The Political Constitution of Criminal Justice

Stuntz, William J., Harvard Law Review

TABLE OF CONTENTS

INTRODUCTION

I. CRIME, POLITICS, AND THE CONSTITUTION

   A. The Allocation of Power
   B. Legislative Politics and the Constitution
      1. Policing and Procedure
      2. Defining Crimes and Sentences
       3. Spending
   C. Executive Branch Politics and the Constitution

II. REPRESENTATION REINFORCEMENT: A BLUEPRINT

    A. The Content of Constitutional Regulation
    B. The Method of Constitutional Regulation

III. A REFORM PROGRAM

     A. Policing the Police
     B. Defining Crimes and Adjudicating Guilt
     C. Punishment
     D. Federalism
     E. Imagining Constitutional Reform

CONCLUSION

The politics of crime is widely seen as punitive, racist, and inattentive to the interests of criminal suspects and defendants. Constitutional law is widely seen as a (partial) remedy for those ills. But in this instance, the cure may be causing the disease. At the margin, constitutional law pushes legislative attention--and budget dollars--away from policing and criminal adjudication and toward corrections. The law also widens the gap between the cost of investigating and prosecuting poor defendants and the cost of catching and punishing rich ones. Overcriminalization, overpunishment, discriminatory policing and prosecution, overfunding of prison construction and underfunding of everything else--these familiar political problems are more the consequences of constitutional regulation than justifications for it.

Solving these problems requires radical constitutional reform. The Article explains why, and then offers brief sketches of what that reform might look like in four areas: policing, adjudication and crime definition (two fields that are better seen as one), punishment, and federalism. It closes by explaining how reform could happen, and why it probably won't.

INTRODUCTION

Large literatures discuss the constitutional law of criminal justice and the politics of crime. To date, no substantial literature addresses the relationship between the two. At first blush, that relationship seems straightforward: politicians ignore the interests of criminal suspects and defendants, so the Supreme Court steps in to protect those interests. On this view, politics is to constitutional law as a disease is to the medicine that cures it.

America's politics of crime is indeed diseased. But the metaphor may get causation backward. The constitutional proceduralism of the 1960s and after helped to create the harsh justice (1) of the 1970s and after. Overcriminalization, excessive punishment, racially skewed drug enforcement, overfunding of prisons and underfunding of everything else--these familiar political problems are as much the consequences of constitutional regulation as the reasons for it. The medicine is reinforcing the disease.

Political incentives are the mechanism. Constitutional law creates a series of political taxes and subsidies, making some kinds of legislation and law enforcement more expensive and others cheaper. Since the 1960s, the Supreme Court has regulated policing and trial procedure aggressively, while leaving substantive criminal law and (until the past few years) (2) noncapital sentencing to the politicians. Consequently, legislators find it easy to expand criminal codes and raise sentences but harder to regulate policing and the trial process. These incentives apply to spending as well. Prison budgets receive a constitutional subsidy. Budgets for criminal adjudication and (especially) local police are subject to a constitutional tax. (3)

To see how perverse those taxes and subsidies are, it helps to visualize the criminal justice system as a giant funnel. Entering the broad end of the funnel are the tens of millions of men and women whom the police search or seize each year, most of them guilty of nothing worse than a traffic offense. (4) Slide down the funnel, and that broad pool of suspects narrows considerably, producing a smaller pool of criminal defendants: about two million per year charged with felonies, and several million more charged with misdemeanors. (5) Most of these are guilty, but not all, and a sizeable fraction of even the felons are let off with essentially no punishment. (6) Slide down a bit farther and the pool narrows more, to the 700,000 who enter prison each year. (7) Sadly, there are innocents here too--but presumably their number is small, and no one knows who they are. Notice the pattern: as one proceeds from policing to adjudication to punishment, the system's targets grow fewer, less politically attractive, and less likely to vote. (8)

Constitutional law inverts the funnel. Suspects receive the most constitutional protection, criminal defendants get less, and prisoners get least of all. Politically speaking, that structure is upside-down. Tens of millions of mostly innocent criminal suspects can win political battles, at least sometimes. Two million mostly guilty felony defendants will find those battles harder to win. Several hundred thousand already-convicted prisoners may find victory impossible. To put the point in concrete terms, abused suspects like Rodney King have a lot more political appeal than prisoners like Willie Horton (9)--and the Kings outnumber the Hortons by a considerable margin. Yet constitutional law chiefly protects the suspects, not the prisoners. Politicians are freest to regulate where regulation is most likely to be one-sided and punitive.

A similar pattern characterizes criminal justice spending. Over the past generation--the time when constitutional law has played a large role in American criminal justice--state legislators and members of Congress have dramatically shifted the distribution of law enforcement dollars. Police spending has risen a little faster than other government spending. (10) Spending on the adjudication process has risen a great deal more. (11) Spending on prisons has skyrocketed. (12) Legislators spend where they can also govern. Constitutional law gives them little room to govern policing, more control over adjudication, and nearly unlimited authority to dole out punishment. Budget dollars flow accordingly.

The bad effects do not end with legislation. The constitutional law of policing widens the gap between the cost of investigating middle- and upper-class suspects and the cost of investigating poor ones. The law of trial procedure does the same thing for criminal prosecution. That gap, combined with law enforcement agencies' budget pressures, pushes local police and prosecutors to focus too much attention on the crimes of the poor and too little on the crimes of the middle class. Given the demographics of poverty in America, that makes for a more racially discriminatory system--especially with respect to drug crime, where law enforcers' discretion matters most. There is no way to run a test, but it seems likely that because of the constitutional rules that govern policing and trial procedure, criminal law is broader, sentencing rules are harsher, key criminal justice institutions are more underfunded, and the population of arrestees and defendants is more racially skewed than would otherwise be the case. These are odd results indeed for law that is supposed to be "representation reinforcing," a corrective to politicians' tendency to ignore the interests of suspects and defendants. (13)

What would it take to make constitutional law genuinely representation reinforcing? The answer is: radical change. Constitutional law that reinforced healthy politics would be different in nearly every respect from current law. Its animating goals would be to ensure legality and fight discrimination, not to protect privacy and extend jury power. It would focus more on macro incentives--the kind that drive legislation and the allocation of money and manpower--and less on the micro kind that dominate the law today. It would be more flexible and open to innovation, hence more political market-friendly. To use Michael Dorf's and Charles Sabel's helpful terminology, such law would be both more democratic and more experimentalist. (14) Though reformed constitutional law would be much less intrusive than the current regime, it would also better protect criminal suspects and defendants, who get little benefit from the legal doctrines that allegedly safeguard their rights.

My goal in this Article is two-fold: to explain why radical change is needed, and to sketch what it might look like. Part I addresses the first of those two tasks, exploring the relationship between constitutional law and the politics of crime. Part II lays out the key characteristics of a more democratic experimentalist approach (hat tip to Dorf and Sabel) in this area. Part III applies these ideas, sketching a reform program for four areas: policing, adjudication and crime definition (legally two different topics, though they should be seen as one), punishment, and federalism. Part III concludes with a brief discussion of how these reforms might happen--and why they probably won't.

All proposals have their downsides; different readers will prefer different reform packages. Yet the basic argument does not depend on the particulars of any package. Current constitutional law makes the politics of criminal justice worse: more punitive, more racist, and less protective of individual liberty. That state of affairs is not inevitable. A different approach to constitutional law in this area would mean, over time, healthier politics--and a healthier criminal justice system.

I. CRIME, POLITICS, AND THE CONSTITUTION

Scholars generally agree that American politics is too punitive, discriminatory, and unconcerned with the interests of the criminal justice system's targets. (15) Politicians, voters, and the media get the bulk of the blame (16)--more than they deserve. (17) The law gets less than it deserves. Like the rest of us, politicians respond to incentives, and constitutional law creates bad ones: political taxes and subsidies that push politicians in precisely the directions scholars criticize.

I begin with a brief discussion of the lines of authority over policing, criminal adjudication, and punishment. The discussion then turns to constitutional law's perverse effects on the politics of legislation, and on the politics of policing and prosecution.

A. The Allocation of Power

The horizontal division of labor in America's criminal justice system is simple. Legislators write the laws that define crimes and sentences. They also write budgets for the agencies that enforce those laws: police forces, prosecutors' offices, public defenders' offices, courts, and prisons. Police officers decide when and whom to search and arrest. Prosecutors decide whom to charge and how severely. Judges interpret the laws legislators write, and exercise whatever sentencing discretion those laws give them.

The vertical allocation of power is more complex. Begin with the odd truth that local governments do most criminal law enforcement. Local police departments and county sheriffs' offices employ roughly 700,000 police officers, (18) compared to only 56,000 state troopers (19) and 11,000 FBI agents. (20) Local cops and state police together make some 13 million arrests; (21) FBI agents make only 11,000. (22) The data on prosecution is similar. Roughly 27,000 local prosecutors (23) prosecute 1.1 million felony cases each year. (24) By contrast, the 5300 lawyers who work in United States Attorneys' offices (25) bring only 66,000 felony prosecutions per year. (26) Each year sees roughly 320,000 state court felony drug convictions, (27) compared with 25,000 in federal court. (28) Local prosecutors convict 173,000 violent felons each year; (29) their federal counterparts convict a mere 2600, plus another 4900 for weapons offenses. (30) The bottom line is clear: Local law enforcement is the main course. Federal law enforcement is, by comparison, small potatoes.

Nearly all local arrests and prosecutions are governed by state criminal codes and state sentencing rules. State legislators are responsible for those codes and rules, though they sometimes delegate a large measure of their sentencing power to sentencing commissions or judges. Congress defines federal crimes and sentences, with the help of the Federal Sentencing Commission. Over time, members of Congress have tended to exercise more power and the Commission less. (31) The Supreme Court's decision in United States v. Booker (32) reshuffled the cards, shifting power from Congress to federal judges. (33)

Budgets are more straightforward. Congress and state legislatures decide how much to spend on federal and state law enforcement agencies, and on federal and state prisons. The same is mostly true of federal and state courts, though local governments pay a large share of the bill for state court systems. (34) Public defenders are funded differently in different places --sometimes locally, sometimes state-wide, sometimes a mix of the two. (35) Local governments pay the large majority of local prosecutors' budgets, (36) and an even larger share of local police budgets. (37) Finally, the locals pay most of the cost of local jails, which house about one-third of America's inmate population. (38)

Divide these various expenditures into three chronological phases--policing, adjudication, and punishment--and some interesting patterns emerge. Local governments pay 70% of the total cost of policing (and 92% of the cost of local policing, which is the kind that matters most), 42% of the cost of criminal adjudication, and 29% of the cost of corrections. (39) Though spending on all three phases has risen over the past thirty years, spending in the latter two categories has risen substantially more. Nationwide, spending on policing rose 148% from 1972 to 2001. (40) Spending on adjudication and corrections rose 298% and 455%, respectively. (41) The prison population multiplied seven-fold. (42) As those numbers suggest, federal and state spending is reshaping the system, changing its focus from policing to punishment. (43)

The final aspect of the allocation of power over American criminal justice is constitutional law itself. Fourth and Fifth Amendment law largely governs police searches and seizures and interrogation of suspects. State and federal statutes play a significant role in those areas, but most of those statutes deal with subjects that the Supreme Court has expressly declined to regulate. (44) The story with respect to trial procedure is similar. Constitutional law governs the most important procedures: the scope of the right to trial by jury (45) and jury selection, (46) burdens of proof, (47) the finality of verdicts, (48) the right to confront opposing witnesses, (49) and so on. Though non-constitutional law plays a large role in shaping discovery, (50) so do a pair of constitutional doctrines: the privilege against self-incrimination limits defendants' disclosure, (51) while Brady doctrine expands the government's. (52) Last but not least, the Sixth Amendment right to the effective assistance of counsel regulates the quality of representation defendants receive. (53)

By contrast, constitutional law places few limits on crime definition, (54) save for crimes that involve speech, (55) consensual sex, (56) or reproduction. (57) (The large majority of crimes involve none of those things.) Until Apprendi v. New Jersey, (58) the constitutional law of noncapital sentencing was similarly restrained. Today, Apprendi doctrine restricts sentencing procedure, but only where sentencing is done by rule. (59) Substantive sentencing doctrine remains unregulated, (60) as do both substance and process where sentencing is discretionary. (61) Broadly speaking, capital punishment follows the same pattern, regulating procedure heavily and substance lightly--though both kinds of regulation are more intensive in death penalty cases. (62)

In three contexts--police discretion, prosecutorial discretion, and plea bargaining--the absence of constitutional regulation plays a central role in the system. Police officers are free to choose whom to search and arrest as long as they satisfy the relevant Fourth Amendment standards. (63) Technically, they may not discriminate on the basis of race or other protected characteristics, but as a practical matter their discretion is nearly total. That matters little for crimes like murder or armed robbery. Investigating those crimes is politically mandatory, and the people and places investigated depend on the people and places victimized. But police discretion matters a great deal when it comes to drug crime. Illegal drugs are scattered through the population. Whom the police catch depends on where they look. Where they look is largely up to them.

Prosecutorial discretion is, if anything, even broader. (64) Official discrimination is barred but even where it exists, proof of discriminatory intent is impossible. (65) Laws need not be regularly enforced. Prosecutors can charge a handful of defendants and ignore hundreds of thousands of violators. (66) The same proposition appears to hold for sentencing rules. (67) Which leads to the third example of a constitutional dog not barking: the (non-)regulation of plea bargaining. The Supreme Court has consistently refused to place even modest limits on the threats the government may use to extract guilty pleas. (68) And thus far, the Court has declined to require that the government disclose exculpatory evidence prior to entry of a guilty plea. (69) In criminal trials, the Constitution is omnipresent. In guilty pleas, it is nearly invisible.

B. Legislative Politics and the Constitution

When the Supreme Court constitutionalized criminal procedure in the 1960s the conventional wisdom, evidently shared by the Justices, held that elected legislators would never adequately protect the interests of criminal suspects and defendants. That view seemed plausible at the time--though the contrary view was also plausible, as Corinna Lain and Orin Kerr have shown. (70) Today, the Justices' political prophecy looks either wrong or self-fulfilling. Members of Congress and state legislators can and do protect the interests of the criminal justice system's targets. That protection follows some basic patterns. Legislators are more likely to craft fair procedures than to write fair substantive laws, and more likely to guard against abusive policing than to prevent excessive punishment. The Court drove legislators, along with the dollars they control, away from those areas where legislation might have done the most good (policing and procedure), and into those areas where it is bound to do the most harm (crime definition and sentencing).

Three propositions are key. First, constitutional law makes legislative regulation of constitutionalized subjects politically costly. Second, for the past few decades, constitutional law has made legislation in constitutionally unregulated areas politically cheap. Third, constitutional law distorts state and federal spending. Congress and state legislatures spend where they can also govern, and constitutional law makes governing policing and trial procedure difficult.

1. Policing and Procedure.--Constitutional rules of policing and trial procedure are mandatory; legislators may add to but cannot replace them. At a glance, that seems obviously right--of course legislators cannot substitute their own preferred rules for constitutional mandates--but it is far from inevitable, and as a matter of political economy it is probably perverse. Default rules would encourage legislative protection of constitutional interests. If Miranda were a default rather than a mandatory rule, (71) legislators who dislike Miranda might join with legislators who want better limits on police coercion to pass, say, laws requiring video- and audiotaping of interrogation sessions. (72) That is how constitutional defaults work: they expand support for alternative regulatory strategies. (73)

Mandatory rules have the opposite effect. The existence of any given constitutional rule tends to reduce support for friendly legislation. Like the marginal benefit of most things, the marginal benefit of regulation declines; each new increment is worth less than the one before. One can imagine a number of different legal rules aimed at stopping coercive police interrogation: Miranda-style warnings, mandatory taping, a list of forbidden interrogation tactics, and no doubt there are others. Any of those rules would likely stop the most egregious police misconduct. Once one rule is in place, therefore, the benefit of adding another is bound to shrink. That pattern holds throughout criminal procedure.

As marginal benefit falls, marginal cost rises. The government pays for criminal procedure rules in the coin of forgone arrests and convictions. When a particular rule turns winning cases into losers, prosecutors seek substitutes: other cases to take the place of the ones lost. (74) Naturally, the highest-value substitutes go first. As regulation piles up and more cases fall, the substitutes are worth less and less. The cost of the lost cases grows. At some point, the substitutes run out and the cost jumps sharply --lost cases are simply lost; there are no replacements. So the marginal cost curve looks like a partially flattened S:

The more constitutional law regulates, the more likely legislators are to find themselves in the expensive portion of that curve.

In theory, the costs of different regulatory options might overlap; if the overlap were large enough, the marginal cost of adding new regulation would be small. The reality is different. Miranda's costs are felt when suspects invoke their rights immediately after hearing the famous warnings. (75) Mandatory taping would lead to lost confessions in cases involving long, drawn-out questioning of vulnerable suspects. A list of banned tactics would cost the police confessions in cases in which those tactics would be especially useful, or perhaps especially tempting to the police. These sets of lost cases overlap only slightly.

Take another example. One might regulate street stops by mandating individualized suspicion, as current Fourth Amendment law does, or by an antidiscrimination rule. Requiring individualized suspicion encourages the police to shift resources from middle-class neighborhoods, where drug crime takes place indoors, to poor ones, where open-air drug markets and street gangs operate. (76) (The government can more easily show the requisite suspicion when officers witness some portion of the crime.) Because of the strong correlation between race and urban poverty, (77) a serious antidiscrimination rule would cut in the opposite direction, making street stops cheaper in wealthy areas and more expensive in poorer ones. These two forms of regulation have no substantial cost overlap.

Or, consider trial procedure. A broad jury trial right costs the government convictions of defendants who are most appealing to jurors. Raising the burden of proof costs cases in which the government can meet a lower burden but not the higher one. Both rules seek greater accuracy, but they seek that goal in different ways, so their cost is felt in different cases. If constitutional law adopts one of these rules, the marginal cost of the second is higher than it would have been given a constitutional blank slate.

The bottom line is simple. Constitutional regulation raises the political price of legislative regulation. But how much does the higher price matter? Perhaps the answer is, not much. Legislative regulation of policing and trial procedure might be politically impossible regardless of what the Supreme Court does. If so, the political costs of criminal procedure doctrines are beside the point.

Both theory and evidence suggest otherwise. Legislators respond to powerful interest groups. Contrary to the conventional wisdom, criminal suspects are a powerful interest group. The police stop 23 million motorists per year. (78) No one knows how many pedestrians the police stop, but that number is probably higher still. (79) Even if suspects vote at a lower rate than the general population (as they surely do), no politician can afford to ignore the interests of that many constituents. And there is evidence that even consensual police-citizen encounters are often traumatic, (80) which suggests a fair amount of latent popular demand for regulating policing. If those doing the demanding were all criminals, legislators might shrug their shoulders and do nothing. But the data suggest that most suspects in cars are guilty of nothing more than a traffic offense, (81) while most suspects on foot are guilty of nothing, period. (82) Plus, legislators can protect some suspects without protecting all. Search and seizure regulation can be fine-grained. Drug suspects, white-collar suspects, and violent crime suspects need not be treated alike. And regulation can protect not only suspects but the police as well, given that regulatory legislation can be (and extensive regulation probably must be) coupled with spending. Advancing the interests of both the police and the victims of police misconduct sounds like a winning political package.

Legislative regulation of the adjudication process--with the goal of protecting defendants' interests, not just the government's--is likewise more politically attractive than the conventional wisdom would have it. Compare criminal procedure legislation with legislation changing substantive criminal law. Adding new crimes makes it cheaper to prosecute offenders whom prosecutors can charge with the new crimes. Making the criminal process more efficient lowers the cost of prosecuting all offenders. Better crime definition raises prosecutors' incentive to charge the newly defined crime properly. More accurate procedures raise prosecutors' incentive to charge properly across the board. Changes in substantive criminal law affect those whose conduct is close to the borderline of criminal liability: those whose conduct is just barely or almost-but-not-quite criminal. Procedural legislation affects them too, but it also affects people whom the authorities wrongly suspect--some of whom are wholly innocent, not just dancing close to the legal line. Innocents suspected of others' crimes are a more politically attractive interest group than borderline crooks.

That proposition may explain why, historically, legislatures have been a good deal quicker to expand criminal procedure protections than to contract criminal liability. (83) Craig Lerner notes that Congress regularly criminalizes acts that its members might commit. Senators and Representatives protect their interests not through careful definition of the relevant crimes, but through carefully regulated procedures. (84) In theory, Joseph McDade might have persuaded his House colleagues to narrow the federal bribery laws under which he was prosecuted. (He beat the rap.) In practice, McDade knew that procedural limits on white-collar investigations were an easier political sell. (85)

Finally, if legislators care about deterring crime, as they surely do, theory suggests they should value procedures and budgets more than substantive laws. Consider a recently proposed reform of the law of sexual assault. Ian Ayres and Katharine Baker suggest criminalizing "reckless sex," defined as failure to use a condom in an initial sexual encounter. (86) Ayres and Baker defend their proposal as a winnable alternative to acquaintance rape prosecutions, especially for prosecutions of upper-class defendants; (87) they also suggest that reckless sex laws would reduce the spread of sexually transmitted diseases. (88) These are worthy goals. But no criminal prohibition is likely to achieve them. Prosecutors decline to prosecute upscale sexual assault not because substantive law immunizes the relevant conduct--it doesn't--but because the criminal process provides a host of litigation opportunities for well-off defendants, while prosecutors' budgets are tight. That is why wealthy defendants tend to defeat local district attorneys regardless of the crime charged: think of Kobe Bryant, (89) Michael Jackson, (90) or Tyco lawyer Mark Belnick. (91) Changing that pattern would require a combination of streamlined procedures and bigger prosecutorial budgets, not broader criminal laws.

One can put the point more generally. Accurate procedures make deterrent signals clearer and more powerful. Fair procedures (not the same thing) are more likely to be perceived as legitimate--and, if the relevant social science evidence is to be believed, perceptions of legitimacy are critical to the system's ability to command obedience. (92) Efficient procedures allow law enforcers to get more bang for the buck. Legislative regulation of policing and procedure is perfectly natural.

It is also common, where the Supreme Court has not already occupied the relevant field. Consider privacy-based regulation of police investigations. Federal statutes protect privacy interests in government records, newsrooms, phone conversations and numbers called, bank records, cable television, video rentals, and e-mail--and that is a partial list. (93) In several of those areas, Congress acted shortly after the Supreme Court expressly declined to protect the relevant activity through the Fourth Amendment. (94) As to most of the others, the Justices had not spoken, though their decisions suggested such privacy interests would get short shrift. (95) Judging from the overheated rhetoric surrounding debates over its reauthorization, the Patriot Act (96) might seem to have seriously undermined these protections. (97) It hasn't. (98) Indeed, the pendulum seems to be swinging in the other direction today--witness the House of Representatives' recent vote to protect records of libraries and bookstores. (99)

These federal statutes protect mostly (though not exclusively) middle- and upper-class suspects. Perhaps constitutional law's role is to protect poorer targets of police attention. If so, the law fails badly. The Fourth Amendment protects "reasonable" privacy expectations. (100) Expectations are deemed reasonable when they conform to existing social arrangements--people in houses enjoy more Fourth Amendment protection than apartment dwellers (who in turn enjoy more than the homeless), suspects in cars are better protected than suspects who use public transportation, and the list goes on. (101) Legislative privacy protection is no more class-biased than its constitutional counterpart. Probably less so.

Privacy aside, legislators tend to fill whatever regulatory space constitutional law leaves open--even when those whom the legislation aims to protect are poor, black, or both. That description fits the most important legal initiative of the past twenty years in the sphere of police regulation: section 14141, the federal statute that authorizes broad injunctive relief if federal government lawyers prove a pattern of constitutional violations. (102) Thus far, that statute has been used to redress a litany of blue-collar police misconduct: racial profiling, corruption, police brutality, and concocting fake evidence. (103) That statute was passed eleven years after the Supreme Court held that victims of police brutality were not entitled to injunctive relief against the police departments that victimized them, thereby ruling out injunctions as a significant tool for addressing police misconduct. (104) More than a dozen states have passed legislation banning racial profiling on their highways, requiring that police keep detailed records of traffic stops (including the demographics of detained motorists), or both. (105) That state legislation followed the 1996 Supreme Court decision in Whren v. United States, (106) effectively barring Fourth Amendment claims in profiling cases. (107) Notwithstanding Miranda, several states mandate the taping of police interrogation sessions. (108) These moves cannot fairly be characterized as protecting only wealthy suspects.

A similar pattern holds for legislation governing trial procedure. Recent state and federal legislation protecting and encouraging DNA-based innocence claims (109) benefits poor defendants, not rich ones, as the latter can afford to pay for such tests themselves. Those laws were enacted after the Supreme Court barred habeas corpus relief for freestanding innocence claims. (110) State legislatures have created and funded state crime labs that foster better use of forensic evidence, partly for the purpose of identifying and exonerating innocent suspects. (111) State spending on appointed counsel for indigent defendants increased more than two-and-one-half times in inflation-adjusted dollars between 1982 and 1999, a much bigger increase than police budgets saw during the same years. (112) These phenomena are inconsistent with the notion that state legislators and members of Congress attach no value to the procedural interests of criminal defendants, or value the interests of wealthy defendants only. The same is true of the mountain of state and federal legislation dealing with sentencing procedure, nearly all passed since the mid-1970s. (113) Of all aspects of the criminal process, sentencing has seen the most legal innovation over the past three decades. Pre-Apprendi, it was also the least constitutionally regulated part of the process. And while federal sentencing legislation has seemed notably one-sided (more on that below), that criticism cannot fairly be leveled at state sentencing legislation. (114)

There is more. Constitutional law addresses only the interests of law enforcers and those whom they target. Of course--constitutional law is made by courts through litigation, and judges are trained to focus on the interests of the litigants. Legislators are not so limited. Consequently, criminal procedure legislation often takes account of interests that the litigants do not represent, as with rape shield laws (115) and victims' rights statutes. (116)

Most of the examples in the last few paragraphs are recent; the legislation in question has been enacted since the late 1960s, much of it in the past decade. In part, that is probably due to changed political preferences: Americans seem to value both privacy and process more than they once did. The rising power of black voters has no doubt also played an important role. (117) But the history of legislation on policing and procedure did not begin in 1968. (118) American police interrogation law began with state statutes banning the "third degree." Most of those statutes were passed early in the twentieth century, (119) though some came sooner: Illinois criminalized coercive interrogation in …

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Publication information: Article title: The Political Constitution of Criminal Justice. Contributors: Stuntz, William J. - Author. Journal title: Harvard Law Review. Volume: 119. Issue: 3 Publication date: January 2006. Page number: 780+. © 2007 Harvard Law Review Association. COPYRIGHT 2006 Gale Group.

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