Harvard law School Harvard law school public law Research Paper No 126 The political constitution of criminal Justice William J Stuntz This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection at http:/ssrn.com/abstract783565
Harvard Law School Harvard Law School Public Law Research Paper No. 126 This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection at: http://ssrn.com/abstract=783565 The Political Constitution of Criminal Justice William J. Stuntz
THE POLITICAL CONSTITUTION OF CRIMINAL JUSTICE William ]. stuntz INTRODUCTION I. CRIME. POLITICS AND THE CONSTITUTION A. The Allocation of islative politics and l. Policing and pr ocedure 2. Defining Crimes and Sent 3. Spending C. Executive branch politics and the constitution IL REPRESENTATION REINFORCEMENT: A BLUEPRINT A. The Content of Constitutional regulation B. The Method of Constitutional Regulation IIL. A REFORM PROGRAM A. Policing the polie B. Defining Crimes and Adjudicating Guilt C. Punishment E. Imagining Constitutional Reform V. CoNClUSION Professor, Harvard Law School. I owe a long list of colleagues and friends thanks for very helpful comments and conversations: Rachel Barkow, Dick Fallon, Heather Gerken, Jack Goldsmith, Joe Hoffmann, Pam Karlan, Orin Kerr, Mike Klarman, Daryl Levinson, Debra Livingston, Dana Mulhauser, Wes Oliver, John Rappaport, Dan Richman, Mike Seidman, Carol Steiker, Matthew Stephenson, and Adrian Vermeule. I also benefitted enormously from workshops at Columbia and Stanford Law Schools, the Hoffinger Colloquium at NYU Law School, and the Criminal Justice Roundtable at Harvard. Heather McNaught, Dana Mulhauser, Warren Postman, and John Rappaport provided excellent research assistance. Errors that remain are my responsibility
*Professor, Harvard Law School. I owe a long list of colleagues and friends thanks for very helpful comments and conversations: Rachel Barkow, Dick Fallon, Heather Gerken, Jack Goldsmith, Joe Hoffmann, Pam Karlan, Orin Kerr, Mike Klarman, Daryl Levinson, Debra Livingston, Dana Mulhauser, Wes Oliver, John Rappaport, Dan Richman, Mike Seidman, Carol Steiker, Matthew Stephenson, and Adrian Vermeule. I also benefitted enormously from workshops at Columbia and Stanford Law Schools, the Hoffinger Colloquium at NYU Law School, and the Criminal Justice Roundtable at Harvard. Heather McNaught, Dana Mulhauser, Warren Postman, and John Rappaport provided excellent research assistance. Errors that remain are my responsibility. 1 THE POLITICAL CONSTITUTION OF CRIMINAL JUSTICE William J. Stuntz* INTRODUCTION I. CRIME, POLITICS, AND THE CONSTITUTION A. The Allocation of Power B. Legislative Politics and the Constitution 1. Policing and Procedure 2. Defining Crimes and Sentences 3. Spending C. Executive Branch Politics and the Constitution II. REPRESENTATION REINFORCEMENT: A BLUEPRINT A. The Content of Constitutional Regulation B. The Method of Constitutional Regulation III. A REFORM PROGRAM A. Policing the Police B. Defining Crimes and Adjudicating Guilt C. Punishment D. Federalism E. Imagining Constitutional Reform IV. CONCLUSION
INTRODUCTION Large literatures discuss the constitutional law of criminal justice and the politics of crime. To date, no substantial literature addresses the relationship between the two. At first blush, that relationship seems straightforward: politicians ignore the interests of criminal suspects and defendants, so the Supreme Court steps in to protect those interests. On this view, politics is to constitutional law as a disease is to the medicine that cures it. America's politics of crime is indeed diseased. But the metaphor may get causation backward. The constitutional proceduralism of the 1960s and after helped to create the harsh justice of the 1970s and after. Overcriminalization, excessive punishment, racially skewed drug enforcement, overfunding of prisons and underfunding of everything else-these familiar political problems are as much the consequences of constitutional regulation as the reasons for it. The medicine is reinforcing the disease Political incentives are the mechanism. Constitutional law creates a series of olitical taxes and subsidies making some kinds of legislation and law enforcement more expensive and others cheaper. Since the 1960s, the Supreme Court has regulated policing and trial procedure aggressively, while leaving substantive criminal law and (until the past few years noncapital sentencing to the politicians Consequently, legislators find it easy to expand criminal codes and raise sentences but harder to regulate policing and the trial process. These incentives apply to spending as well. Prison budgets receive a constitutional subsidy. Budgets for criminal adjudication and(especially) local police are subject to a constitutional tax Jim Whitman uses this phrase as the title of his brilliant book on the history of criminal punishment in America and Europe. JAMES Q. WHITMAN, HARSH JUSTICE CRIMINAL PUNISHMENT AND THE WIDENING DIVIDE BETWEEN AMERICA AND EUROPE (2003) See United States v. Booker, 125 S Ct. 738(2005); Blakely v. Washington, 124 S Ct 2531(2004): Apprendi v. New Jersey, 530 U.S. 466(2000) Cf. Blakely, 124 S Ct. at 2546(O'Connor, J, dissenting)(While not a constitutional prohibition of] guidelines schemes, the majoritys decision today exacts substantial constitutional tax ). Until Blakely, Supreme Court Justices used the phras
1 Jim Whitman uses this phrase as the title of his brilliant book on the history of criminal punishment in America and Europe. JAMES Q. WHITMAN, HARSH JUSTICE: CRIMINAL PUNISHMENT AND THE WIDENING DIVIDE BETWEEN AMERICA AND EUROPE (2003). 2 See United States v. Booker, 125 S.Ct. 738 (2005); Blakely v. Washington, 124 S.Ct. 2531 (2004); Apprendi v. New Jersey, 530 U.S. 466 (2000). 3Cf. Blakely, 124 S.Ct. at 2546 (O’Connor, J., dissenting) (“While not a constitutional prohibition [of] guidelines schemes, the majority’s decision today exacts a substantial constitutional tax”). Until Blakely, Supreme Court Justices used the phrase 2 INTRODUCTION Large literatures discuss the constitutional law of criminal justice and the politics of crime. To date, no substantial literature addresses the relationship between the two. At first blush, that relationship seems straightforward: politicians ignore the interests of criminal suspects and defendants, so the Supreme Court steps in to protect those interests. On this view, politics is to constitutional law as a disease is to the medicine that cures it. America’s politics of crime is indeed diseased. But the metaphor may get causation backward. The constitutional proceduralism of the 1960s and after helped to create the harsh justice1 of the 1970s and after. Overcriminalization, excessive punishment, racially skewed drug enforcement, overfunding of prisons and underfunding of everything else — these familiar political problems are as much the consequences of constitutional regulation as the reasons for it. The medicine is reinforcing the disease. Political incentives are the mechanism. Constitutional law creates a series of political taxes and subsidies, making some kinds of legislation and law enforcement more expensive and others cheaper. Since the 1960s, the Supreme Court has regulated policing and trial procedure aggressively, while leaving substantive criminal law and (until the past few years)2 noncapital sentencing to the politicians. Consequently, legislators find it easy to expand criminal codes and raise sentences but harder to regulate policing and the trial process. These incentives apply to spending as well. Prison budgets receive a constitutional subsidy. Budgets for criminal adjudication and (especially) local police are subject to a constitutional tax.3
To see how perverse those taxes and subsidies are, it helps to visualize the criminal justice system as a giant funnel. Entering the broad end of the funnel are the tens of millions of men and women whom the police search or seize each year, most of them guilty of nothing worse than a traffic offense. Slide down the funnel, and that broad pool of suspects narrows considerably, producing a smaller pool of criminal defendants: about two million per year charged with felonies, and several million more charged with misdemeanors. Most of these are guilty, but not all, and a sizeable fraction of even the felons are let off with essentially no punishment. 6 Slide down a bit farther and the pool narrows more, to the 700,000 who enter prison each year.' Sadly, there are innocents here too- but presumably their number is small, and no one knows who they are. Notice the pattern: as one proceeds from policing to adjudication to punishment, the systems targets grow fewer, less constitutional tax " only in tax cases No one knows how many searches and seizures the police conduct each year, but the number must be huge. According to the Statistical Abstract, 22.7 million people were the targets of motor vehicle stops in 1999. U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES-2002, at 195 No 309 [ hereinafter 2002STATISTICAL ABSTRACT This is more than double the number of felony and misdemeanor charges filed per year, combined. See infra note 5 SThe figures on felony and misdemeanor charges are imprecise. The Justice Department lists arrests"by offense charged. " BUREAU OF JUSTICE STATISTICS, U.S. DEPT OF JUSTICE. SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 2003. at 353 tbl. 4.6 hereinafter 2003 SoURCEBOOK ] The relevant table covers the majority ofthe United States but not the entire country, and some of the charged offenses may be categorized differently in different jurisdictions. Assuming the proportions hold nationally, there were at least 2.3 million felony charges in 2002. See id at 344 tbl. 4.1, 353 tbl. 4.6. On the same assumption, the number of misdemeanor charges was at least 9 million. Id In the 75 largest counties in 2002, 27%of those charged with felonies were not convicted, nearly always because charges were dropped. See 2003 SOURCEBOOK, supra note 5, at 457tbl 5.57. Of those who were convicted, 31% were not incarcerated; nearly all of those defendants were sentenced to probation. Id at 458 tbl. 5.59. Paige M. Harrison Allen J. Beck, Bureau of Justice Statistics, U.S. Dep't of Justice, Prison and Jail Inmates at Midyear 2004, at 6 tbl. 7(2005)(showing 686, 437 prison admissions in 2003)
“constitutional tax” only in tax cases. 4No one knows how many searches and seizures the police conduct each year, but the number must be huge. According to the Statistical Abstract, 22.7 million people were the targets of motor vehicle stops in 1999. U.S.CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES —2002, at 195 No. 309 [hereinafter 2002STATISTICALABSTRACT]. This is more than double the number of felony and misdemeanor charges filed per year, combined. See infra note 5. 5The figures on felony and misdemeanor charges are imprecise. The Justice Department lists arrests “by offense charged.” BUREAU OF JUSTICE STATISTICS,U.S.DEP’T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS — 2003, at 353 tbl. 4.6 [hereinafter 2003SOURCEBOOK]. The relevant table covers the majority of the United States but not the entire country, and some of the charged offenses may be categorized differently in different jurisdictions. Assuming the proportions hold nationally, there were at least 2.3 million felony charges in 2002. See id. at 344 tbl. 4.1, 353 tbl. 4.6. On the same assumption, the number of misdemeanor charges was at least 9 million. Id. 6 In the 75 largest counties in 2002, 27% of those charged with felonies were not convicted, nearly always because charges were dropped. See 2003SOURCEBOOK,supra note 5, at 457 tbl. 5.57. Of those who were convicted, 31% were not incarcerated; nearly all of those defendants were sentenced to probation. Id. at 458 tbl. 5.59. 7Paige M. Harrison & Allen J. Beck, Bureau of Justice Statistics, U.S. Dep’t of Justice, Prison and Jail Inmates at Midyear 2004, at 6 tbl. 7 (2005) (showing 686,437 prison admissions in 2003). 3 To see how perverse those taxes and subsidies are, it helps to visualize the criminal justice system as a giant funnel. Entering the broad end of the funnel are the tens of millions of men and women whom the police search or seize each year, most of them guilty of nothing worse than a traffic offense.4 Slide down the funnel, and that broad pool of suspects narrows considerably, producing a smaller pool of criminal defendants: about two million per year charged with felonies, and several million more charged with misdemeanors. 5 Most of these are guilty, but not all, and a sizeable fraction of even the felons are let off with essentially no punishment.6 Slide down a bit farther and the pool narrows more, to the 700,000 who enter prison each year.7 Sadly, there are innocents here too — but presumably their number is small, and no one knows who they are. Notice the pattern: as one proceeds from policing to adjudication to punishment, the system’s targets grow fewer, less
politically attractive, and less likely to vote. Constitutional law inverts the funnel. Suspects receive the most constitutional protection, criminal defendants get less, and prisoners get least of all Politically speaking, that structure is upside-down. Tens of millions of mostly nnocent criminal suspects can win political battles, at least sometimes. Two million mostly guilty felony defendants will find those battles harder to win. Several hundred thousand already-convicted prisoners may find victory impossible. To put the point in concrete terms, abused suspects like Rodney King have a lot more political appeal than prisoners like Willie Horton'-and the Kings outnumber the Hortons by a considerable margin. Yet constitutional law chiefly protects the suspects, not the prisoners. Politicians are freest to regulate where regulation is most likely to be one-sided and punitive a similar pattern characterizes criminal justice spending. Over the past generation-the time when constitutional law has played a large role in American criminal justice -state legislators and members of Congress have dramatically shifted the distribution of law enforcement dollars. Police spending has risen a little faster than other government spending. Spending on the adjudication process has For a good discussion of the rule barring voting by convicted felons and challenges to it, see Pamela S. Karlan, Convictions and Doubts: Representation, Retribution, and the Debate over Felon Disenfranchisement, 56 STAN. L REV. 1147(2004). For an argument that few felons would vote even if the rule were changed, see Thomas J. Miles, Felon Disenfranchisement and voter Turnout, 33 J LEGAL STUD. 85(2004) King was the Los Angeles motorist who, after a high-speed police chase, was beaten savagely by four officers; the beating was videotaped by a nearby civilian. The officers who beat King were tried and acquitted in state court, after which Los Angeles saw the second-worst urban riots in American history. Horton was the Massachusetts inmate who was freed on a prison furlough program during Michael Dukakis's governorship While on release, Horton committed assault, rape, and auto theft. In the 1988 presidential campaign, Vice President George Bush's campaign manager, Lee Atwater, used Horton case to attack Governor Michael dukakis for being soft on crime From 1972 to 2001, overall police spending rose 148%in constant dollars. This figure is taken from 2003 SOURCEBOOK, supra note 5, at 5 tbl. 1. 4, and CRIMINAL JUSTICE RESEARCH CENTER. U.S. DEPT OF JUSTICE. SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 1974, at 33 tbl. 1. 2 [hereinafter 1974 SOURCEBOOK]. The inflation adjustment is taken from U.S. CENSUS BUREAU STATISTICAL ABSTRACT OF THE UNITED STATES: 2004-2005
8For a good discussion of the rule barring voting by convicted felons and challenges to it, see Pamela S. Karlan, Convictions and Doubts: Representation, Retribution, and the Debate over Felon Disenfranchisement, 56 STAN. L. REV. 1147 (2004). For an argument that few felons would vote even if the rule were changed, see Thomas J. Miles, Felon Disenfranchisement and Voter Turnout, 33 J. LEGAL STUD. 85 (2004). 9King was the Los Angeles motorist who, after a high-speed police chase, was beaten savagely by four officers; the beating was videotaped by a nearby civilian. The officers who beat King were tried and acquitted in state court, after which Los Angeles saw the second-worst urban riots in American history. Horton was the Massachusetts inmate who was freed on a prison furlough program during Michael Dukakis’s governorship. While on release, Horton committed assault, rape, and auto theft. In the 1988 presidential campaign, Vice President George Bush’s campaign manager, Lee Atwater, used Horton’s case to attack Governor Michael Dukakis for being soft on crime. 10From 1972 to 2001, overall police spending rose 148% in constant dollars. This figure is taken from 2003 SOURCEBOOK, supra note 5, at 5 tbl. 1.4, and CRIMINAL JUSTICE RESEARCH CENTER,U.S.DEP’T OF JUSTICE,SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS — 1974, at 33 tbl.1.2 [hereinafter 1974 SOURCEBOOK]. The inflation adjustment is taken from U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES: 2004-2005, 4 politically attractive, and less likely to vote.8 Constitutional law inverts the funnel. Suspects receive the most constitutional protection, criminal defendants get less, and prisoners get least of all. Politically speaking, that structure is upside-down. Tens of millions of mostly innocent criminal suspects can win political battles, at least sometimes. Two million mostly guilty felony defendants will find those battles harder to win. Several hundred thousand already-convicted prisoners may find victory impossible. To put the point in concrete terms, abused suspects like Rodney King have a lot more political appeal than prisoners like Willie Horton9 — and the Kings outnumber the Hortons by a considerable margin. Yet constitutional law chiefly protects the suspects, not the prisoners. Politicians are freest to regulate where regulation is most likely to be one-sided and punitive. A similar pattern characterizes criminal justice spending. Over the past generation — the time when constitutional law has played a large role in American criminal justice — state legislators and members of Congress have dramatically shifted the distribution of law enforcement dollars. Police spending has risen a little faster than other government spending.10 Spending on the adjudication process has
risen a great deal more. Spending on prisons has skyrocketed. 2 Legislators spend where they can also govern. Constitutional law gives them little room to govern policing, more control over adjudication, and nearly unlimited authority to dole out punishment. Budget dollars flow accordingly The perverse effects do not end with legislation. The constitutional law of policing widens the gap between the cost of investigating middle- and upper-class suspects and the cost of investigating poor ones. The law of trial procedure does the same thing for criminal prosecution. That gap, combined with law enforcement agencies'budget pressures, pushes local police and prosecutors to focus too much attention on the crimes of the poor and too little on the crimes of the middle class Given the demographics of poverty in America, that makes for a more racially discriminatory system-especially with respect to drug crime, where law enforcers discretion matters most. There is no way to run a test, but it seems likely that because of the constitutional rules that govern policing and trial procedure, law is broader, sentencing rules are harsher, key criminal justice institutions are more underfunded, and the population of arrestees and defendants is more racially skewed than would otherwise be the case. These are odd results indeed for law that supposed to be " representation reinforcing, a corrective to politicians' tendency to ignore the interests of suspects and defendants. at 461 No 697 hereinafter 2004-2005 STATISTICAL ABSTRACT]. All subsequent spending comparisons are adjusted for inflation, using this table By comparison, total federal government spending rose 90% in constant dollars during the same period-less than police spending, but not a lot less. Compare id at 308 tbl. 461(showing 2001 federal spending of $1.8639 trillion) with U.S. CENSUS BUREAU STATISTICAL ABSTRACT OF THE UNITED STATES-1974, at 221 No 359(showing 1972 federal spending of $23 1.9 billion) From 1972 to 2001, spending on criminal adjudication rose 298% in constant ollars. See 2003 SOURCEBOOK, supra note 5, at 5 tbl. 1.4; 1974 SOURCEBOOK, supra note 10,at33tbl.1.2. From 1972 to 2001, spending on corrections rose 456% in constant dollars. See 2003 SOURCEBOOK, supra note 5, at 5 tbl. 1.4: 1974 SOURCEBOOK, supra note 10, at 33 tbl 1.2 The phrase belongs, of course, to the late John Hart Ely, for whom criminal procedure was for him a prime example of the phenomenon. See, e.g., JOHN HART ELY
at 461 No. 697 [hereinafter 2004-2005 STATISTICAL ABSTRACT]. All subsequent spending comparisons are adjusted for inflation, using this table. By comparison, total federal government spending rose 90% in constant dollars during the same period — less than police spending, but not a lot less. Compare id. at 308 tbl. 461 (showing 2001 federal spending of $1.8639 trillion) with U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES — 1974, at 221 No. 359 (showing 1972 federal spending of $231.9 billion). 11From 1972 to 2001, spending on criminal adjudication rose 298% in constant dollars. See 2003 SOURCEBOOK, supra note 5, at 5 tbl. 1.4; 1974 SOURCEBOOK, supra note 10, at 33 tbl. 1.2. 12From 1972 to 2001, spending on corrections rose 456% in constant dollars. See 2003 SOURCEBOOK, supra note 5, at 5 tbl. 1.4; 1974 SOURCEBOOK, supra note 10, at 33 tbl. 1.2. 13The phrase belongs, of course, to the late John Hart Ely, for whom criminal procedure was for him a prime example of the phenomenon. See, e.g., JOHN HART ELY, 5 risen a great deal more.11 Spending on prisons has skyrocketed.12 Legislators spend where they can also govern. Constitutional law gives them little room to govern policing, more control over adjudication, and nearly unlimited authority to dole out punishment. Budget dollars flow accordingly. The perverse effects do not end with legislation. The constitutional law of policing widens the gap between the cost of investigating middle- and upper-class suspects and the cost of investigating poor ones. The law of trial procedure does the same thing for criminal prosecution. That gap, combined with law enforcement agencies’ budget pressures, pushes local police and prosecutors to focus too much attention on the crimes of the poor and too little on the crimes of the middle class. Given the demographics of poverty in America, that makes for a more racially discriminatory system — especially with respect to drug crime, where law enforcers’ discretion matters most. There is no way to run a test, but it seems likely that because of the constitutional rules that govern policing and trial procedure, criminal law is broader, sentencing rules are harsher, key criminal justice institutions are more underfunded, and the population of arrestees and defendants is more racially skewed than would otherwise be the case. These are odd results indeed for law that is supposed to be “representation reinforcing,” a corrective to politicians’ tendency to ignore the interests of suspects and defendants.13
What would it take to make constitutional law genuinely representation reinforcing? The answer is: radical change. Constitutional law that reinforced healthy politics would be different in nearly every respect from current law. Its animating goals would be to ensure legality and fight discrimination, not to protect privacy and extend jury power. It would focus more on macro incentives-the kind that drive legislation and the allocation of money and manpower-and less on the micro kind that dominate the law today. It would be more flexible and open to innovation, hence more political market-friendly. to use michael Dorfs and charles Sabel's helpful terminology, such law would be both more democratic and more experimentalist. 4 Though reformed constitutional law would be much less intrusive than the current regime, it would also better protect criminal suspects and defendants. who get little benefit from the legal doctrines that allegedly safeguard their rights My goal in this article is two-fold: to explain why radical change is needed and to sketch what it might look like. Part I addresses the first of those two tasks exploring the relationship between constitutional law and the politics of crime. Part II lays out the key characteristics of a more democratic experimentalist approach(hat tip to Dorf and Sabel)in this area. Part III applies these ideas, sketching a reform program for four areas: policing, adjudication and crime definition (legally two different topics, though they should be seen as one), punishment, and federalism Part Ill concludes with a brief discussion of how these reforms might happen-and why they probably wont All proposals have their downsides; different readers will prefer different reform packages. Yet the basic argument does not depend on the particulars of any package. Current constitutional law makes the politics of criminal justice worse more punitive, more racist, and less protective of individual liberty. That state of affairs is not inevitable. a different approach to constitutional law in this area would DEMOCRACY AND DISTRUST 97(1980)(calling the Fourth Amendment"a harbinger of the Equal Protection Clause"). The basic idea dates(at least)to Chief Justice Stone's opinion in United States v Carolene Products Co., 304 U.S. 144, 153 n 4(1938)(PRejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. See Michael C. Dorf Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 COLUM. L REV 267(1998)
DEMOCRACY AND DISTRUST 97 (1980) (calling the Fourth Amendment “a harbinger of the Equal Protection Clause”). The basic idea dates (at least) to Chief Justice Stone’s opinion in United States v. Carolene Products Co., 304 U.S. 144, 153 n. 4 (1938) (“[P]rejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.”). 14See Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 COLUM. L. REV 267 (1998). 6 What would it take to make constitutional law genuinely representation reinforcing? The answer is: radical change. Constitutional law that reinforced healthy politics would be different in nearly every respect from current law. Its animating goals would be to ensure legality and fight discrimination, not to protect privacy and extend jury power. It would focus more on macro incentives — the kind that drive legislation and the allocation of money and manpower — and less on the micro kind that dominate the law today. It would be more flexible and open to innovation, hencemore political market-friendly. To use Michael Dorf’s and Charles Sabel’s helpful terminology, such law would be both more democratic and more experimentalist.14 Though reformed constitutional law would be much less intrusive than the current regime, it would also better protect criminal suspects and defendants, who get little benefit from the legal doctrines that allegedly safeguard their rights. My goal in this article is two-fold: to explain why radical change is needed, and to sketch what it might look like. Part I addresses the first of those two tasks, exploring the relationship between constitutional law and the politics of crime. Part II lays out the key characteristics of a more democratic experimentalist approach (hat tip to Dorf and Sabel) in this area. Part III applies these ideas, sketching a reform program for four areas: policing, adjudication and crime definition (legally two different topics, though they should be seen as one), punishment, and federalism. Part III concludes with a brief discussion of how these reforms might happen — and why they probably won’t. All proposals have their downsides; different readers will prefer different reform packages. Yet the basic argument does not depend on the particulars of any package. Current constitutional law makes the politics of criminal justice worse: more punitive, more racist, and less protective of individual liberty. That state of affairs is not inevitable. A different approach to constitutional law in this area would
mean,over time, healthier politics-and a healthier criminal justice system L. CRIME. POLITICS AND THE CONSTITUTION Scholars generally agree that American politics is too punitive, discriminatory, and unconcerned with the interests of the criminal justice systems argets.Politicians, voters, and the media get the bulk of the blame6-more than they deserve. The law gets less than it deserves. Like the rest of us, politicians These propositions are central themes of the many books and articles on the American politics of crime. For a sampling, see KATHARINE BECKETT, MAKING CRIME PAY 1997); WILLIAM J. CHAMBLISS, POWER, POLITICS, AND CRIME(1999); DAVID GARLAND THE CULTURE OF CONTROL: CRIME AND SOCIAL ORDER IN CONTEMPORARY SOCIETY 2001): STUART A SCHEINGOLD, THE POLITICS OF LAW AND ORDER: STREET CRIME AND PUBLIC POLICY (1984): WHITMAN, supra note 1: LORD WINDLESHAM, POLITICS, PUNISHMENT, AND POPULISM(1998): FRANKLIN E. ZIMRING ET AL., PUNISHMENT AND DEMOCRACY: THREE STRIKES AND YOU'RE OUT IN CALIFORNIA (2001); Sara Sun Beale, What's Law Got to Do With It? The Political, Social, Psychological, and Other Non-Legal Factors Influencing the Development of (Federal) Criminal Law, I BUFF. CRIM. L REv. 23 (1997); Donald A Dripps, Criminal Procedure, Footnote Four, and the Theory of Public Choice, Or, Why Don t Legislatures Give a Damn About the rights of the Accused?, 44 SYRACUSE L REv. 1079(1993) Most of the works cited in the preceding note take this position. One common version of the claim is that voters are subject to cognitive error when assessing the risk of crime, thanks to the sensationalist character of the media's treatment of the issue. See, e. g Rachele Barkow, Administering Crime, 52 UCLAL REV 715, 747-54(2005) [hereinafter Barkow, Administering Crime], and sources cited therein. As John Dilulio points out, the 1960s saw both a huge increase in crime and a substantial drop in the incarceration rate- an unprecedented combination. Seen in that light, the punitive turn in American politics since 1970 seems a good deal less surprising See John J. Dilulio, Jr, Keeping Crime on the Run, BLUEPRINT MAGAZINE, Fall 2000, availableathttp:www.ppionline.org/ndol/print.cfm?contentid=2153.If,duringthe1970 and after, the voters decided to reject the advice of criminal justice experts in favor of punitive populism, as Frank Zimring, Gordon Hawkins, and Sam Kamin have argued, see ZIMRING ET AL., supra note 15, perhaps that is because in the 1960s, the experts failed the voters. C. GARLAND, supra note 15, at 65-68(discussing radical criminology of the late 1960s that urged"expressive freedom and the liberation of individuals from arbitrary uthority”)
15These propositions are central themes of the many books and articles on the American politics of crime. For a sampling, seeKATHARINE BECKETT,MAKING CRIME PAY (1997); WILLIAM J. CHAMBLISS, POWER, POLITICS, AND CRIME (1999); DAVID GARLAND, THE CULTURE OF CONTROL: CRIME AND SOCIAL ORDER IN CONTEMPORARY SOCIETY (2001); STUART A. SCHEINGOLD, THE POLITICS OF LAW AND ORDER: STREET CRIME AND PUBLIC POLICY (1984); WHITMAN, supra note 1; LORD WINDLESHAM, POLITICS, PUNISHMENT, AND POPULISM (1998); FRANKLIN E. ZIMRING ET AL., PUNISHMENT AND DEMOCRACY: THREE STRIKES AND YOU’RE OUT IN CALIFORNIA (2001); Sara Sun Beale, What’s Law Got to Do With It? The Political, Social, Psychological, and Other Non-Legal Factors Influencing the Development of (Federal) Criminal Law, 1 BUFF.CRIM. L.REV. 23 (1997); Donald A. Dripps, Criminal Procedure, Footnote Four, and the Theory of Public Choice; Or, Why Don’t Legislatures Give a Damn About the Rights of the Accused?, 44 SYRACUSE L. REV. 1079 (1993). 16Most of the works cited in the preceding note take this position. One common version of the claim is that voters are subject to cognitive error when assessing the risk of crime, thanks to the sensationalist character of the media’s treatment of the issue. See, e.g., Rachel E. Barkow, Administering Crime, 52 UCLAL.REV. 715, 747-54 (2005) [hereinafter Barkow, Administering Crime], and sources cited therein. 17As John DiIulio points out, the 1960s saw both a huge increase in crime and a substantial drop in the incarceration rate — an unprecedented combination. Seen in that light, the punitive turn in American politics since 1970 seems a good deal less surprising. See John J. DiIulio, Jr., Keeping Crime on the Run, BLUEPRINT MAGAZINE, Fall 2000, available at http://www.ppionline.org/ndol/print.cfm?contentid=2153. If, during the 1970s and after, the voters decided to reject the advice of criminal justice experts in favor of punitive populism, as Frank Zimring, Gordon Hawkins, and Sam Kamin have argued, see ZIMRING ET AL., supra note 15, perhaps that is because in the 1960s, the experts failed the voters. Cf. GARLAND, supra note 15, at 65-68 (discussing radical criminology of the late 1960s that urged “expressive freedom and the liberation of individuals from arbitrary authority”). 7 mean, over time, healthier politics — and a healthier criminal justice system. I. CRIME, POLITICS, AND THE CONSTITUTION Scholars generally agree that American politics is too punitive, discriminatory, and unconcerned with the interests of the criminal justice system’s targets.15 Politicians, voters, and the media get the bulk of the blame16 — more than they deserve.17 The law gets less than it deserves. Like the rest of us, politicians
respond to incentives, and constitutional law creates bad ones: political taxes and subsidies that push politicians in precisely the directions scholars criticize I begin with a brief discussion of the lines of authority over policing, criminal dication, and punishment. The discussion then turns to constitutional law's perverse effects on the politics of legislation, and on the politics of policing and A. The Allocation of Power The horizontal division of labor in Americas criminal justice system is simple. Legislators write the laws that define crimes and sentences. They also write budgets for the agencies that enforce those laws: police forces, prosecutors'offices public defenders'offices, courts, and prisons. Police officers decide when and whom to search and arrest. Prosecutors decide whom to charge and how severely. Judges nterpret the laws legislators write, and exercise whatever sentencingdiscretion those laws give them. The vertical allocation of power is more complex. Begin with the odd truth that local governments do most criminal law enforcement. Local police departments and county sheriffs ' offices employ roughly 700,000 police officers, compared to only 56,000 state troopers and 11,000 FBI agents. 2 Local cops and state police together make some 13 million arrests; 2 FBI agents make only 11,000. 2 The data on prosecution is similar. Roughly 27,000 local prosecutors prosecute 1. 1 million I See 2003 SoURCEBOOK, supra note 5, at 42 tbl. 1. 27. The figure in the text includes 605, 631 full-time, sworn officers in local police forces and sheriffs offices, plus 37, 623 part-time officers in those same agencies and 43, 413special jurisdiction"officers policing transit systems, public housing complexes, college campuses, and the like 9ld 20d.at69tbl.1.72. 2I See id. at 344 tbl. 4.1.389 tbl 434. I subtracted the federal arrests as listed in table 4, 34 from the total arrests recorded in table 4.1 22Id at 389 tbl. 4.34 2Carol J DeFrances, Bureauof Justice Statistics, U.S. Dep'tof Justice, Pro sectors State Courts, 2001, at 2(2002)[hereinafter DeFrances, Prosecutors]
18See 2003 SOURCEBOOK, supra note 5, at 42 tbl. 1.27. The figure in the text includes 605,631 full-time, sworn officers in local police forces and sheriffs’ offices, plus 37,623 part-time officers in those same agencies and 43,413 “special jurisdiction” officers policing transit systems, public housing complexes, college campuses, and the like. 19Id. 20Id. at 69 tbl. 1.72. 21See id. at 344 tbl. 4.1, 389 tbl. 4.34. I subtracted the federal arrests as listed in table 4.34 from the total arrests recorded in table 4.1. 22Id. at 389 tbl. 4.34. 23Carol J. DeFrances, Bureau of Justice Statistics, U.S. Dep’t ofJustice, Prosecutors in State Courts, 2001, at 2 (2002) [hereinafter DeFrances, Prosecutors]. 8 respond to incentives, and constitutional law creates bad ones: political taxes and subsidies that push politicians in precisely the directions scholars criticize. I begin with a brief discussion of the lines of authority over policing, criminal adjudication, and punishment. The discussion then turns to constitutional law’s perverse effects on the politics of legislation, and on the politics of policing and prosecution. A. The Allocation of Power The horizontal division of labor in America’s criminal justice system is simple. Legislators write the laws that define crimes and sentences. They also write budgets for the agencies that enforce those laws: police forces, prosecutors’ offices, public defenders’ offices, courts, and prisons. Police officers decide when and whom to search and arrest. Prosecutors decide whom to charge and how severely. Judges interpret the laws legislators write, and exercise whatever sentencing discretion those laws give them. The vertical allocation of power is more complex. Begin with the odd truth that local governments do most criminal law enforcement. Local police departments and county sheriffs’ offices employ roughly 700,000 police officers,18 compared to only 56,000 state troopers19 and 11,000 FBI agents. 20 Local cops and state police together make some 13 million arrests; 21 FBI agents make only 11,000.22 The data on prosecution is similar. Roughly 27,000 local prosecutors23 prosecute 1.1 million
felony cases each year. By contrast, the 5300 lawyers who work in United States Attorneys'offices"bring only 66,000 felony prosecutions per year. Each year sees roughly 320,000 state court felony drug convictions, compared with 25,000 in federal court. Local prosecutors convict 173,000 violent felons each year;their federal counterparts convict a mere 2600, plus another 4900 for weapons offenses. 30 The bottom line is clear: Local law enforcement is the main course. Federal law enforcement is, by comparison, small potatoes pr rosecutons are governed by state criminal codes and state sentencing rules. State legislators are responsible for those codes and rules, though they sometimes delegate a large measure of their sentencing power to sentencing commissions or judges. Congress defines federal crimes and sentences with the help of the Federal Sentencing Commission. Over time, members of Congress have tended to exercise more power and the Commission less. The Supreme Courts decision in United States v. Booker reshuffled the cards, shifting Matthew R. Durose Patrick A Langan, Bureau of Justice Statistics, U.S. Dep't f Justice, Felony Sentences in State Courts, 2002, at 1(2003)(estimating 1, 051,000 state court felony convictions per year). Recall that the number of felony charges filed--well over 2 million-is much higher. See supra note 5. In some of those cases prosecutors drop charges, and others are bargained down to misdemeanors See 2003 SoURCEBOOK, supra note 5, at 74 tbl. 1.79 2ld.at418tbl.5.17. 27d.at449tbl.544 28d.at419tbl.5.18. 29ld.at449tbl.5.44 Id at 419 tbl. 5.18. A large fraction of the gun violators probably deserve to be classified as violent felons, but it is impossible to say how large a fraction For the best discussion of the phenomenon to date, see FrankO. Bowman Ill, The Failure of the Federal Sentencing Guidelines: A Structural Analysis, 105 COLUM. L. REV. 1315,132849(2005
24Matthew R. Durose & Patrick A. Langan, Bureau of Justice Statistics, U.S. Dep’t of Justice, Felony Sentences in State Courts, 2002, at 1 (2003) (estimating 1,051,000 state court felony convictions per year). Recall that the number of felony charges filed — well over 2 million — is much higher. See supra note 5. In some of those cases prosecutors drop charges, and others are bargained down to misdemeanors. 25See 2003 SOURCEBOOK, supra note 5, at 74 tbl. 1.79. 26Id. at 418 tbl. 5.17. 27Id. at 449 tbl. 5.44. 28Id. at 419 tbl. 5.18. 29Id. at 449 tbl. 5.44. 30Id. at 419 tbl. 5.18. A large fraction of the gun violators probably deserve to be classified as violent felons, but it is impossible to say how large a fraction. 31For the best discussion of the phenomenon to date, see Frank O. Bowman III, The Failure of the Federal Sentencing Guidelines: A Structural Analysis, 105 COLUM. L. REV. 1315, 1328-49 (2005). 9 felony cases each year.24 By contrast, the 5300 lawyers who work in United States Attorneys’ offices25 bring only 66,000 felony prosecutions per year.26 Each year sees roughly 320,000 state court felony drug convictions,27 compared with 25,000 in federal court.28 Local prosecutors convict 173,000 violent felons each year;29 their federal counterparts convict a mere 2600, plus another 4900 for weapons offenses.30 The bottom line is clear: Local law enforcement is the main course. Federal law enforcement is, by comparison, small potatoes. Nearly all local arrests and prosecutions are governed by state criminal codes and state sentencing rules. State legislators are responsible for those codes and rules, though they sometimes delegate a large measure of their sentencing power to sentencing commissions or judges. Congress defines federal crimes and sentences, with the help of the Federal Sentencing Commission. Over time, members of Congress have tended to exercise more power and the Commission less.31 The Supreme Court’s decision in United States v. Booker reshuffled the cards, shifting
