Academic journal article Harvard Law Review

The Political Constitution of Criminal Justice

Academic journal article Harvard Law Review

The Political Constitution of Criminal Justice

Article excerpt




   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


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


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


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.


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. …

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