Academic journal article Harvard Law Review

Systemic Facts: Toward Institutional Awareness in Criminal Courts

Academic journal article Harvard Law Review

Systemic Facts: Toward Institutional Awareness in Criminal Courts

Article excerpt

CONTENTS  INTRODUCTION  I. SYSTEMIC CRIMINAL JUSTICE, TRANSACTIONAL CRIMINAL COURTS   A. The Regulatory Jurisprudence of Constitutional Criminal Law   B. The Challenge of Transactional Myopia   C. A Partial Critique of the New Administrativist Turn  II. SYSTEMIC FACTS : CATALYSTS OF INSTITUTIONAL AWARENESS  III. SYSTEMIC FACTS IN OPERATION   A. Understanding the Police     1. Assessing Consistency     2 Assessing Descriptive Accuracy     3. Assessing Predictive Accuracy   B. Monitoring the Prosecution     1. Disclosing Exculpatory Information     2. Race-Based Jury Selection     3. Selective Prosecution  IV. TOWARD SYSTEMIC FACT FINDING   A. Overcoming Practical Obstacles     1. Competency     2. Cost & Capacity     3. Access to Systemic Information     4. Ideological Opposition   B. Situating Systemic Fact finding Within the Adversarial Process  CONCLUSION 

INTRODUCTION

A troubling tension has come to define constitutional criminal law, that large and ever-growing body of jurisprudence that serves as the principal mechanism for regulating American law enforcement. Substantively grounded in judicial precedent and enforced through the adjudicative process, this regulatory regime is fundamentally court-centric: it requires criminal courts to serve as the systemic regulators of first--and, in practice, often last--resort when it comes to channeling or constraining law enforcement authority and behavior. The process through which courts undertake that responsibility, however, is hardly designed to facilitate systemic judicial review. On the contrary, case-by-case adjudication naturally focuses judicial attention on the case-specific details of individual claims, presented by individual litigants, one case at a time. The very process of constitutional criminal adjudication, in other words, inculcates in criminal courts a transactional myopia that frustrates their capacity to recognize, understand, and engage the broader institutional dynamics of the criminal justice system--and thus to implement the "deterrent remedies" that constitutional criminal law expressly requires courts to utilize as tools for shaping and altering state action at the systemic level.

This Article is hardly the first to recognize this core tension. Indeed, an emerging scholarly view has come to see criminal courts' transactional myopia not only as a serious impediment to meaningfully systemic judicial review, but also as an essentially intractable feature of the criminal courts that renders them incapable of appreciating the broader institutional activities of the law enforcement entities they are called upon to regulate and oversee. (1) This diagnosis, in turn, has prompted calls to move away from criminal courts and toward a markedly different regulatory regime, a regime in which constitutionally grounded judicial review is largely replaced by an administrative framework built around law enforcement self-regulation. Rather than judging the lawfulness of law enforcement actions directly, courts in this new regime would instead judge the processes by which law enforcement actors judge themselves, ensuring that those processes adhere to basic norms of transparency and democratic accountability, but otherwise deferring to law enforcement actors when it comes to the substantive validity of the decisions, policies, and actions that those actors pursue.

This Article joins in the growing body of scholarship examining the vexing challenges presented by criminal courts' transactional myopia, a real and important institutional problem that arises from the narrow manner in which constitutional criminal adjudication is currently practiced. Contrary to the emerging scholarly view, however, I do not see the current state of affairs as inevitable or intractable. Criminal courts do not lack the capacity for broader institutional awareness of the criminal justice systems over which they preside. Rather, they have simply failed to realize a latent capacity for such awareness that already exists. …

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