Most talk about the law of criminal procedure treats that law as a self-contained universe. The picture looks something like this: The Supreme Court says that suspects and defendants have a right to be free from certain types of police or prosecutorial behavior. Police and prosecutors, for the most part, then do as they're told. When they don't, and when the misconduct is tied to criminal convictions, the courts reverse the convictions, thereby sending a message to misbehaving officials. Within the bounds of this picture there is room for a lot of debate about the wisdom or constitutional pedigree of particular doctrines, and the literature is filled with debate of that sort.(1) There is also room for theorizing about the optimal specificity of the rules the Supreme Court creates; the literature contains some of that, though less than it should.(2) Finally, there is room for arguing about remedies -- about whether reversing criminal convictions is an appropriate means of getting the police, prosecutors, and trial judges to do what the law says they ought to do. At least in the sphere of Fourth and Fifth Amendment law, a lively debate along those lines exists.(3) But for all their variety, these debates take for granted the same basic picture of the process, a process whose only variables are the rules themselves and the remedies for their violation.
The picture is, of course, wrong. Criminal procedure's rules and remedies are embedded in a larger system, a system that can adjust to those rules in ways other than obeying them. And the rules can in turn respond to the system in a variety of ways, not all of them pleasant. The more one focuses on that dynamic, the more problematic the law of criminal procedure seems.
The heart of the problem is the system's structure. The criminal justice system is dominated by a trio of forces: crime rates, the definition of crime (which of course partly determines crime rates), and funding decisions -- how much money to spend on police, prosecutors, defense attorneys, judges, and prisons. These forces determine the ratio of crimes to prosecutors and the ratio of prosecutions to public defenders, and those ratios in turn go far toward determining what the system does and how the system does it. But the law that defines what the criminal process looks like, the law that defines defendants' rights, is made by judges and Justices who have little information about crime rates and funding decisions, and whose incentives to take account of those factors may be perverse. High crime rates make it easy for prosecutors to substitute cases without strong procedural claims for cases with such claims. Underfunding of criminal defense counsel limits the number of procedural claims that can be pressed. Both phenomena make criminal procedure doctrines seem inexpensive to the appellate judges who define those doctrines. Unsurprisingly, given that regulating the criminal justice system has seemed cheap, the courts have done a lot of regulating -- more, one suspects, than they would have done in a world where defendants could afford to litigate more often and more aggressively, or where prosecutors could not so easily substitute some cases for others. Criminal procedure is thus distorted by forces its authors probably do not understand.
The distortion runs both ways. As courts have raised the cost of criminal investigation and prosecution, legislatures have sought out devices to reduce those costs. Severe limits on defense funding are the most obvious example, but not the only one. Expanded criminal liability makes it easier for the government to induce guilty pleas, as do high mandatory sentences that serve as useful threats against recalcitrant defendants. And guilty pleas avoid most of the potentially costly requirements that criminal procedure imposes. These strategies would no doubt be politically attractive anyway, but the law of criminal procedure makes them more so. Predictably, underfunding: overcriminalization, and oversentencing have increased as criminal procedure has expanded.
Nor are the law's perverse effects limited to courts and legislatures. Constitutional criminal procedure raises the cost of prosecuting wealthier defendants by giving those defendants more issues to litigate. The result, at the margin, is to steer prosecutors away from such defendants and toward poorer ones. By giving defendants other, cheaper claims to raise, constitutional criminal procedure also raises the cost to defense counsel of investigating and litigating factual claims, claims that bear directly on their clients' innocence or guilt. The result is to steer defense counsel, again at the margin, away from those sorts of claims and toward constitutional issues. More Fourth, Fifth, and Sixth Amendment claims probably mean fewer self-defense claims and mens rea arguments. This turns the standard conservative criticism of the law of criminal procedure on its head. Ever since the 1960s, the right has argued that criminal procedure frees too many of the guilty. The better criticism may be that it helps to imprison too many of the innocent.
It also does little about the concern that, more than anything else, prompted its creation. The post-1960 constitutionalization of criminal procedure arose, in large part, out of the sense that the system was treating black suspects and defendants much worse than white ones. Warren-era constitutional criminal procedure began as a kind of antidiscrimination law.(4) But the criminal justice system is characterized by extraordinary discretion -- over the definition of crimes (legislatures can criminalize as much as they wish), over enforcement (police and prosecutors can arrest and charge whom they wish), and over funding (legislatures can allocate resources as they wish). In a system so dominated by discretionary decisions, discrimination is easy, and constitutional law has surprisingly little to say about it.
To some degree, these problems are the product of a particular set of contingent circumstances. Vary the circumstances, and the problems would look quite different. For example, we may someday return to the very low crime-to-prosecutor ratios of the early 1960s, either because crime takes a nosedive or because criminal justice budgets go through the roof (or both). If that happens, prosecutorial discretion will seem less important, for prosecutors will be able to pursue all strong cases and a good number of weak ones. Guilty plea rates will fall as the proportion of contestable cases rises. More trials will mean that the cost of constitutional regulation in this area will become more visible to judges, which might lead the Supreme Court to alter the regulation in important ways. This is just one set of speculations about one possible scenario; other scenarios, pushing prosecutors and courts in very different directions, could easily be spun out. The lesson seems clear: Generalizing is dangerous, for the problems that afflict the system today are the consequence of today's facts and today's law, and both facts and law are certain to change.
Yet some cautious generalizing is still possible. In a legislatively funded system with state-paid prosecutors and defense attorneys, judge-made procedural rights are bound to have some perverse effects, pushing prosecutors and defense attorneys and legislators and even the judges themselves in uncomfortable directions. The effects are impossible to measure, and they will be larger or smaller depending on background circumstances. But they remain real, and inevitable.
Interestingly, judicial intervention in other aspects of the criminal justice system -- the definition of crimes and the funding of criminal defense -- does not seem likely to have these sorts of perverse effects. Constitutionalizing procedure, in a world where substantive law and funding are the province of legislatures, may tend to encourage bad substantive law and underfunding. But constitutionalizing some aspects of substantive criminal law and defense funding would not tend to encourage bad procedure, or bad anything else. Yet substance and funding are the areas where courts have most deferred to legislatures, where passivity rather than activism has been the judicial norm. It may be that the broad structure of constitutional regulation of criminal justice has it backward, that courts have been not too activist, but activist in the wrong places.
The balance of this Article is organized as follows. Part I discusses the twin sources of the problem: the allocation of power between the criminal justice system's two bosses -- courts and legislatures -- and the nature of the law of constitutional criminal procedure. Part II discusses how criminal litigation is rationed in a system with public prosecutors and state-paid defense counsel, and how that rationing process changes the effect of the constitutional rules that govern criminal procedure. Part III suggests that courts and legislatures are locked into a perverse dynamic, that the existing system pushes appellate courts to make too much (and the wrong kind of) law, which in turn pushes legislatures to fund criminal defense too stingily and to define substantive criminal law too broadly. Part IV briefly raises the possibility of a different sort of constitutional regulation, one focused more on criminal substance and the funding of defense counsel and less on the details of criminal procedure. These discussions are sketchy and speculative; the goal is to begin an argument, not to end one. They are also one-sided: My aim is to suggest that constitutional criminal procedure has substantial unappreciated costs; I do not discuss its (better appreciated) benefits, which may also be substantial. The argument thus does not lead to any confident bottom line. It does, however, undermine what seems to be the confident bottom line of most judges and most academics in the field -- that the current approach to...