Criminal (In)Justice and Democracy in America

This essay responds to Nicola Lacey’s review of my recent book The Machinery of Criminal Justice (Oxford Univ. Press 2012). Lacey entirely overlooks the book’s fundamental distinction between making criminal justice policy wholesale and adjudicating deserved punishment at the retail level, in individual cases, which is quite consistent with keeping but tempering rules. She also undervalues America’s deep commitments to federalism, localism, and democratic self-government and overlooks the related problem of agency costs in criminal justice. Her top-down approach colors her desire to pursue equality judicially, to the exclusion of the political branches. Finally, Lacey denigrates the legitimate roles of emotion and retribution in criminal justice. A consideration of the recent outcry over a gang-rape-murder in India highlights the shortcomings of her clinical, therapeutic, overly professionalized approach to criminal justice

Pleas\u27 Progress

George Fisher\u27s new book, Plea Bargaining\u27s Triumph, is really three books in one. The first part is a careful, detailed explanation of how and why plea bargaining exploded in Middlesex County, Massachusetts in the nineteenth century. This part is the fruit of an impressive amount of original research in Massachusetts court records and newspaper archives. The second part of the book looks more broadly at other academic histories of plea bargaining in England, California, and New York. It explains how the forces that produced plea bargaining in Middlesex County likewise contributed to plea bargaining\u27s rise elsewhere. The final part applies the lessons of history to critique current criminal procedure. In particular, Fisher criticizes the U.S. Sentencing Guidelines for tilting the balance of power toward prosecutors. Academics have already written a number of histories of plea bargaining in Massachusetts and elsewhere, but this one is different. Fisher, a former Middlesex County prosecutor and now a professor at Stanford Law School, brings his prosecutorial perspective to bear in explaining the rise of plea bargaining. I will review Fisher\u27s book from this same perspective, as both of us are plea-bargaining scholars and former prosecutors rather than professional historians

Forgiveness in Criminal Procedure

Though forgiveness and mercy matter greatly in social life, they play fairly small roles in criminal procedure. Criminal procedure is dominated by the state, whose interests in deterring, incapacitating, and inflicting retribution leave little room for mercy. An alternative system, however, would focus more on the needs of human participants. Victim-offender mediation, sentencing discounts, and other mechanisms could encourage offenders to express remorse, victims to forgive, and communities to reintegrate and employ offenders. All of these actors could then better heal, reconcile, and get on with their lives. Forgiveness and mercy are not panaceas: not all offenders and victims would choose to take part, there are dangers of fakery and arbitrariness, and some forgiven offenders would reoffend. On the whole, however, this forgiving model offers a humane alternative to state-dominated criminal procedure

Rewarding Prosecutors for Performance

Prosecutorial discretion is a problem that most scholars attack from the outside. Most scholars favor external institutional solutions, such as ex ante legislation or ex post judicial and bar review of individual cases of misconduct. At best these approaches can catch the very worst misconduct. They lack inside information and sustained oversight and cannot generate and enforce fine-grained rules to guide prosecutorial decisionmaking. The more promising alternative is to work within prosecutors\u27 offices, to create incentives for good performance. This symposium essay explores a neglected toolbox that head prosecutors can use to influence line prosecutors: compensation and other rewards. Rewards can both attract and retain the best candidates and also encourage those who are already prosecutors to perform better. Though we take lock-step seniority-based salaries for granted, recent management literature has emphasized the need to pay for performance, to attract and retain stars and encourage quality performance and hard work. First, Part I discusses possible metrics of prosecutorial success, to decide what traits and behavior to reward. Historically, prosecutors have focused on a couple of statistics such as conviction rates, but these numbers are manipulable and incomplete. Prosecutors\u27 multiple constituencies and goals require subtler measures. A better solution is to collect and aggregate feedback from a variety of sources, including peer prosecutors, supervisors, judges, defense counsel, victims, defendants, and the public, as eBay does. This information, appropriately weighted and discounted, could better encourage prosecutors to serve all their constituencies. The next step is to devise incentives to encourage success on these metrics. Part II surveys pay and reward systems designed to attract and retain good prosecutors and to encourage them to succeed. A first step is to offer variable salaries, raises, promotions, and awards tied to the metrics of success. More radical solutions could range from hourly rates to performance-based bonuses to contingency fees. While some of the more radical solutions, such as contingency fees, would be unwise or unworkable, others are worth trying

The Story of \u3ci\u3eBrady v. Maryland\u3c/i\u3e: From Adversarial Gamesmanship Toward the Search for Innocence?

This book chapter, forthcoming in Criminal Procedure Stories (Carol Steiker ed. forthcoming 2005), explains the story behind Brady v. Maryland and its broader significance in the field of criminal procedure. Brady is unusual among the great landmark criminal procedure decisions of the Warren Court. Brady requires prosecutors to give criminal defendants evidence that tends to negate their guilt or reduce their punishment. In other words, Brady mandates limited discovery instead of trial by ambush. Brady\u27s test turns not on whether the prosecutor misled a jury or acted in good faith, but on whether the evidence is favorable and material to guilt or punishment. Thus, Brady marked a potentially revolutionary shift from traditionally unfettered adversarial combat toward a more inquisitorial, innocence-focused system. Yet, unlike Mapp v. Ohio and Miranda v. Arizona, Brady has sparked little public controversy or commentary. This may be because innocence is an appealing touchstone for criminal procedure, one with enormous potential to transform the adversarial criminal trial into a collaborative search for the truth. Brady, however, has meant much less in practice than it could have. Few potential Brady claims come to light, and fewer defendants walk free, because our system remains an adversarial contest rather than a neutral inquiry into innocence. First, Brady requires prosecutors to look out for defendants\u27 interests, and adversarial-minded prosecutors are poorly suited to do that job. Second, Brady is hard to implement and enforce. Favorable evidence is often spread across many agencies\u27 files; defendants cannot learn of evidence hidden in these files; and judges are loath to reverse convictions long after trial. Empirical evidence shows that few Brady claims succeed and that most Brady material is ambiguous enough that prosecutors can easily overlook it. Third, Brady requires relatively little discovery, though statutes and rules have broadened discovery beyond the constitutional minimum. Much broader discovery would alleviate many of the adversary system\u27s problems, at the cost of more witness intimidation, fabricated alibis, and revelation of undercover and confidential informants. Fourth, Bradyapplies only at the trial stage, but hardly any defendants go to trial any more. About 95% plead guilty, and Brady may not even apply to the plea bargaining process, when defendants need this information most. Finally, though Brady ignores the prosecutor\u27s good faith (mens rea), its test continues to require some prosecutorial misdeed (actus reus). It does not focus exclusively on the defendant\u27s guilt or innocence of the crime or punishment. Brady\u27s ringing rhetoric of innocence, then, is in some ways a hollow promise. Far from transforming the adversarial system into a quest for truth, it has merely tinkered at its margins

Justice Scalia’s Originalism and Formalism: The Rule of Criminal Law as a Law of Rules

Far too many reporters and pundits collapse law into politics, assuming that the left–right divide between Democratic and Republican appointees neatly explains politically liberal versus politically conservative outcomes at the Supreme Court. The late Justice Antonin Scalia defied such caricatures. His consistent judicial philosophy made him the leading exponent of originalism, textualism, and formalism in American law, and over the course of his three decades on the Court, he changed the terms of judicial debate. Now, as a result, supporters and critics alike start with the plain meaning of the statutory or constitutional text rather than loose appeals to legislative history or policy. Justice Scalia’s approach was perhaps most striking and counterintuitive in criminal law and procedure. He was known to confess that as a policy matter, he favored vigorous law enforcement and punishment, but as a jurist, he championed a principled understanding of the rule of law. His approach helped to preserve individual liberty, make the law clearer and more consistent and transparent, give citizens better notice, promote democratic accountability, and check prosecutors’ and judges’ power. Justice Scalia’s animating concerns will remain enduring touchstones of our law: the importance of protecting the roles of legislatures, juries, and the people; ensuring fair notice; and preserving liberty by limiting judicial discretion and prosecutorial power. His criminal jurisprudence is thus a microcosm of a principled judicial approach to law more generally, and he will be greatly missed