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 phras1 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