Aesthetic Distance

There is an unnamed crisis of aesthetic immediacy afoot in the American criminal justice system. Defendants are seen too quickly. Or rather, they are recognized too quickly. They are recognized spatially, at the defense table, surrounded by lawyers and court marshals, playing the protagonists in the court performance. For most observers, this staging and its familiarity bring about a series of untold assumptions—assumptions that, when viewed nakedly, erode the presumption of innocence. While implicit biases and prejudices similarly short-circuit judicial proceedings—procedure and proceduralism itself—nefariously permit implicit narratives to outpace evidence. Tools to interrupt the aesthetics of transgression and its aftermath will serve judicial accuracy without substantial efficiency tradeoffs. While the bifurcation of the guilt and sentencing in American courts laudably partitions the culpability inquiry from the question of deserved punishment—the former, the question of wrongdoing, can never be truly divorced from history, neither personal nor social. Nor should it be. The Anglo-American insistence on a socially ahistorical criminal trial comes at a high cost: real and textured history—the foreground, leadup, and intimate histories of what occurred is kept out, while the more depersonalized histories that undergird daily life, narrative tropes, and mythologies of crime are permitted to play an outsized role. There is no place, as it stands, for simultaneity in truth or a multiplicity of character. This article thinks of ways to render collective transgression and the complexity of truth legally cognizable and to afford individual defendants full subject status as, I argue, the Sixth Amendment demands. It turns to a source famed for disrupting perception and the study of how and why perception is to be unsettled: Russian Formalism.