Who Is In Charge of the Criminal Legal System?

The last few posts have explored data about who is in jail in Buncombe County and how long they stay there. We will continue that exploration, but it’s important to have some context about the criminal legal system within which it occurs.

For one thing, the jail itself, which is run by the Buncombe County Sheriff’s Department, is uniquely not responsible for who is there or how long. If a magistrate says they are to be booked in, the jail must book them in, and they can’t let anyone out until a judge says so.

So who is actually in charge?

The picture most of us have of the criminal legal system looks very like a black box. We hear that “they got the guy,” assume that the guy they got is actually the right guy (which the legal system decidedly is not supposed to assume), and then forget about it from that point.

If we do think about it, we probably imagine a courtroom like we’ve seen on TV or in a movie with a prosecutor, a defense attorney, a jury, and a judge, with the judge obviously in charge. It’s a nice picture, but not at all how things really work. 

The real answer as to who is in charge may surprise you: nobody. 

To quote from the first chapter of a criminal law textbook:

…to speak of a criminal justice ‘system’ is something of a misnomer. To be sure, the various agencies and institutions of criminal justice are highly interdependent, and efforts to address problems in one of them are likely to fail if they do not take into account the repercussions of reform on all the others. But the agencies of criminal justice are not part of a single, coherent organization. Their relationships with one another often are haphazard and uncoordinated.” [1]

Think about it for a moment: who are the main actors in the criminal legal system, after law enforcement hands someone over? The state General Assembly who makes the laws, the sheriff (who runs the jail and provides court security, including the bailiffs), a number of District and Superior Court judges (along with appellate judges and the state Supreme Court), the District Attorney, the Clerk of Court, and defense attorneys. 

Every one of these except the last are elected in North Carolina, so each has their own power base (including each individual judge). And defense attorneys are a collection of independent private attorneys and attorneys in the Office of the Public Defender who are accountable to their clients. On top of those main actors we have Pretrial Services, Probation and Parole, and Victim Services, each an independent agency which does not answer to any of the others.

So not only is no one in charge, no part of the system is even answerable to any other part. This has two very important consequences. 

First, even if every actor in the system operates with the best of intentions (and in general I believe that they do), things can get very messed up and lead to results that each individual actor agrees are bad. 

And second, even if everyone agrees the system should change, actually doing so is incredibly difficult. Besides the ordinary inertia of any system, every major actor has the power to say no to any particular change (which they often will since, even when people agree on the outcome, they often disagree on the means). Add in three other distinctive features of American criminal justice that are reflected in Buncombe County as well: a high volume of cases, a chronic shortage of resources, and “broad, largely unguided and largely uncontrolled discretion” [2], and you have a recipe for a system that is intensely resistant to change.

There is, however, a vital part of the system that we have not yet named: the public. It’s the public that votes for elected officials and it’s the public that sits on juries. And in the end, it is to the public that all the actors in the system and even the laws themselves are accountable. That accountability is slow and the law and its systems often lag significantly, but if we truly want to reform our criminal legal systems so as to turn them into actual systems for justice, it is the public that will drive the change.

That’s a long, slow, and difficult process, but one aspect of it is that the public needs to understand just how the system actually works. That is the underlying spur for these posts. I am under no illusion that what I’m writing will be “popular,” but I do hope that it can be a resource for community leaders, community groups, elected officials, and local media.

1. Sanford H. Kadish, Stephen J. Schulhofer and Carol S. Steiker, Criminal Law and its Processes: Cases and Materials, 8th Ed. (Austin, Aspen Publishers, 2007), 1.
2. Ibid., 2-3.