Criminal Justice System

• Author: Richard S. Frase
• Pages: 713-717

Page 713

The BILL OF RIGHTS has sometimes been likened to a national code of CRIMINAL PROCEDURE. However, the Constitution regulates many important aspects of criminal justice that are not "procedural" in any sense; at the same time, it fails to regulate many other important aspects, both procedural and nonprocedural. Moreover, features of the criminal justice system that are subject to extensive constitutional limitations are not, in practice, so strictly regulated as is commonly believed. It is therefore appropriate to reflect on which important aspects of criminal justice are and are not governed by the Constitution, what factors explain these patterns, and what the future role of the Constitution should be in defining fundamental norms of criminal justice.

To evaluate the role of constitutional norms in criminal matters, it is necessary to analyze the entire criminal justice system. Each political entity in the United States (local, state, or federal) has such a system; it consists not only of the rules of EVIDENCE and procedure applicable in criminal matters, but also the major institutions of criminal

Page 714

justice (for example, the police, lawyers, judges, court and correctional officials), as well as the provisions of the criminal law (crimes, defenses, and penalties). This system can be envisioned as a process that begins with the definition of the criminal law and the institutions of justice; proceeds "chronologically" through increasingly selective stages of investigation, charging, adjudication, appellate review, and punishment; and ends with the continuing careers of convicted offenders, who all too often, begin the process all over again. Each of these stages of the process raises fundamental issues of justice and of individual-state relations that might be, but often are not, regulated by constitutional norms. At the same time, the enforcement of any such norm is limited by that norm's systemic context; specific rules are dependent on other rules, many of which are not subject to federal constitutional regulation. Thus, changes in specific constitutional norms are often canceled by compensating changes in other rules or practices in the same or different parts of the system.

The following is a list of the major issues at each stage of the above chronological flow model that are and are not subject to significant constitutional regulation:

The definition of crimes and penalties is largely unregulated by the Constitution, except for certain limitations imposed by the EX POST FACTO, BILL OF ATTAINDER, and EQUAL PROTECTION clauses, the FIRST AMENDMENT and Eighth Amendment, the RIGHT OF PRIVACY, and the VAGUENESS and fair notice doctrines. Almost all issues relating to the definition of defenses (e.g., self defense, intoxication, and insanity) are unregulated.

Except for the appointment and tenure of federal judges, the requirements of judicial neutrality in the issuance of warrants and at trial, and certain First Amendment limitations on the hiring and firing of public employees, the institutions of criminal justice are not regulated at all by the federal Constitution; many are also not closely governed by STATE CONSTITUTIONS. Important unregulated issues include selection and internal supervision of police, prosecutors, and correctional officials; selection and tenure of state judges; and training of police, prosecutors, judges, and defense attorneys.

The investigation of criminal charges is covered by highly detailed constitutional limitations as to SEARCH AND SEIZURE, POLICE INTERROGATION AND CONFESSIONS, the RIGHT TO COUNSEL, and BAIL. Important unregulated issues include police decisions to investigate or not investigate, to use informants and undercover police officers, and to charge some offenders and offenses, but not others; magistrate shopping; nighttime arrests and searches; searches when no one but police are present; use of arrest and pretrial detention in minor cases; prompt appearance in court; appellate review of pretrial detention; and nonbail release conditions.

Prosecutorial decisions to select offenders and charges, to later drop charges, and to engage in PLEA BARGAINING as to charges and the sentence, or both, have an enormous impact on case outcomes. However, except for very limited equal-protection and "vindictive prosecution" standards, these critical decisions are not regulated by the Constitution.

Other pretrial procedures covered by the Constitution include the GRAND JURY (in federal cases only), certain aspects of DISCOVERY, motions to exclude evidence, and SPEEDY TRIAL. However, the powers of the prosecution and the defense to obtain statements from potential witnesses (other than the defendant) before a trial are not regulated by the Constitution.

Extensive FAIR TRIAL rights are provided by the Constitution; examples are TRIAL BY JURY, right to counsel, CONFRONTATION with state witnesses, BURDEN OF PROOF, RIGHT AGAINST SELF-INCRIMINATION, and DOUBLE JEOPARDY. Important unregulated issues include the admissibility of the defendant's prior convictions or other misconduct, separation of guilt and sentencing evidence and findings, the necessity of written findings of guilt, multiple trials for the same offense in different states or in both state and federal systems, and most issues involving joinder of offenses and offenders in a single trial.

Many of the fair trial standards also apply to SENTENCING proceedings, but they apply more flexibly. The Constitution does not require formal findings or reasons for a particular sentence, nor does it limit guilty plea concessions. Except for the imposition of...