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