Subconstitution al checks.

AuthorBaughman, Shima Baradaran


Constitutional checks are integral to the American constitutional system. (1) State and federal constitutions explicitly protect criminal defendants with individual rights that act as "checks" against government power. (2) The federal Constitution and most state constitutions provide individual constitutional rights, including the right to counsel, (3) the right to trial by jury, (4) the right to a grand jury, (5) the right against self-incrimination, (6) the right against excess bail, (7) the right against cruel and unusual punishment, (8) and due process protections. (9) These constitutions also provide structural checks from each branch. From the executive branch, police and prosecutors enforce the law with some autonomy but are subject to appointment, sometimes election by the public, and to the limits and priorities of the chief enforcer, the president or state governor. (10) The legislature enacts criminal statutes that clearly indicate when a person has broken the law, and is also subject to elections and legislation priorities, partially based on an assessment of the laws it has passed. (11) Finally, the judicial branch interprets the law fairly and ensures that executive officers respect individual constitutional rights and that legislatures enact clear statutes. (12) All of these constitutional checks, if functioning correctly, provide a structural balance in state and federal criminal justice.

Unfortunately, these constitutional checks are not functioning, most markedly in the criminal justice system. First, checks and balances are not functioning in constitutional criminal procedure because often the branches' interests are aligned. (13) For instance, legislatures especially in the last fifty years have not acted as a check to executive power but instead have colluded to enlarge the executive branch and pass harsher laws to punish criminal defendants. (14) In general, the branches work together exclusively to protect against crime, as opposed to balancing community safety while upholding the individual rights of the accused. Second, most of the individual constitutional rights to be enforced by the courts are trial rights, and trials have been replaced by a plea system that lacks a judicial enforcement valve for these rights. Third, public elections of prosecutors are pro forma and lack substantive checks on executive power, and legislative elections provide little accountability for criminal legislation passed. And as a result, structural checks are lacking in criminal justice.

The lack of constitutional checks in criminal justice is considerable. Without limits on the executive power to enforce the law and with an increased efficiency in plea bargaining, arrest rates, conviction rates, and detention rates (for both felonies and misdemeanors) have skyrocketed in federal and state systems. (15) This has been aided by the legislature's increasing the executive's ability to punish with harsher laws and by the lack of public knowledge about the effects of these laws on incarceration rates. These increases have led to mass incarceration, with the highest imprisonment rates America has ever experienced, and an "epidemic" of prosecutorial misconduct. (16) Indeed, the result of a lack of structural constitutional checks has been alarming.

In other areas, where constitutional checks are missing or failing, what I call "subconstitutional" checks have been formed by the courts or legislature, including 42 U.S.C. [section] 1983 and the Administrative Procedure Act (APA) as two key examples. Subconstitutional checks are stopgaps formed to effectuate the rights in the Constitution when the system is stalled in dysfunction, when one branch has subjugated the others, or when one branch has colluded with another. Subconstitutional checks are not derived explicitly from constitutional language but from an interest in protecting explicit constitutional structure and to give substance to specifically enumerated constitutional rights. For instance, in the civil arena, where the Constitution provides that the executive branch may appoint inferior officers, the APA has come into play to provide limits on the actions of these inferior officers and administrative bodies. (17) Similarly, the Fourteenth Amendment provides protection against discrimination, and legislation under [section] 1983 provides an avenue for these rights to be enforced. (18) Basically, subconstitutional checks fill constitutional gaps to actualize existing rights. To be clear, subconstitutional checks are not carte blanche criminal justice reform. Subconstitutional checks are not an effort simply to reign in prosecutorial power or reinvigorate judicial enforcement of rights. Subconstitutional checks are substitute checks to help fill constitutional gaps in all three branches.

While many scholars have lamented the broken state of the criminal justice system (19) and have prescribed single branch solutions to these problems, (20) scholarship to date has failed to appreciate the deep constitutional roots of criminal justice dysfunction that involve all three branches. It has also failed to recognize that the Constitution protects individuals through trial rights and we are operating in a system made up of pleas and implementing these rights in today's system requires constitutional adjustments. While my aim is broader than simple acknowledgment of the root of criminal justice dysfunction being a constitutional one, this alone is an important recognition.

My goal in this project is to begin a study of how subconstitutional checks can be created in criminal law. It is a project that will extend past this initial Article, and that will hopefully invite future research. Here, I start to lay the foundation. I endeavor to demonstrate that our criminal system is not fulfilling the constitutional goals of the structure set out by the Founders. I describe in some detail the results of this lack of constitutional checks. Then, I begin to briefly explore some potential subconstitutional checks that could provide more balance in the criminal justice system. By no means does this Article aim to provide a full framework that realizes all of the constitutional protections--individual and structural--provided in the Constitution. Instead, it aims to increase the promise of these rights by exploring how sub-constitutional checks can be employed in criminal law as they have been in other fields.

My discussion begins in Part I by laying a conceptual foundation. I describe the current constitutional checks provided by the three branches--executive, legislative, and judicial. After carefully enumerating the checks provided, I begin to explain how they are not fulfilling the goals the Constitution set out. Throughout Part I, I explore the notion of sub-constitutional checks and how they could fill the gaps left by a lack of structural checks in criminal law.

Part II grounds the discussion in Part I by describing the effects of a lack of structural checks and subconstitutional checks in criminal justice. To avoid abstraction, this Part describes one of the many constitutional dysfunctions caused by a lack of subconstitutional checks--what I call the "Prosecutor Problem." (21) In brief, the Prosecutor Problem is what modern scholars claim is responsible for the astronomical increase in incarceration in America in the last fifty years. (22) While scholars have recognized the Prosecutor Problem, none have satisfactorily explained why prosecutors have increased charging and sentencing so dramatically. The constitutional critique provided by this Article puts these charging decisions into perspective. Without functioning checks, prosecutors have used harsh legislation without accompanying limits to increase charging and individual sentences and have retained immunity from accountability or, in large part, from the responsibility of fulfilling individual constitutional rights with a lack of judicial intervention, all while contradicting the articulated executive agenda without any recourse. This Part uses the Prosecutor Problem as a case study, demonstrates the results of a lack of constitutional checks or subconstitutional checks, and demonstrates how dealing with the symptoms of the problem is inadequate.

In Part III, I explore how subconstitutional checks can solve the constitutional dysfunction caused by the inadequate existing constitutional checks in the modern criminal justice system. This Part envisions a potential for a fair criminal justice system despite the prevalence of plea bargaining, the lack of real executive elections, and the aligned interests between the branches. I provide here an initial blueprint that needs to be fully explored with future work.

My claim here is certainly not that these changes alone would rehabilitate the criminal justice system of all dysfunction. Nor is my claim that even by addressing all of the existing constitutional gaps, each criminal defendant in the system would experience a fair trial. I certainly do not contend that the subconstitutional checks provided here alone will rehabilitate the criminal justice system or provide for the lack of appreciation of individual constitutional rights or structural protections provided in the Constitution. I do, however, believe--against the weight of modern criminal justice scholarship--that a constitutional critique is necessary to provide a more complete solution rather than a piecemeal solution to criminal justice problems. Moreover, I contend that recognizing that there is a constitutional gap that has led to many individual--and seemingly unconnected--problems helps avoid the trap of blaming individual branches or looking for a simple reform to resolve criminal justice dysfunction.


    The U.S. Constitution was intended to be a slow-moving apparatus. The Montesquieuian structure of government divides power so that one branch...

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