PROSECUTION IN PUBLIC, PROSECUTION IN PRIVATE.

AuthorOuziel, Lauren M.

INTRODUCTION 1072 I. EVOLUTION AND STASIS 1079 A. Private Prosecutors, Public Investigations 1079 B. The Rise of Public Prosecutors find the Shifting of Enforcement Power 1082 II. How THE CURRENT PUBLIC-PRIVATE BOUNDARY ENLARGES CRIMINAL ENFORCEMENT POWER 1084 A. Secret Criminal Processes: Past and Present 1084 1. Grand Jury Secrecy 1084 a. Historical Development 1084 b. Current Dynamics 1087 2. Targeting 1092 a. Historical Development 1092 b. Current Dynamics 1093 3. Declination 1098 a. Historical Development 1098 b. Current Dynamics 1100 B. Transparency 1107 1. Deceptiveness 1108 2. Incentives 1112 3. A Self-Perpetuating Spiral 1115 III. REALLOCATING SECRECY AND TRANSPARENCY 1116 A. What Type of Transparency ? 1116 B. Calibrating Secrecy and Transparency in Criminal Procedure 1119 1. Grand Jury Secrecy 1119 2. Targeting and Declination 1120 CONCLUSION 1129 APPENDIX: GRAND JURY SECRECY RULES 1131 INTRODUCTION

Some prosecutorial decisions are subject to public scrutiny, while others are shielded from it. Criminal procedure sets the boundary between the two. This Article is about the relationship between that boundary and the allocation of institutional power in the criminal process.

Criminal procedure serves a variety of functions, among them distributing power between enforcers and targets. (1) The procedures that collectively delineate public from private in the criminal process (2) draw a boundary between the pre- and post-charging stages: generally speaking, enforcement at the pre-charging stage unfolds in secret, while that at the post-charging stage takes place in view of the public or, at a minimum, defense attorneys and courts. In place since the Founding, when enforcement power was mostly wielded by victims and community members, this boundary once served to constrain enforcement overreach. But changes to the structures and institutions of American criminal enforcement over the last two centuries have inverted that function. Today, criminal procedure's boundary between public and private aggrandizes enforcement power rather than constraining it.

The development has been both insidious and influential--garnering relatively little attention even as it has fundamentally redistributed power within the criminal process. This is because both participants in and observers of that process have fallen back on historical justifications for the public-private boundary, even as institutional changes have rendered those justifications largely obsolete. Pre-charging secrecy rules and norms are said to ensure investigative integrity and protect against unfounded accusations, (3) while post-charging publicity rights are celebrated as bulwarks against enforcement abuse. (4) But in today's enforcement ecosystem, this arrangement has it backwards.

Transparency in the post-charging stage constrains only the last, and arguably least consequential, of a series of enforcement actions. The more impactful earlier actions--decisions on whether to investigate, whom to target, and whether and what crimes to charge--are made in secret, free from the gaze of defense attorneys, judges, and the public. (5) What's more, enforcers' near-exclusive control over the extent of secrecy in those earlier stages serves to protect them from public accounting more than it protects from investigative or reputational harms. (6) And the mechanisms that do exist to hold enforcers accountable--judicial, electoral, even internal--are handicapped by obscured visibility: public outcomes (charges filed, convictions obtained, sentences imposed) are not useful indicators in isolation from the private actions that preceded them.

This Article exposes the allocation of public and private in the criminal process as an allocation of power--and challenges it. The Article excavates the history behind the current public-private boundary, demonstrating how it once served to constrain enforcement power. It reveals criminal procedure's failure to adapt to changes in the enforcement power structure, demonstrating how the procedures delineating public and private no longer do the work courts, scholars, and policymakers have largely assumed them to do. It exposes the substantial yet largely unappreciated costs of this failure. Finally, the Article argues for a realignment of the boundary, one that manages the particular risks and harms of enforcement power in our time.

Unsettling assumptions about the current allocation of public and private in criminal enforcement is an urgent project. New technologies are enabling greater public visibility into previously shrouded aspects of the criminal process. (7) New record-keeping laws* and voluntary data initiatives (9) in some jurisdictions have enabled previously shrouded practices to come to light. Recent civil rights invesdgations by the federal government (10) along with civil rights claims by private parties," have exposed unconstitutional or at least undesirable targeting and declination practices in some jurisdictions. And recent scholarship has revealed the effects of early-stage enforcement decisions on incareeration and other forms of penal control--both in terms of scope (how many people) and demographics (which people). (12)

Yet scholarship on secrecy and transparency in criminal procedure remains largely focused on the post-charging stage, with much of the critique leveled at the relatively secretive plea-bargaining process. (13) While convictions resulting from plea bargaining are more opaque than those resulting from trial, they are nevertheless visible and publicly documented, the product of negotiation by adversaries and at least some form of judicial review. This is not to describe plea bargains as transparent, adversaries as equals, or the judicial role as significant, but rather to highlight the relative transparency and accountability generated by the plea-bargaining process as compared to that which preceded it: the decision to investigate a person; to arrest him; to charge him, and with what crimes. The relatively greater secrecy at those earlier decision points is also more concerning. While the partial opacity of plea bargaining surely influences case outcomes, it is early-stage enforcement decisions that set the parameters of the bargain. And near complete secrecy in those early-stage decisions impedes defense attorneys, judges, and the public from understanding how and why those parameters came to be.

The limited scholarship on transparency at the pre-charging stage-has largely focused on the generation of rules and policies to govern the exercise of discretion, and which institutional actors are best suited to create and enforce them. (14) While important, these projects have bypassed a foundational issue, namely, that secrecy in early-stage enforcement decisions is itself a policy choice--one that profoundly influences enforcement while impeding attempts to understand and improve it. And while some reformers have recently acknowledged this, (15) enacted policy changes have largely focused on improving disclosures of post-charging data, (16) with little attention to the pre-charging stage or to the particular categories of disclosures that will generate the greatest benefits to accountability relative to their costs. These oversights matter, because as recent work in behavioral economics and public administration has shown, "transparency" is neither a monolith nor a panacea: some forms of transparency may impede rather than enhance accountability, (17) while others may simply prove ineffectual. (18) In short, it is high time to treat where we draw the boundary between secrecy and transparency as a policy choice, one with a complicated set of costs and benefits--and to consider whether the current mapping pays its way.

This Article shows that it does not. Study of the pivotal secret aspects of the criminal process--the decision to target, the decision to decline charges, and the presentation of evidence to the grand jury--reveals two harmful and underappreciated power dynamics. One is the inequitable distribution of secrecy's dividends. Police and prosecutors can and do utilize secrecy selectively to their benefit, while other intended beneficiaries (targets and subjects) generally cannot. The second is aggregate effects. Though secrecy is designed to protect individual cases and investigations, it collectively prevents insight into patterns of early-stage enforcement decisions across time, location, case type, and demographic group.

An analysis of transparency--or, more accurately, partial transparency--in the criminal process likewise reveals two important effects on enforcement oversight and, by extension, enforcement power and discretion. First, partial transparency impedes observers' ability to detect the causes of visible (i.e., end-stage) enforcement patterns. Researehers, for instance, routinely use public sentencing data to draw causal inferences about sentencing disparities, (19) even though that data is an artifact of earlier, nonpublic decisions about arrests and charging. (20) Second, partial transparency incentivizes enforcers to maximize disclosed end-stage outputs (arrests, convictions, and imposed penalties) and so steers earlier-stage decisions to that end. (21) And what few efforts exist to assess early-stage enforcement practices are hampered by reliance on law enforcement's self-reporting, making it difficult for overseers to assess whether data reflects actual practice or inaccurate reporting of it. (22)

The boundary between public and private in criminal procedure has shaped not only the exercise of enforcement power and discretion, but also public perceptions of it. One way is obvious: enforcers' control over the dissemination of information on early-stage decisionmaking allows them to control the enforcement narrative. Another is less obvious, and perhaps more pernicious. The lack of broad public visibility into the vast majority of early-stage enforcement...

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