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A Reply to Louis Michael Seidman\u27s Respons

Privacy\u27s Problem and the Law of Criminal Procedure

Part I of this article addresses the connection between privacy-based limits on police authority and substantive limits on government power as a general matter. Part II briefly addresses the effects of that connection on Fourth and Fifth Amendment law, both past and present. Part ID suggests that privacy protection has a deeper problem: it tends to obscure more serious harms that attend police misconduct, harms that flow not from information disclosure but from the police use of force. The upshot is that criminal procedure would be better off with less attention to privacy, at least as privacy is defined in the doctrine today. Were the law of criminal procedure to focus more on force and coercion and less on information gathering (a change that is already beginning to happen), it would square better with other constitutional law and better protect the interests most people value most highly

Plea Bargaining as Contract

Most criminal prosecutions are settled without a trial. The parties to these settlements trade various risks and entitlements: the defendant relinquishes the right to go to trial (along with any chance of acquittal), while the prosecutor gives up the entitlement to seek the highest sentence or pursue the most serious charges possible. The resulting bargains differ predictably from what would have happened had the same cases been taken to trial. Defendants who bargain for a plea serve lower sentences than those who do not. On the other hand, everyone who pleads guilty is, by definition, convicted, while a substantial minority of those who go to trial are acquitted. There is something puzzling about the polarity of contemporary reactions to this practice. Most legal scholars oppose plea bargaining, finding it both inefficient and unjust. Nevertheless, most participants in the plea bargaining process, including (perhaps especially) the courts, seem remarkably untroubled by it. Not only is the practice widespread, but participants generally approve of it. Why is plea bargaining at once so widely condemned and so widely tolerated? One place to look for an answer is in the law and literature of plea bargaining as contract. Plea bargains are, as the name suggests, bargains; it seems natural to argue that they should be regulated and evaluated accordingly. But while that argument is common, there is little agreement on where it leads. Two of the harshest and most influential critics of plea bargaining, Albert Alschuler and Stephen Schulhofer, maintain that contract theory supports prohibiting any bargained-for allocation of criminal punishment. The courts, on the other hand, have proceeded to construct a body of contract-based law to regulate the plea bargaining process, taking for granted the efficiency and decency of the process being regulated. The many academic arguments for abolishing (or at least severely restricting) plea bargaining have thus been largely ignored. It is tempting to explain this reaction as a product of the chasm between an overly fastidious academic world and the unpleasant realities of modem criminal processes. But the intuition that plea bargaining is fundamentally flawed is too strong and too widespread to be so casually dismissed

Al Capone\u27s Revenge: An Essay on the Political Economy of Pretextual Prosecution

Most analyses of pretextual prosecutions – cases in which prosecutors target defendants based on suspicion of one crime but prosecute them for another, lesser crime – focus on the defendant\u27s interest in fair treatment. Far too little attention is given to the strong social interest in non-pretextual prosecutions. Charging criminals with their true crimes makes criminal law enforcement more transparent, and hence more politically accountable. It probably also facilitates deterrence. Meanwhile, prosecutorial strategies of the sort used to get Al Capone can create serious credibility problems. The Justice Department has struggled with those problems as it has used Capone-style strategies against suspected terrorists. That is no surprise: Pretextual charging is primarily a phenomenon of the federal criminal justice system, where law enforcers are less politically accountable than in state justice systems. The solution is to make the federal justice system more accountable. A variety of forces are pushing in that direction; federal courts could help speed the process along with appropriate jurisdiction and statutory interpretation doctrines. If those things happen, pretext cases will become less common, and the justice system will be healthier