Injustice in the Justice System? Views from the front line with Ohio Supreme Court Judge Michael P. Donnelly

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The justice system produces a shocking number of injustices daily.

Wrongful convictions, obscure plea bargain agreements, bureaucratic mishaps, snap judgments made on bias and whim … it’s all part of the elaborate sausage factory lawyers know as “the administration of justice”.

But that’s not the whole story.

There are also many incredibly lucid, honest, and courageous individuals in it – those who take risks and fight to improve things from within.

Supreme Court of Ohio Justice Michael P. Donnelly is one of those people.

Justice Donnelly reached out to me after he read my piece in The Atlantic on how data and AI could help improve fairness in the justice system. We recorded the ensuing conversation in the podcast episode below.

The argument I made in the article was that the variability in judicial decision-making is simply too high – in some cases, the odds of an outcome in court can vary from 5% to 88%, and a sentence for the same facts can vary from zero to over a decade, based strictly on the identity of the individual judge who hears a case.

Why bother with democratic laws at all if legal outcomes rely mainly on who decides?

As a practicing lawyer, I was expecting some pushback … especially from judges.

But Justice Donnelly strongly agreed that to be fair and connected to the democratic process, legal interpretations must be contained within a narrower range than they are today:

“Like you said so eloquently in your article in The Atlantic, judicial discretion is a good thing as long as it's exercised within reasonable boundaries. And that's what we don't have … when you give a judge the power to sentence someone on that given case to a sentence of probation all the way up to 100 years, I mean, that is the fertile ground for a bias, implicit bias, explicit bias. The noise in the decision-making process is that it could produce a result that you would give on one day, that you might give the total opposite result on the next day. Public confidence is threatened when people believe that your outcomes are not based so much on the rule of law, which requires fairness and proportionality and consistency and they're really on the judge or the mood of the judge at the particular type of sentencing.”

The conversation that follows covers many concerns and issues we share, including wrongful convictions, the impact of unstated human biases, the strange pushback against the calls for more transparency in the justice system, and the obscure decisions made behind closed doors between lawyers and judges.

We also pinpointed a dangerous cultural and legal trend today in favour of punishing guilt, even if it comes at the expense of protecting the innocent.

We both agreed that the legal system has strayed far away from the ideals that led to the emergence of the rule of law in America, including William Blackstone, who wrote in his Commentaries that “it’s better that ten guilty persons escape than that one innocent suffer”, words echoed by Founding Father John Adams:

“It’s more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they can’t all be punished. But if innocence itself is condemned then the citizen will say, 'whether I do good or whether I do evil is immaterial, for innocence itself is no protection,' and if such an idea as were to take hold that would be the end of security whatsoever.”

I hope conversations like this lead to more awareness and candid talk around the state of our legal system.

The business of “justice as usual” shouldn’t make us complacent about injustice.

Fred