, the system would still be 99.99% as bad as it was when you found it broken and wanted to go about fixing it.
July 6, 2023
Having recently re-read Bryan Stevenson’s Just Mercy: a story of justice and redemption for a book club discussion, I can’t help but connect these two books. Both are powerful and eye opening.
While the authors’ styles differ, they make for a potent duo. Stevenson’s work is somewhat more readable and personal but Bright and Kwak do an excellent job of updating the earlier work and give a more organized and detailed overview of the legal process. Both books make a passionate and heart-wrenching statement on the failures of this country’s criminal legal system.
The Fear of Too Much Justice… is an important and timely read – highly recommended.
FYI - I received a copy of this book through NetGalley in exchange for an honest review.
While the authors’ styles differ, they make for a potent duo. Stevenson’s work is somewhat more readable and personal but Bright and Kwak do an excellent job of updating the earlier work and give a more organized and detailed overview of the legal process. Both books make a passionate and heart-wrenching statement on the failures of this country’s criminal legal system.
The Fear of Too Much Justice… is an important and timely read – highly recommended.
FYI - I received a copy of this book through NetGalley in exchange for an honest review.
October 10, 2023
This book is a tremendously upsetting and powerful look at many of the problems in our criminal justice system. Bright and Kwak (a friend) have done a clear job explaining these issues and provided scores of anecdotes demonstrating the horrible human effects of these systematic problems. Overzealous prosecutors playing on a lopsided field with bad incentives, too little access to competent criminal defense, judicial elections that reward judges that demonstrate how "tough on crime" they are, and the racism laced throughout the system are some of the many systemic problems this book illuminates and explores. Highly recommended.
November 8, 2023
Read this book no matter how many times you have to take a break to breathe. Read this book. It is one of the most important books I have ever read. With case after case after case, Bright and Kwak illustrate how flawed our justice system has become. They also lay out the steps we must take to make the system less arbitrary and bring it closer to true justice.
April 11, 2024
Excellent overview of the issues that continue to plague our criminal justice system, with heartbreaking stories demonstrating the injustices that each policy brings. The authors also point towards possible reforms that would pivot our system towards true justice.
Highly recommend to any and everyone, especially if you have an interest in crime or criminal law.
Highly recommend to any and everyone, especially if you have an interest in crime or criminal law.
August 17, 2024
Plainly written, a pro and a con, but more pro than con. The book systematically goes through the problems plaguing courts through the US, and outlines the causes and the solutions. There is not much poetry, but the prose is enough on its own to keep your attention and emotions. An insightful read.
December 9, 2024
This will open your eyes to how our justice system can take advantage of the very system that meant to protect the public and follow and respect people’s rights, take advantage of the poor, people of color and people with disabilities
February 17, 2025
Makes very good points and sheds light on areas for improvement as well as differences by state. However, I don’t think it provides a balanced perspective. Granted, the focus is on sentencing and crime… the justice system does so much more than that.
July 2, 2023
Important content but it does read like a textbook.
Want to Read
August 21, 2023NPR Booklist, May 2023, “Here are 19 books our critics are excited for this summer”
September 21, 2023
That was as expected and frustrating, shocking, and depressing.
October 14, 2024
The book tells how the justice system tends to run on public opinion and politics rather than actual justice and what can be done to rectify that.
September 23, 2023
Hard reading because of the subject matter, but clearly well researched. It tells a horrible story of the lack of justice in the “justice” system. Made me want to do more in this arena.
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