Simplicity as Equality in Criminal Procedure

Harvard Law Review, April 2007 | Go to article overview

Simplicity as Equality in Criminal Procedure


Justice Black once loftily claimed that "[t]here can be no equal justice where the kind of trial a man gets depends on the amount of money he has." (1) In service of this principle, the Supreme Court recognized a constitutional right to publicly provided resources at trial and on appeal and crafted an intricate web of constitutional criminal procedure that initially appears to offer particular protection for poor defendants. Yet despite these judicial efforts, few would contend that a poor defendant is on equal footing with a rich one. Is Justice Black's definition of equal justice too narrow? Or does it represent an unattainable aspiration? Received wisdom is that ensuring a modicum of public resources and increasing procedural protections is the most the Court can do to promote equality. Additional resources cost too much money. Additional procedural protections cost too much justice. Requiring either flirts with legislative rather than judicial action.

This Note suggests that, despite its attempts to promote economic equality through criminal procedure, the Supreme Court has failed to account for a systemic source of inequality in criminal law: the complexity of the criminal process itself. The relative ability of wealthy defendants to exploit a broad range of technical procedures makes them less attractive to prosecutors, who, with limited resources but virtually unlimited discretion, are channeled away from wealthy defendants and toward poorer ones. Although complex procedural protections make convictions of any defendant more costly and less likely, they can be easily bypassed by plea bargaining and nullified by increased sentences. As a result, procedural complexity not only places the poor at a comparative disadvantage by providing procedural tools they are less equipped to employ, it may also place them in a worse absolute position by making them more likely to be charged with crimes that carry longer sentences.

This effect may be cyclical: In the face of severe sentences, the Court (which is concerned about substantive justice but loath to second-guess substantive punishment) adds to the complexity of procedural protections. This further encourages prosecutors to target the defendants least able to exploit them. And the higher costs and political process effects of complex procedures, in turn, encourage legislatures to increase substantive punishment. The system as a whole--a combination of complex procedures, prosecutors' rationing of limited resources, and politically rational legislatures--focuses an increasing amount of criminal punishment on the poor.

Better lawyers with greater resources will always provide an advantage in the criminal justice system. But unlike disparate wealth, the complexity of criminal procedure is not inevitable. In addition to focusing on whether individual defendants should be given greater resources or additional procedural protections, the Court (and legislatures) should consider the tendency of complex procedures to sort defendants according to wealth: the possibility that simplicity is equality.

The systemic effects of procedural complexity might be addressed in several ways. First, the Court could attempt to eliminate circumvention of its procedural protections, for example, by strengthening the standard for ineffective assistance of counsel or conducting substantive review of criminal sentences. (2) This Note holds these elements of the criminal process constant in order to focus on the underexplored benefits of procedural simplicity. Second, legislatures might be pushed to adopt measures that simplify statutory criminal procedure, such as altering Federal Rules to eliminate peremptory challenges (3) or increasing the role of the judge as trial manager. The real power of simplicity as equality, however, is that much of criminal procedure is uncontroversially within the judicial domain. Thus, the Supreme Court itself has the power to reduce the effects of economic inequality by simplifying criminal procedure.

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