Comparative Domestic Constitutionalism: Rethinking Criminal Procedure Using the Administrative Constitution

I. INTRODUCTION: THE LAY OF THE LANDS

The Administrative Procedure Act (1) (APA) is as much a constitution as a statute. (2) As with all constitutions, the nature of the APA goes far in determining the topography of the procedural landscape that grows upon it. The Act regulates agency procedure by creating a transsubstantive procedural floor applicable to virtually all agencies that may be, and often is, supplemented by substance-specific procedures that Congress and agencies establish. (Courts, importantly, are forbidden by Supreme Court precedent from imposing procedural requirements that exceed those contained in the APA.) To the geographically inclined, the APA is the floor of a broad procedural valley; across the valley lie scattered hills of substance-specific procedure piled up by agencies and legislatures based on judgments about which procedures befit which agencies. The resulting landscape is an uneven terrain in which all agencies share a basic procedure, but procedural requirements as a whole differ from agency to agency and, consequently, subject matter to subject matter.

This administrative constitution accords agencies wide discretion to enact rules and adjudicate controversies, which courts review for "reasonableness." (3) When courts do overturn an agency's action--or, rarely, a congressional delegation--they tend to do so through the imposition of rules that generate incentives for structured processes, rather than through commands that impose specific procedures for agency actors to follow. United States v. Mead Corp., (4) for example, dangles Chevron deference (5) as a carrot to entice Congress and agencies to employ formal procedures but leaves it to those actors to determine precisely what kind.

Elsewhere, the Bill of Rights (plus a few lines of the Fourteenth Amendment) frames another proceduralist constitution: the constitution of criminal procedure. Like the administrative constitution, the criminal procedure constitution is transsubstantive, cutting across different types and severities of crimes. Here, again, legislative and executive actors are free to supplement the constitutional floor with substance-specific (or transsubstantive) procedures of their own design. But unlike the administrative constitution, the judicially interpreted floors of the criminal procedure constitution are detailed and demanding in a way that tends to stifle substance-specific supplementation. In many places, the criminal procedure constitution "occupies the field" (6)--picture a high procedural plateau, not a valley. The resulting landscape is more even, comprising a basically uniform code of judge-written procedural rules applicable to rape, fraud, and drug possession alike.

Here, too, agency actors (prosecutors) are accorded remarkably wide discretion to "adjudicate" cases--through plea bargaining. (7) This adjudication is the norm for criminal justice, leading to roughly ninety-five percent of all convictions. (8) Unlike agency action under the administrative constitution, however, plea bargaining need not survive "reasonableness" review. And in contrast to the administrative setting, when courts overturn executive action in the criminal context, they typically do so through top-down, process-imposing rules that require specific actors to do (or not to do) very specific things. (Think Miranda. (9))

The administrative and criminal procedure constitutions support two procedural topographies so dissimilar they might have evolved on different planets, yet they coexist on the very same map of American law. Drawing inspiration from comparative constitutionalism, this Note contrasts these two procedural constitutions along three major axes, confronting three far-reaching questions. First, when should procedure be transsubstantive and when substance-specific? Does it make sense that the FTC and the EPA follow different procedures whereas homicide and fraud are governed by the same rules? Second, what is the proper level of judicial review of agency action? Does reasonableness review get it right, and if so, should courts review plea bargains--the criminal justice analog to administrative adjudication--for reasonableness? (10) Third, when courts do regulate process, how should they do so? What are the advantages and disadvantages of process-imposing rules like Miranda relative to process-generating rules like Mead?

Comparative constitutional scholars teach that "[c]omparison is at the center of all serious inquiry and learning." (11) They milk that insight, however, largely at the transnational level. This Note suggests the potential of domesticating comparative constitutionalism, in what might be called "comparative domestic constitutionalism." Although all comparative endeavors are vulnerable to the objection that contextual differences render the comparisons irrelevant, (12) comparison here is indeed fruitful because, in many senses, criminal law is administrative law. The typical criminal case is "adjudicated" not by a court, but by an agency actor: the prosecutor. "Agencies" rule over corrections and sentencing as well. (13) Recent scholarship capitalizing on this relationship peppers the field of criminal procedure. (14)

While this Note is in large part descriptive and comparative, its normative focus is on criminal procedure and what that field might learn from the administrative constitution. Borrowing again from comparative constitutional scholars, this Note supposes that the principal benefit of comparative work is its capacity to reveal the presuppositions that drive generally unquestioned "domestic" constitutional norms. (15) By comparison to the administrative constitution, then, this Note aspires to challenge criminal procedure's norms of judicially imposed transsubstantivity, a hands-off approach to plea bargaining, and the imposition, rather than generation, of process. Given its ambitious goal and limited space, the Note paints constitutional landscapes with the widest of brushes, obscuring doctrinal quirks in the hope of probing deeper. Driving this approach is a belief that reform in criminal procedure will come not from tweaking this particular conduct rule or that, but from shifting the bedrock that supports the entire edifice.

II. SUBSTANCE-SPECIFIC PROCEDURAL REGULATION

A tour of the administrative state reveals different procedural law at each stop. The EPA, for example, publishes reports by a Scientific Review Committee and the National Academy of Sciences before promulgating rules. (16) And the FTC accompanies its rules with a statement of economic effect, including the impact on small businesses and consumers. (17) The connection between agencies and particular substantive themes thus implies that administrative procedure is, in large part, substance-specific. Moreover, even within one substantive domain, agencies are free to streamline procedures when a particular case presents good cause, (18) meaning that administrative procedure is often not only substance-specific, but also case-specific.

Substance-specific procedural regulation--especially that crafted by agencies themselves--generates a number of interrelated benefits. First, almost tautologically, substance-specific procedures may be tailored to the particular subject matter under investigation, increasing efficacy. (19) Complex scientific or technical matters, for example, might call for sequential procedures, each with its own set of reviews and checks, or for broader and more detailed notice rules, so that the relevant scientific community can participate and correct any policy errors. Volatile decisions in which mistakes threaten tremendous social costs may warrant unusually extensive procedures as well. (20)

Second, substance-specific regimes conduce to efficient resource allocation. (21) For example, broadcast regulation is relatively open-ended, and the FCC may benefit from receiving diverse public views before publishing a proposed rule. But for the Atomic Energy Commission, processing such input might burn valuable resources better spent buying expertise. (22) Requiring both agencies to observe the same procedures would be wasteful. And the same effect replicates itself within a single agency's range of affairs. The D.C. Circuit recognized as much when it excused the EPA from formal, trial-type procedures for matters in which the factual issues "'relate[d] almost entirely to technical (or policy) matters' that ... '[could] just as easily (perhaps more effectively) be resolved through analysis of the administrative record and ... statements of the parties.'" (23)

Third, substance-specific procedural regulation increases fairness by providing interested parties the opportunity to voice their concerns effectively given the substantive issues at play.

Despite these significant upsides, substance specificity in administrative law was far from inevitable. Indeed, there was a time when it looked as though procedural regulation in the administrative system was becoming increasingly transsubstantive, as courts reviewing agency decisions imposed whatever procedures they felt were necessary for a "fair" proceeding. (24) In effect, these judicial decisions flooded the procedural valley, submerging certain agency-specific procedural hills and leaving others with only their peaks exposed.

In 1978, the Supreme Court intervened and drained the valley. In Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., (25) the Court unanimously barred judges from supplementing APA-mandated rulemaking procedures with devices of their own creation. (26) "Agencies are free to grant additional procedural rights," the Court admonished, "but reviewing courts are generally not free to impose them if the agencies have not chosen to grant them." (27) The Court's decision was rooted in notions of procedural substance specificity. The Court quoted legislative history calling the APA "an outline of minimum essential rights and procedures" (in other words, merely a valley). (28) It was up to the agencies to determine "when extra procedural devices should be employed" beyond this minimum. (29) Allowing courts to demand additional procedures, the Court feared, would sanction an undesirable uniformity of procedure because agencies "would undoubtedly adopt full adjudicatory procedures in every instance." (30)

The better idea, and Congress's original plan, was to have agencies craft procedural rules optimized around their internal organization and the nature of the area they were charged with …

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Publication information: Article title: Comparative Domestic Constitutionalism: Rethinking Criminal Procedure Using the Administrative Constitution. Contributors: Not available. Journal title: Harvard Law Review. Volume: 119. Issue: 8 Publication date: June 2006. Page number: 2530+. © 2007 Harvard Law Review Association. COPYRIGHT 2006 Gale Group.

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