The Uneasy Relationship between Criminal Procedure and Criminal Justice

Article excerpt

Most talk about the law of criminal procedure treats that law as a self-contained universe. The picture looks something like this: The Supreme Court says that suspects and defendants have a right to be free from certain types of police or prosecutorial behavior. Police and prosecutors, for the most part, then do as they're told. When they don't, and when the misconduct is tied to criminal convictions, the courts reverse the convictions, thereby sending a message to misbehaving officials. Within the bounds of this picture there is room for a lot of debate about the wisdom or constitutional pedigree of particular doctrines, and the literature is filled with debate of that sort.(1) There is also room for theorizing about the optimal specificity of the rules the Supreme Court creates; the literature contains some of that, though less than it should.(2) Finally, there is room for arguing about remedies -- about whether reversing criminal convictions is an appropriate means of getting the police, prosecutors, and trial judges to do what the law says they ought to do. At least in the sphere of Fourth and Fifth Amendment law, a lively debate along those lines exists.(3) But for all their variety, these debates take for granted the same basic picture of the process, a process whose only variables are the rules themselves and the remedies for their violation.

The picture is, of course, wrong. Criminal procedure's rules and remedies are embedded in a larger system, a system that can adjust to those rules in ways other than obeying them. And the rules can in turn respond to the system in a variety of ways, not all of them pleasant. The more one focuses on that dynamic, the more problematic the law of criminal procedure seems.

The heart of the problem is the system's structure. The criminal justice system is dominated by a trio of forces: crime rates, the definition of crime (which of course partly determines crime rates), and funding decisions -- how much money to spend on police, prosecutors, defense attorneys, judges, and prisons. These forces determine the ratio of crimes to prosecutors and the ratio of prosecutions to public defenders, and those ratios in turn go far toward determining what the system does and how the system does it. But the law that defines what the criminal process looks like, the law that defines defendants' rights, is made by judges and Justices who have little information about crime rates and funding decisions, and whose incentives to take account of those factors may be perverse. High crime rates make it easy for prosecutors to substitute cases without strong procedural claims for cases with such claims. Underfunding of criminal defense counsel limits the number of procedural claims that can be pressed. Both phenomena make criminal procedure doctrines seem inexpensive to the appellate judges who define those doctrines. Unsurprisingly, given that regulating the criminal justice system has seemed cheap, the courts have done a lot of regulating -- more, one suspects, than they would have done in a world where defendants could afford to litigate more often and more aggressively, or where prosecutors could not so easily substitute some cases for others. Criminal procedure is thus distorted by forces its authors probably do not understand.

The distortion runs both ways. As courts have raised the cost of criminal investigation and prosecution, legislatures have sought out devices to reduce those costs. Severe limits on defense funding are the most obvious example, but not the only one. Expanded criminal liability makes it easier for the government to induce guilty pleas, as do high mandatory sentences that serve as useful threats against recalcitrant defendants. And guilty pleas avoid most of the potentially costly requirements that criminal procedure imposes. These strategies would no doubt be politically attractive anyway, but the law of criminal procedure makes them more so. Predictably, underfunding: overcriminalization, and oversentencing have increased as criminal procedure has expanded. …