Show Summary Details

Page of

PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice).

date: 03 August 2020

Fundamental Values of Criminal Procedure

Abstract and Keywords

This chapter examines the fundamental values that ought to inform criminal procedure. More specifically, it considers what we ideally should want from the rules and procedures that exist in legal jurisdictions throughout the world. Three fundamental values are discussed—human dignity, truth, and fairness—and the ways in which they can be upheld or subverted by criminal justice practices. Illustrations are drawn primarily from the United States, but reference is also made to criminal procedure in other countries, including those in the civil law tradition. The article concludes by analyzing two further candidates for inclusion on the list of fundamental values of criminal procedure: the “effectiveness” of criminal procedure and the value of “expertise” that highlights the distinction between the common law and civil law traditions.

Keywords: fundamental values, criminal procedure, human dignity, truth, fairness, criminal justice, effectiveness of criminal procedure, expertise, common law, civil law

I. Introduction

The aim of this chapter is to consider what fundamental values ought to inform criminal procedure. Put differently, the chapter steps back from the rules and procedures that exist in legal jurisdictions throughout the world and examines what we ideally should want from them. To some extent, the answer to this question might seem obvious—we very much want them to produce accurate outcomes, in the form of true convictions and the avoidance of false ones. Yet one suspects that what we want is more complex than accurate sorting, which, as anyone who has examined it already knows, is complex enough in its own right. The more complex thing we want likely will contain internal tensions, as it will be challenging to wrangle all of the fundamental values that ought to guide criminal procedure into a single, well-managed corral. Nothing I say in what follows should be taken as the last word on these matters. In fact, in closing the chapter, I consider whether there are other fundamental values of criminal procedure that my account sleights. I concede that there might be. My aim is to start a conversation, or continue one, that seems more often implicit than explicit in scholarship on criminal procedure.

The three fundamental values identified in this chapter are human dignity, truth, and fairness. The value of truth is parsed into two subsidiary values, integrity and rigor. It is easier to come up with a list of such values than to determine which of them are basic and which are derivative, to what extent they conflict or overlap, and how they are to be organized into a coherent scheme. My aim is the modest one of offering characterizations of them and illustrations of the ways in which they can be upheld or subverted by criminal justice practices. The illustrations I employ are drawn primarily from the United States, in the main because I know its system of criminal procedure best. (p. 26) However, reference is also made to criminal procedure in other countries, including those in the civil law tradition.

It is natural to believe that criminal procedure begins with the investigation of crimes, or alleged crimes, except that efforts by the police to elicit crimes also fall under its purview.1 A broad and diverse variety of legal requirements and ethical best practices guide the actions of criminal justice officials as they conduct investigations, arrest suspects, formally charge them with crimes, urge the courts to require postings of bail or institute pretrial detention, see to the adjudication of charges, assign sentences in cases of conviction, and participate in any post-conviction appeals. Criminal procedure ends when all post-conviction appeals are exhausted, though in some jurisdictions, new evidence might emerge after it appears that all appeals have been spent, evidence that the courts, or other official bodies, are tasked with evaluating.2 Hence, just as the beginning of criminal procedure might be difficult to pinpoint, so is its cessation.

Importantly, the fundamental values identified in this chapter are abstract enough that they are unlikely to imply that there is a single best way to structure criminal procedure. There will instead be numerous ways to do so consistent with the values, as the diverse practices of criminal procedure in countries throughout the world suggest. Nonetheless, the values have enough determinacy to provide the basis for a critique of many existing practices.

II. Human Dignity

The first fundamental value is in some ways the easiest to identify and interpret, which is not to say that it poses no difficulties in interpretation.3 It is the value of human dignity, according to which criminal justice officials of all kinds must conduct themselves in ways that are consistent with and supportive of the dignity of the persons against whom, as well as on behalf of whom, they act. The concept of “human dignity” is fraught. There is ongoing debate about what it means—in particular, whether it refers to some distinctive nonnatural property of humans or is simply another way of referring to certain natural (p. 27) properties of humans, perhaps while exhorting us to respect those properties.4 Though it is popular in some circles to dismiss Immanuel Kant’s account of human dignity as being too focused on rationality, the core of that account, with its emphasis on the capacity of most adult human beings to reflect on their lives and attempt to shape them in accordance with that reflection, has rarely been improved upon.5 Each of us is the subject of a life that typically matters, and matters significantly, to us. To respect and value our dignity is to act in ways that ensure that we can engage in self-shaping, subject to doing so in ways that allow others to do so.6 It is relatively straightforward, from this account of reflective self-direction as the core of human dignity, to derive certain basic moral rights to which all persons are entitled. Such rights function to protect the prerequisites of reflective agency, in the forms of life, freedom from physical and psychological harm, liberty, privacy, and basic welfare.7

The dignity of individuals, with the basic moral rights it entails, normatively constrains the actions of all individuals, including those with responsibilities for investigating crimes, charging persons with them, and adjudicating the charges. One way to think about the way in which human dignity constrains the actions of criminal justice officials is in terms of its grounding presumptions against interfering with or infringing the basic moral rights of citizens. These presumptions, which can be rebutted, will vary in stringency, depending on the extent and ways in which official action intrudes upon individuals’ basic rights.8 For instance, stopping citizens and questioning them, which the police presumably must be able to do on occasion, constitute minimal and brief infringements on the rights of individuals. To justify them, and thus overcome the presumption that individuals ought to be able to exercise and enjoy their rights unfettered by official interference, the police should have to have (and be prepared to articulate and defend, in a court of law) something like “reasonable suspicion” of criminal activity on the part of those they stop. As measures more intrusive into the lives of the individuals they investigate are employed by the authorities, such as searches of suspects’ homes, the burdens of justification on the authorities ought to rise. At the limit, before legal sanctions are imposed on individuals, state authorities should have to overcome the most stringent burden of proving their guilt beyond a reasonable doubt in a court of law. Short of that (p. 28) limit, if pretrial detention is used against persons charged with crimes, the presumption against interference with their basic rights should impose substantial burdens on criminal justice officials to justify such intrusive and enduring right-curtailment. Moreover, respect for the dignity of persons should require the authorities to provide material and symbolic conditions of pretrial detention that affirm their status as rational, self-directing beings whose lives matter and, just as important, have not yet been convicted of any crimes.9 Thus, squalid and, degrading pretrial detention, marked by the absence of such things as proper sanitation, privacy, work, and visitation, should be seen as contrary to the dignity of suspects.

The dignity of suspects or of formally accused persons grounds numerous other constraints on their treatment by criminal justice officials. It rules out coercive interrogation techniques, or ones that rely on various forms of extended deprivation—of food, drink, sleep, or social interaction.10 Abuses such as these will be less likely to occur if accused persons are provided access to defense attorneys. If the accused cannot afford them, then the state should see to it that competent and motivated attorneys are provided for them.11 Defense attorneys also support their clients’ dignity by ensuring that their sides of the story are presented to the authorities or the courts. Further, by insisting that police, prosecutor, and the courts abide by rules of full and fair due process, defense attorneys convey to their clients and to the world that their clients’ reputations and liberty matter and cannot be taken from them without proper procedures being adhered to.

Non-trial charge adjudication can likewise comport poorly with the dignity of accused persons in some instances. Plea concessions, in the form of proffers by prosecutors (or judges) of reduced sentences or charges in exchange for guilty pleas or confessions, might be defended on the ground that they provide inducements that are not coercive. So long as accused persons will, if they refuse them and are convicted after trials, receive no worse than sentences proportional to the seriousness of their crimes, such concessions can be cast as providing accused persons with undeserved leniency.12 Yet this defense of sentence and charge concessions is harder to make if sentences are systematically disproportionate to begin with and plea concessions serve only to bring them closer to proportionality.13 Further, threats by prosecutors of added charges or trial penalties, aimed at accused persons who balk at admitting their guilt, seem undeniably coercive. If carried out, they can produce sentences that bear little relation to the seriousness of the (p. 29) crimes committed by the accused; such vindictive add-ons exist to intimidate or punish exercise of the right to trial, in defiance of the dignity of the accused.14

The dignity of the accused is further undermined if state officials decline to reveal the nature and quality of the evidence against them. Yet there are jurisdictions in which accused persons enter guilty pleas in the absence of such knowledge. In the United States, for instance, the accused can seek discovery of the evidence against them, and by law prosecutors are supposed to comply with requests for its disclosure, although often only at trial rather than during plea negotiations.15 However, the reality is that prosecutors often penalize accused persons whose attorneys make such requests by offering them poorer quality plea deals.16 Outside the United States, disclosure of the evidence against accused persons is more often the norm, ensuring, as it does, that the accused (with the help of their attorneys) can make informed choices about what is surely an important decision in their lives.17

Finally, it is natural to see the vaunted right against self-incrimination as grounded in the value of human dignity. Much of the scholarly literature on the right against self-incrimination focuses on criminal trials and the question whether accused persons can be forced to testify on pain of being found in contempt of court if they refuse to do so.18 There is also the question whether such refusals permissibly can be cited by prosecutors or judges as evidence of the guilt of the accused. Important as these issues are, state efforts to induce suspects and formally accused persons to incriminate themselves start well before trials occur, if they occur at all. Coercive or harsh police station interrogation techniques aim at getting suspects to admit their guilt.19 Pretrial detention in squalid local jails can be seen as an indirect way of inducing the accused to accede to guilty pleas. Without question, menacing accused persons with substantial sentencing differentials should they insist on going to trial, especially when those differentials are born of threatened trial penalties or strategic over-charging, is a strategy aimed at compelling accused persons to admit their guilt. Arguably, all of these actions by government officials comport poorly with respecting the dignity of suspects and accused persons.

(p. 30) III. Truth

The claim that the dignity of persons establishes successive normative hurdles that criminal justice officials must surmount before they can justifiably inflict legal punishment on individuals points us in the direction of the second fundamental value of criminal procedure. The value of truth is more often trumpeted in civil law jurisdictions than common law ones.20 Indeed, there is some tendency in common law jurisdictions, and especially in the United States, to cast criminal procedure as being primarily concerned with dispute resolution rather than with getting at the truth of the charges that officials have levied against individuals.21 It might also seem that getting at the truth, as a fundamental value of criminal procedure, sets too lofty and abstract a goal—too lofty because we sometimes will not know whether we have achieved it, especially in complex criminal cases; too abstract because it might seem incapable of providing us with specific, practical guidance about how to structure investigatory and adjudicative processes.

However, if we take seriously the notion of honoring the dignity of persons, and especially of those charged with crimes, this would seem to require of us assiduous efforts to discern whether or not they have engaged in the criminal misconduct of which we suspect and have accused them.22 Legal punishment condemns and imposes hard treatment on persons for public wrongs.23 Acting in the public’s name and on its behalf, legal officials thereby curtail some of the most basic moral rights of persons proven to be offenders. Legal punishment also damages individuals in ways that make it difficult for them to return to society and exercise their basic rights once their sentences have been served. If this is not a morally freighted enterprise, it is difficult to understand what would be. Moreover, the victims of crimes, when there are victims, likewise have significant stakes in having their interests vindicated by the criminal justice system.24 Yet this will not occur if officials are incompetent, lazy, or cavalier about the outcomes of their work, or if they are more concerned to strike quick deals with the accused rather than achieve accurate outcomes in criminal cases. The truth about what happened to victims, just as the truth about what the accused have or have not done matters to them and all of us, or should.

Nevertheless, I have some sympathy for the notion that we should try to say, with greater specificity, how we should structure criminal procedure so that it will get at the (p. 31) truth. I believe that it is useful to identify two subsidiary values in the service of truth. The first is integrity, according to which the various state agents tasked with arresting, investigating, and charging individuals with crimes, and seeing to the adjudication of charges, must respect and consistently abide by procedures that are reliable and evidence-driven. The second subsidiary value is rigor, according to which investigatory and adjudicatory processes must have checks and balances in place to ensure that the official decisions that advance individuals further into and through the criminal justice system are tested repeatedly, culminating, if need be, in trials at which the state must establish the guilt of the accused beyond a reasonable doubt. Let me elaborate these two values in turn.

1. Integrity

It is apparent that arrests, investigations, and prosecutions are subject to a wide variety of human errors and biases, ones that are often compounded by pressures on police, prosecutors, and the courts to efficiently process a high volume of cases.25 Police and criminal investigators, in particular, must be trained and encouraged to avoid methods that are well known to produce errors. These include the use of coercive interrogation techniques, the manipulation of lineups for purposes of identifying possible perpetrators of criminal acts, and the threatening, co-optation, or coaching of witnesses. Worse than all of these, of course, is the planting of inculpatory evidence or the concealment of exculpatory evidence. Prosecutors also must be committed to an evidence-driven process, one that requires them to reveal exculpatory evidence to judges or the defense, and to avoid pressuring witnesses to alter or shade their testimony.26 Prosecutors also should avoid the use of evidence that science has not validated or long history has shown to be dubious, or at least they should be judicious in drawing conclusions from such evidence or urging others to do so. Police and prosecutors also should be trained to recognize and resist their own biases—whether of racial, gender, or ethnic kinds—as well as to recognize and resist cognitive biases that push them toward hasty conclusions about those under their purview.27

It is tempting to believe that criminal procedure will be evidence-driven so long as criminal trials are appropriately structured. There must be a public airing of the charges and evidence against the accused, and the accused, aided by competent counsel, must have genuine opportunities to contest the state’s case or put forward a defense. An impartial judge or jury that employs the reasonable doubt standard must then render a verdict. However, given the ubiquity of guilty pleas or confessions by the accused in (p. 32) many legal systems, many cases never go to trial or have only perfunctory ones.28 If such abbreviated adjudicative procedures are to be evidence-driven, prosecutors and judges must be denied the ability to pressure pleas or confessions with promises of substantial charge or sentencing concessions—or worse, threats of trial penalties if the accused insists on going to trial only to be subsequently convicted.29 Simply put, the larger the potential sentencing differential between trial and non-trial adjudication, the less we will have assurance that it is the evidence, rather than the differential, that plays the crucial role in producing the outcomes of non-trial adjudication. The sentencing differential must be kept modest for this signally important reason.

Even criminal trials might not be as strongly or reliably evidence-driven as they should be. For instance, the evidence that juries in U.S. trials see is often “synthesized,” meaning that it has been doctored or manipulated in a variety of ways by police, prosecutors and defense attorneys.30 Eyewitnesses to crimes, or prosecution witnesses of other kinds, are often coached to appear more confident or consistent than they really are or were in their initial statements to the authorities. The process by which the police elicited “confessions” from suspects is rarely videotaped, and yet we have good reason to believe that many confessions are gained in ways that stain their credibility.31 Defense attorneys also coach witnesses, of course. It might be hoped that coaching by both sides will more or less “even things out,” but it is difficult to see how pervasive evidence manipulation will reliably enable jurors to arrive at sound judgments concerning the validity of the charges against the accused.32 Importantly, jurors might not be aware of the extent to which the evidence with which they are presented has been doctored by advocates on both sides. In continental legal systems, by contrast, the judges who preside over trials receive full case dossiers in advance. This presumably enables them to ask probing questions of witnesses or the accused who testify. Judges in civil law countries might also be aware of the ways in which witnesses can be coached, and be prepared to ask the police hard questions about the conditions under which confessions were obtained.33 Moreover, in some continental systems, even full confessions do not absolve the courts from inquiring into the other evidence against accused persons.34

(p. 33) Jurors in common law systems, and particularly in the United States, are probably not helped with the difficult task of evaluating the evidence presented to them by the excesses of the adversary process.35 The hope is that the adversary process will provide jurors with diverse and well-argued viewpoints on the evidence, ones that jurors will then have to sort through to arrive at conclusions about the state’s success or failure at having satisfied the reasonable doubt standard. Yet it might be overly optimistic to believe that adversary efforts to (sometimes dishonestly or misleadingly) embellish the evidence in support of one side, while (sometimes dishonestly or misleadingly) discrediting the evidence in support of the other side will put citizen jurors in a position to figure out anything with a high degree of skill or confidence. The contrast between the adversary process in this regard and trials in civil law countries in which judges, armed with complete case dossiers in advance of the trial and concerned, ultimately, to get at the truth regarding the charges against accused persons, is stark. It is not that judges in civil law countries cannot or do not make mistakes or do not have axes to grind, so to speak. But defense attorneys and prosecutors in such systems, while they can suggest lines of inquiry to judges, are not permitted to try to intimidate or badger truthful witnesses, or trip up the accused who take the stand to testify, with little regard for the truthfulness of their testimony.36

To this point, I have emphasized the ways in which integrity requires us to devise investigatory and adjudicative processes that are driven by evidence that we have good reason to believe is accurate and reliable. Yet the value of integrity includes a vital attitudinal component.37 Officials must not only employ reliable methods while gathering and evaluating evidence; they must be committed to doing so on a continuing basis. Thus, they must assiduously avoid corrupting or short-circuiting the process, even if this means tolerating its “inefficiency.” To do so is, some would claim, part of what it means to abide by the “presumption of innocence” for individuals accused of crimes. The presumption is designed to regulate the attitudes and conduct of officials (and citizens more generally) during the course of the investigative and adjudicative process. Individuals arrested on suspicion of criminal conduct, charged with crimes, or awaiting disposition of their cases are to be presumed innocent so that officials, or the public, are not tempted to treat them as guilty and punish or ostracize them prematurely.38

Alternatively, it has been suggested that non-presumptions of material and probative guilt make more sense in the investigatory and adjudication phases.39 After all, the presumption of innocence seems difficult to square with the many impositions on the (p. 34) freedom of accused persons that are routinely tolerated. It also seems inconsistent with the real doubts about their innocence that may emerge well before any charges against them have been fully processed. What unites the standard position and this alternative is the critical importance of recognizing both the fallibility of criminal justice actors and the unpredictability of the process of investigating crimes and adjudicating charges. It is the premature rush to judgment about the material or probative guilt of the accused that, too often, produces mistakes that harm innocent, or perhaps partly innocent individuals.40 The integrity of the process requires officials to be patient, to resist inclinations to “make the evidence fit” their initial (and sometimes premature) conclusions about the actual or provable guilt of the persons whom they have accused of crimes. It might be possible to capture everything that we want of these officials with an elaborate set of rules or procedures. But my sense is that even the best rules and procedures for gathering and compiling evidence will be undermined if officials are grudging in following them or cynical about doing so.

2. Rigor

It is widely accepted that the state must meet a high standard of proof in criminal cases before convictions of persons charged with crimes are warranted.41 The dominant way of conceptualizing and justifying the commitment to the reasonable doubt standard is in terms of its enabling us to achieve an optimal distribution of the errors that criminal trials, and investigatory and adjudicative processes more generally, invariably produce.42 This “error distribution” approach holds that we make trials stern tests of the government’s evidence against the accused in order to minimize false convictions as we attempt to produce true ones. According to the venerable Blackstone ratio, we are to tolerate the acquittals of ten guilty persons to the false conviction of a single innocent one.43 Though this degree of preference for acquitting the guilty to convicting the innocent is questioned by some who favor the error distribution account, the consequentialist logic of the approach is widely accepted by legal scholars. Still, one worrisome implication of such an approach is that it makes the exacting proof structure of criminal trials contingent on its role in producing whatever is believed to be the optimal distribution of errors. This means that, should assumptions about that optimal distribution change, so too might the grounds for insisting on the reasonable doubt standard or other safeguards for accused persons.44

(p. 35) On the alternative, rights-based approach sketched earlier in my discussion of the value of human dignity, the case for rigorously testing the government’s evidence is grounded in an account of what taking the basic rights of persons seriously requires of state officials before they impose legal punishment on them.45 Such an account holds that as the state increasingly intrudes upon the rights of persons during the investigatory and adjudicatory processes, it should have to surmount successively stronger evidentiary barriers designed to shield those rights from official depredation. At the limit, before it can curtail basic rights in profound and often enduring ways through the infliction of legal punishment, the state should have to provide powerful proof of the criminal misconduct of persons. On this account, the need for rigorous proof of the state’s charges is not vulnerable to shifting views about what standard of proof will produce the best consequences. Instead, it is anchored in an understanding of what respect for the rights of persons morally requires of us.

Setting this debate about the ultimate grounds for the reasonable doubt standard to one side, it is important to note the other ways in which the value of rigor should inform criminal procedure. Again, many criminal cases are resolved without trials. Even on the assumption that some forms of non-trial adjudication can be (if sufficiently constrained) appropriate, rigor seems vital at both earlier and subsequent points in the criminal justice process. Accordingly, we should set up criminal investigatory and adjudicatory procedures so that the state power to arrest, investigate, charge, adjudicate charges, and sentence the convicted is subject to checks and balances of various kinds. Put differently, we should embrace “deliberate inefficiency” in the design of investigatory and adjudicatory processes. No single official or small group of them, no matter how wise or benevolent, should have the authority to arrest, investigate, adjudicate, and sentence offenders. The dangers to such consolidated power, in the forms of error, laziness, corruption, and malevolence, are well known. Yet it is not enough to spread such responsibilities across numerous officials; we must also encourage if not require them to check and, if necessary, challenge or overturn the work of other officials when they have grounds for believing that those officials have acted in error or bad faith.

At what junctures should such checking and rechecking occur? First, prosecutors should monitor and query the work of police, including scrutinizing the arrests they have made and the evidence they have gathered. Unfortunately, it is well known that prosecutors rely on the police to do much of the work of investigating crimes and are understandably reluctant to challenge the evidence and claims that the police bring forward. Comity sometimes takes precedence over integrity and rigor.46 Also, there is considerable variation in the discretion that the police have to arrest persons and, more importantly, refer cases to prosecutors. In the United States, police discretion with regard to these matters is considerable.47 In other countries, it is more limited, such that (p. 36) police lack the authority to not pursue charges against persons arrested on suspicion of criminal misconduct; only prosecutors can make those decisions.48

Judges should scrutinize the work of both police and prosecutors, to ensure that they have acted according to defensible procedures, and perhaps more broadly, “best practices” for gathering evidence and building cases against those accused of crimes. Indeed, even if the accused are prepared to admit their guilt in exchange for modest sentence concessions, ones that do not overwhelm the evidence in a given case, judges should be required to ensure that there is sufficient evidence to warrant translating their admissions of guilt into convictions.49 In civil law countries, judges are required to be more vigilant in their scrutiny of confessions or tendered guilty pleas.50 In the United States, party control over the evidence renders judges more in the way of passive bystanders in the plea process.51

Defense attorneys play a crucial role in promoting the rigor of criminal procedure, especially in common law systems in which judges are more passive. This is true whether defense attorneys are employees of the state, subsidized by the state, or privately employed. It is defense attorneys, more than the accused themselves, who can challenge evidence that is unreliable or insufficient, or who can complain if their clients are being pressured to admit guilt despite the scantiness of the state’s evidence against them.52 Also, as previously noted, defense attorneys can help to ensure that the accused are treated with dignity, rather than being deprived of more of their rights than is justified by the investigation and adjudication of charges.

Appellate review is a further layer of rigor, although what it consists of varies considerably across jurisdictions. Common law jurisdictions tend to limit review to the detection of legal errors and rights violations, whereas civil law systems lean toward more substantive re-evaluation of the verdicts rendered at trials, and sometimes permit the introduction of new evidence. These varying approaches to rigor are nonetheless consistent with providing those convicted of crimes some opportunity for further evaluation of the verdicts against them and the processes that produced them. However, in some jurisdictions, the higher courts have rendered appellate review something of a toothless tiger by adopting “harmless error” doctrines with regard to mistaken lower (p. 37) court rulings against the interests of the accused.53 In the United States, convictions are also allowed to stand in spite of findings that the accused were inadequately represented by legal counsel, and this in spite of the well-known difficulties in determining whether the evidence against the accused would have been significantly different had a competent attorney been available to question it or block its introduction.54

Importantly, this checking and rechecking of the work of criminal justice officials by other officials, and perhaps also by the public, will be possible only if the grounds for decisions made by officials are, to the maximum extent feasible, transparent. Indeed, transparency might be trumpeted as a fundamental value of criminal procedure in its own right.55 Here I treat it as subservient to the value of rigor. Officials throughout the system should be required and encouraged not only to act with integrity but to explain the grounds for their decisions. Doing so will enable others to evaluate those decisions and, if necessary, challenge or overturn them.

There is debate about the specific forms that the institutional commitment to rigor should take. In many of the civil law systems, the strong preference is for professionalized bureaucracies to handle the work of investigating and adjudicating criminal charges. Such bureaucracies provide education and training to officials and situate them in hierarchical organizations that continuously monitor and, if necessary, correct their work.56 The public, as a further check on the workings of the criminal justice system, is kept at arm’s length, since those workings tend to be conceived as matters involving expertise more than lay input.

In common law systems, at least some of the work of monitoring and checking the decisions of criminal justice officials is relegated to the public.57 This is especially true in the United States, where key officials in the criminal justice system are elected. In common law jurisdictions, there is also the distinctive commitment to having juries populated by ordinary citizens. Some who defend jury trials cast them as a vital check on the power of the state to punish.58 They do so in spite of the fact that citizen jurors are often untrained and inexperienced in deploying complex legal terms and rules, unaware of the extent to which the evidence they are presented with is “synthesized,” and not required to provide reasons for their verdicts. The latter practice, in particular, appears to fly in the face of transparency; citizen juries are “black boxes” into which evidence is poured and from which verdicts emerge unexplained. It is possible to defend this practice as crucial to ensuring the independence of the jury’s judgments from the control of other government (p. 38) officials. Yet it is hard to see how general verdicts, so-called, are fully consistent with seeing to it that trials are rigorous and evidence-driven.59

Why separate integrity and rigor and insist on both? The answer to this question can be discerned by thinking about how employment of the reasonable doubt standard in determinations of guilt or its absence, though obviously crucial in the adjudicative process, will be useless if the authorities, up to that point, have fabricated, manipulated, or shaded evidence against the accused. Judges or juries tasked with rendering verdicts in criminal cases must work with the evidence provided to them. If that evidence has not been produced with integrity, then even the most stringent standard of proof will do little to shield the innocent, or partly innocent, from conviction. Even the more elaborate checks and balances of most criminal justice systems will be thwarted if some officials are determined to gain convictions dishonestly or without sufficient care. In short, rigor in the absence of integrity will be impotent to produce just adjudicative outcomes.

IV. Fairness

The third fundamental value is that of fairness. In light of the other values so far discussed, fairness might seem redundant. Surely, the other values already identified are necessary, and might be deemed sufficient, to ensure the fairness of criminal procedure. Yet the fairness to which I now draw attention has a distinctive and limited role. Suppose that the persons suspected of, arrested for, and charged with crimes are treated with dignity. Suppose also that the investigatory and adjudicative procedures to which they are subjected have integrity and rigor. What could possibly go wrong if all of these conditions are satisfied? To see the answer to this question, consider how persons are introduced into the system, and thereby become suspects, arrestees, or individuals formally accused of crimes. Police and prosecutors might routinely and systematically focus on some (apparently) non-law-abiding citizens while ignoring others who are equally or more (apparently) non-law-abiding. Historically, the tendency for the authorities to focus their attention on the apparent or real criminal misconduct of the poor, racial or ethnic minorities, or immigrants, while ignoring or not vigorously pursuing the apparent or real criminal misconduct of the wealthy, powerful, or ethnically or culturally dominant majority is deeply troublesome.

There are myriad reasons for this skewed focus. They range from overt prejudice to implicit bias to the ease with which socially marginal communities can be policed and their apparent malefactors arrested and prosecuted.60 Police and prosecutors often are granted enormous discretion to carry out their difficult and complex tasks. The degree (p. 39) to which this discretion is monitored and limited by the courts, or by professional bureaucracies, varies considerably. In the United States, for instance, prosecutorial charging discretion is largely unfettered.61 Chief prosecutors might exercise some oversight and control over the charging decisions of their subordinates, but whether and how far they do so varies and depends entirely on the inclinations of chief prosecutors. Judges rarely, if ever, second-guess prosecutorial charging decisions and the courts have made it difficult for accused persons who believe that those decisions have been made in biased fashion to legally contest them.62 U.S. courts have also made pretextual police stops legal and turned a more or less blind eye to “stop and frisk” tactics that focus disproportionate police scrutiny on minority citizens.63 Add into this mix the sorry state of the indigent defense system in the United States, along with the prodigious ability of prosecutors to manipulate the sentencing differential, and the path is cleared for quick and easy convictions of poor and minority members of society.

As critics of the U.S. system note, its “assembly line” approach is especially apparent in misdemeanor cases in which no one—not police, prosecutors, defense attorneys, or judges—have much interest in slowing the process or avoiding mistakes.64 The unfortunate members of society who find themselves on the assembly line are often so demoralized by the apparent inevitability of its outcomes that they quickly accede to guilty pleas. As one scholar has noted, sometimes the only “evidence” against persons accused of misdemeanors is the fact that they have been arrested by the police.65 There are costs to wider society in the perceived unfairness of a criminal justice system that picks on its most vulnerable members and subjects them to investigatory and adjudicative procedures that are not only cavalier about their actual guilt or innocence but ignore the equal or greater criminal misconduct of the privileged.66 The alienation from the system that this sense of unfairness breeds will make it harder to police and prosecute legitimate crimes.

Hence, a third fundamental value, that of fairness, seems needed. It holds that state officials must strive to treat like citizens alike with respect to their apparent infidelity to the strictures of the criminal law. This value should inform the actions of police and criminal investigators, in the first instance. However, it should also shape the conduct of the prosecutors and judges who make decisions about whether to pursue or abjure charges, modify them, or seek alternatives to more standard forms of prosecution, such as restorative justice conferences, or specialty courts. The possibility that kinder or gentler case dispositions are afforded some offenders more often or quickly than other ones, based on factors such as race, gender, ethnicity, or class, should be something that is on (p. 40) every criminal justice official’s radar. More than this, official records that detail the demographic characteristics of those arrested, charged, and convicted, as well as the grounds for decisions to continue or discontinue investigations and prosecutions, should be compiled and routinely made available to researchers, government officials, and other interested parties.67 Again, transparency will enable vital checks and balances within the criminal justice system, and larger society, to operate more effectively—in this case, to ensure that all citizens are treated fairly.

In civil law systems, fair treatment of all citizens, at least by prosecutors, might seem more likely under long-standing principles of “mandatory prosecution.”68 Such principles are supposed to ensure that prosecutorial charging decisions are rendered according to the facts and the law, exclusive of other factors that might sway prosecutors one way or the other. However, the pressures of case-processing seem to have eroded these principles, especially with respect to less serious criminal offenses, and thus prosecutorial offers of reduced charges or sentences in exchange for admissions of guilt have emerged. Yet such practices inevitably give prosecutors more discretion, and what comes with that discretion—the possibility that it will be exercised unfairly.

V. Concluding Remarks

I have already indicated that the values herein identified might conflict. Evidence exclusion rules, premised on protecting the dignity of persons, in the form or their privacy or intimate relationships, might block the state’s efforts to gather reliable evidence against those whom it suspects of crimes. Likewise, insisting on the transparency of the adjudicative process might seem to conflict with shielding the (merely) accused from public contempt or ignominy, with its damaging effects on the enjoyment of their basic rights.69 These and other tensions between and among the values would need to be addressed in a fuller accounting of their roles in criminal procedure. Regrettably, these more ambitious tasks will have to be postponed to another occasion. As noted at the outset of this chapter, my aim has been the limited one of sparking a debate about the fundamental values that should inform and shape criminal procedure. I hope to have shown that there is some merit to this project. More than this, I hope to have shown that the fundamental values I have identified are cogent in their own right and useful in evaluating the complex of institutions, rules, and practices that collectively comprise criminal procedure.

(p. 41) Instead of drawing this discussion to a tidy close, let me illustrate its complexities by briefly discussing two further candidates for inclusion on the list of fundamental values of criminal procedure. The first is what might be termed the “effectiveness” of criminal procedure. Surely some attention ought to be paid to the success or failure of criminal justice systems in arresting, charging, and seeing to the punishment of legal malefactors. In societies that appear to over-criminalize and overpunish the conduct of their citizens, it will seem dubious to urge more or better policing, swifter and more efficient prosecution, and timely sentencing by the courts. Yet it is possible to imagine institutions and practices of criminal procedure that are so encumbered by complex rules and procedures, or whose officials are so demoralized, lazy, or corrupt, that few crimes are ever fully investigated or processed. As a result, crime might go more or less unchecked in the social order. Perhaps we take the effectiveness of our police, prosecutors, and courts for granted. Yet we should not do so, and therefore effectiveness might be advanced as a fundamental value of criminal procedure.70

Though I concede that effectiveness is an important virtue of any system of criminal justice, my sense is that it is more secondary than fundamental. Granted, we very much want police, prosecutors, and the courts to perform their vital roles and to do so in effective fashion. Yet the undoubted value of that seems appropriately limited and constrained by the other, more fundamental values of dignity, truth, and fairness. Those values have priority, even if they should not be interpreted in ways that make the jobs of criminal justice officials unduly difficult. But the devil is in the details here, for it is apparent that tensions between effectiveness and these other, more fundamental values exist and merit further analysis.

The second candidate for inclusion in an account of the fundamental values of criminal procedure was alluded to in my discussion of the value of truth and its ancillary components, integrity and rigor. It is a value—call it the value of “expertise”—that highlights important differences between the common law and civil law traditions. According to it, the various decisions involved in arresting, charging, and prosecuting persons for crimes ought to be made by officials specifically educated and trained to make them. Those decisions also should be monitored and corrected by more senior officials tasked with ensuring that the decisions made by lower-level officials have been made in accordance with proper (and public) rules and procedures, ones designed to ensure integrity and rigor, and thus get at the truth of allegations against accused persons.

There is much in the value of expertise to recommend it. However, it is controversial in ways that the other fundamental values I have defended are not. Part of the controversy has to do with specifying how much education or training are needed and how formal these must be; part of it has to do with determining how much monitoring and correction by others, and what kinds of it, are necessary or advisable. Even the U.S. criminal justice system, which in some ways seems to value democratic participation more than expertise, does not wholly eschew the latter. Police officers and investigators receive (p. 42) formal training and are subject to supervision by superiors. They also are mentored more informally by experienced officers and investigators. Similar things are true of subordinate prosecutors, who are not elected but appointed by chief prosecutors and, one would hope, overseen by them. Still, it must be conceded that the degree and quality of supervision that subordinate prosecutors receive will vary. Also, their superiors might have been elected, or in some cases appointed, on mostly political grounds. Any monitoring and correction of the decisions made by criminal justice officials by the democratic electorate will be anathema to those in the civil law tradition; political considerations, they might maintain, should have no role to play in the decisions made by those who advance accused persons through the criminal justice process.71

Still, there are dangers in expertise-ruled systems. They might become insular or their workings so opaque as to undermine the sense among citizens that the system is operating in the public’s interests. There is also room for debate about whether citizens in democratic societies should have no or very little role in the complex processes whereby suspicions by the authorities that individuals have committed crimes are transformed into criminal convictions and sentences, with their potentially devastating consequences for individuals.72 It could be argued that the debate here ought to be about at what points and in what ways the public should have input into the workings of the criminal justice system, not about whether it should have input at all.

References

Mirjan R. Damaška, Truth in Adjudication, 49 Hastings L.J. 289 (1998)Find this resource:

R.A. Duff, Lindsay Farmer, Sandra Marshall & Victor Tadros, III The Trial on Trial: Towards A Normative Theory of the Criminal Trial (2007)The Integrity of Criminal Process: From Theory into Practice (Jill Hunter, Paul Roberts, Simon N.M. Young & David Dixon eds., 2016)Find this resource:

Larry Laudan, Truth, Error, and Criminal Law: An Essay in Legal Epistemology (2006)Find this resource:

Richard L. Lippke, Taming the Presumption of Innocence (2016)Find this resource:

Richard L. Lippke, The Ethics of Plea Bargaining (2011)Find this resource:

Christopher McCrudden, Human Dignity and Judicial Interpretation of Human Rights, 19 Eur. J. Int’l L. 655 (2008)Find this resource:

Jeremy Waldron, Dignity, Rank, and Rights (2012)Find this resource:

Notes:

(1) As the debate about forms of proactive policing, and in particular what is known as “entrapment,” illustrates. For an overview of that debate, see Maura F.J. Whelan, Lead Us Not into (Unwarranted) Temptation: A Proposal to Replace the Entrapment Defense with a Reasonable Suspicion Requirement, 133 U. Pa. L. Rev. 1193 (1985); Jonathan C. Carlson, The Act Requirement and the Foundations of the Entrapment Defense, 73 Va. L. Rev. 1011 (1987); and Gerald Dworkin, The Serpent Beguiled Me and I Did Eat: Entrapment and the Creation of Crime, 4 L. & Phil. 17 (1985).

(2) In England and Wales, a body known as The Criminal Cases Review Commission was set up to review apparent miscarriages of justice after all normal appeals have been exhausted. See Andrew Ashworth & Mike Redmayne, The Criminal Process 390 ff (4th ed. 2010).

(3) For illuminating discussion of some of the complexities of human dignity discourse in the context of judicial interpretation, see Christopher McCrudden, Human Dignity and Judicial Interpretation of Human Rights, 19 Eur. J. Int’l L. 655 (2008).

(4) See, among others, Jeremy Waldron, Dignity, Rank, and Rights (2012); George Kateb, Human Dignity (2011); Michael Rosen, Dignity: Its History and Meaning (2012); Charles R. Beitz, Human Dignity in the Theory of Human Rights: Nothing but a Phrase?, 41 Phil. & Pub. Affairs 259 (2013).

(5) Immanuel Kant, Groundwork of the Metaphysics of Morals (Mary Gregor & Jens Timmerman trans., 2012), and Critique of Practical Reason (Mary J. Gregor trans., 1997).

(6) For a similar account of human dignity in the context of German constitutional law, see Edward J. Eberle, Human Dignity, Privacy, and Personality in German and American Constitutional Law, 1997 Utah L. Rev. 963.

(7) Here, I gloss over the debate about whether basic human rights are rights against interferences of various kinds by other individuals or state agents, or also include entitlements to basic welfare goods such as subsistence, education, and healthcare.

(8) I develop this account of rights as grounding progressively stronger presumptions against state agents interfering in the lives of suspects and accused persons in Richard L. Lippke, Taming the Presumption of Innocence (2016).

(9) Id. at 158–62.

(10) For discussion of dignity in the context of police interrogation, see Meghan J. Ryan, Miranda’s Truth: The Importance of Adversarial Testing and Dignity in Confession Law, 43 N. Ky. L. Rev. 413 (2016).

(11) The claim that indigent persons should be provided defense attorneys at state expense is more controversial than is sometimes acknowledged by legal scholars. For discussion, see Loren E. Lomasky, Aid without Egalitarianism: Assisting Indigent Defendants, in From Social Justice to Criminal Justice 84 (William Heffernan & John Kleinig eds., 2000), and Richard L. Lippke, The Minimal State and Indigent Defense, 35 Crim. Justice Ethics 1 (2016).

(12) See, e.g., Thomas W. Church Jr., In Defense of “Bargain Justice,” 13 L. & Soc’y Rev. 509 (1979).

(13) On the harshness of recent U.S. sentencing law, see Michael Tonry, Sentencing in America, 1975–2025, 42 Crime & Justice 141 (2013).

(14) See Richard L. Lippke, The Ethics of Plea Bargaining 43–49 (2011).

(15) See United States v. Ruiz, 536 U.S. 622, 628, 631 (2002) (holding that prosecutors can make plea bargains contingent on defendants waiving their right to disclosure of impeachment evidence against prosecution witnesses, and describing rights to exculpatory and impeachment evidence are “trial-related rights” that are “part of [the] basic ‘fair trial’ guarantee”); id. at 633–34 (Thomas, J., concurring) (disclosure rights are “not implicated at the plea stage”).

(16) See Milton Heumann, Plea Bargaining: The Experiences of Prosecutors, Judges, and Defense Attorneys 69–70 (1978); Ruiz, 536 U.S. 622 (approving prosecutor tactic to make a favorable plea bargain contingent on defendant waiving some discovery rights). For other failures of “informed” consent in U.S. plea bargaining, see Jenia I. Turner, Plea Bargaining across Borders 40–41 (2009), and Darryl K. Brown, Free Market Justice: How Democracy and Laissez Faire Undermine the Rule of Law 107 (2016).

(17) Turner, supra note 16, at 40.

(18) For illuminating discussions, see David Dolinko, Is There a Rationale for the Privilege against Self-Incrimination?, 33 UCLA L. Rev. 1063 (1986), and John D. Jackson & Sarah J. Summers, The Internationalisation of Criminal Evidence, 241–84 (2012).

(19) Albert Alschuler, A Peculiar Privilege in Historical Perspective, in The Privilege against Self-Incrimination: Its Origins and Development (R.H. Helmholz et al. eds., 1997).

(20) See, e.g., Thomas Weigend, Is the Criminal Process about Truth? A German Perspective, 26 Harv. J.L. Pub. Pol’y 157 (2003); Mirjan R. Damaška, Truth in Adjudication, 49 Hastings L.J. 289 (1998); Elisabetta Grande, Dances of Criminal Justice: Thoughts on Systematic Differences and the Search for the Truth, in Crime, Procedure and Evidence in Comparative and International Context: Essays in Honour of Professor Mirjan Damaška (John Jackson, Máximo Langer & Peter Tiller eds., 2008).

(21) See Albert W. Alschuler, The Changing Plea Bargaining Debate, 69 Cal. L. Rev. 652 (1981).

(22) Though as Damaška, supra note 20, at 305 observes, there is a typically some asymmetry in the stringency of the criminal law’s efforts to prove the guilt of the accused versus prove their innocence.

(23) On the criminal law as punishing “public wrongs,” see R.A. Duff, Lindsay Farmer, Sandra Marshall & Victor Tadros, III, The Trial on Trial: Towards a Normative Theory of the Criminal Trial (2007).

(24) See, e.g., Jean Hampton, A New Theory of Retribution, in Liability and Responsibility: Essays in Law and Morals (R.G. Frey & C.W. Morris eds., 1991).

(25) See Keith A. Findlay & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 Wis. L. Rev. 291 (2006).

(26) See Dan Simon, The Limited Diagnosticity of Criminal Trials, 64 Vand. L. Rev. 143 (2011).

(27) Findlay & Scott, supra note 25, at 307–22.

(28) Even if plea bargaining, U.S. style, does not exist in many countries, plea concessions of various kinds do, as does reduced punishment for confessing. See Turner, supra note 16. See also Máximo Langer, From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure, 45 Harv. Int’l L.J. 1 (2004).

(29) On the distinction between rewards for pleading guilty and threats for failing to do so in the form of trial penalties, see Lippke, supra note 14, at 10–37.

(30) Simon, supra note 26, at 150–51.

(31) Findlay & Scott, supra note 25, at 334–41.

(32) See David Luban, Lawyers and Justice: An Ethical Study 68–74 (1988).

(33) Although witness coaching, or “proofing” as it is often termed, is prohibited in civil law countries. Nonetheless, judges armed with full case dossiers will be more capable of determining whether it has occurred. For more on civil law practices as opposed to U.S. practices in preparing witnesses, see Kai Ambos, “Witness Proofing” before the ICC: Neither Legally Admissible nor Necessary, in The Emerging Practice of the International Criminal Court 599 (Carsten Stahn & Göran Sluiter eds., 2009).

(34) Turner, supra note 16, at 74; Langer, supra note 28, at 11.

(35) Simon, supra note 26, at 184–89.

(36) See Richard S. Frase, Comparative Criminal Justice as a Guide to American Law Reform: How Do the French Do It, How Can We Find Out, and Why Should We Care?, 78 Cal. L. Rev. 545, 673 (1990).

(37) For an insightful consideration of “integrity” with regard to police investigation, witness preparation, plea negotiation, and related contexts, see The Integrity of Criminal Process: From Theory into Practice (Jill Hunter, ‎Paul Roberts, Simon N.M. Young & David Dixon eds., 2016).

(38) See Thomas Weigend, There Is Only One Presumption of Innocence, 42 Netherlands J. Legal Phil. 193 (2013); R.A. Duff, Who Must Presume Whom to Be Innocent of What?, 42 Netherlands J. Legal Phil. 170 (2013).

(39) Lippke, supra note 8, at 129–54; Larry Laudan, Truth, Error, and Criminal Law: An Essay in Legal Epistemology (2006).

(40) By “partly innocent” persons, I refer to individuals who, though they have committed crimes, have been overcharged by prosecutors.

(41) See Jackson & Summers, supra note 18, at 96.

(42) See Laudan, supra note 39, at 63–88. See also Erik Lillquist, Recasting Reasonable Doubt: Decision Theory and the Virtues of Variability, 36 U.C-Davis L. Rev. 85 (2002); Michael L. DeKay, The Difference between Blackstone-Like Error Ratios and Probabilistic Standards of Proof, 21 L. & Social Inquiry 95 (1996); John Kaplan, Decision Theory and the Factfinding Process, 20 Stan. L. Rev. 1065 (1968).

(43) 4 William Blackstone, Commentaries on the Laws of England 420 (1769; Beacon Press 1962).

(44) As vividly illustrated by Larry Laudan in The Rules of Trial, Political Morality, and the Costs of Error: Or, Is Proof beyond a Reasonable Doubt Doing More Harm than Good?, in Oxford Studies in Philosophy of Law 195 (Leslie Green & Brian Leiter eds., 2011).

(45) See Lippke, supra note 8, at 105–28. For a similar account, see Duff et al., supra note 23, at 89–90.

(46) Findlay & Scott, supra note 25, at 327–31. See also Randolph N. Jonakait, The Ethical Prosecutor’s Misconduct, 23 Crim. L. Bull. 550 (1997); Daniel Medwed, Emotionally Charged: The Prosecutorial Charging Decision and the Innocence Revolution, 31 Cardozo L. Rev. 2187 (2010).

(47) Joseph Goldstein, Police Discretion Not to Invoke the Criminal Process: Low Visibility Decisions in the Administration of Justice, 69 Yale L.J. 543 (1960).

(48) See Thomas Feltes, Uwe Marquardt & Stefan Schwarz, Policing in Germany: Developments in the Last 20 Years, in Handbook on Policing in Central and Eastern Europe (Gorazd Meško et al. eds., 2013).

(49) See Lippke, supra note 14, at 16–23.

(50) For an account of German judicial supervision of plea dispositions in cases in which the accused are prepared to confess, see Turner, supra note 16, at 114–17. For a more skeptical account of judicial supervision in such cases, see Abraham S. Goldstein & Martin Marcus, The Myth of Judicial Supervision in Three “Inquisitorial” Systems: France, Italy, and Germany, 87 Yale L.J. 240 (1977).

(51) The notion of “party control” over the evidence comes from Mirjan R. Damaška, The Faces of Justice and State Authority: A Comparative Approach to the Legal Process (1986). For the ways in which the abilities of prosecutors and defense attorneys to control the evidence the judge sees abets “fact bargaining” in the United States, see Nancy J. King, Judicial Oversight of Negotiated Sentences in a World of Bargained Punishment, 58 Stan. L. Rev. 593 (2005).

(52) See John B. Mitchell, The Ethics of the Criminal Defense Attorney—New Answers to Old Questions, 32 Stan. L. Rev. 293 (1980).

(53) Findlay & Scott, supra note 25, at 348–54. See also Brandon L. Garrett, Innocence, Harmless Error, and Federal Wrongful Conviction Law, 2005 Wis. L. Rev. 35 (2005); Harry T. Edwards, To Err Is Human, But Not Always Harmless: Why Should Legal Error Be Tolerated?, 70 NYU L. Rev. 1167 (1995).

(54) See Strickland v. Washington, 466 U.S. 669 (1984) For discussion of the limits of the ability of the courts to determine whether a more effective attorney would have produced a different outcome for the accused, see Stephanos Bibas, The Psychology of Hindsight and After-the-Fact Review of Ineffective Assistance of Counsel, 2004 Utah L. Rev. 1.

(55) See Stephanos Bibas, Transparency and Participation in Criminal Procedure, 81 NYU L. Rev. 911 (2006).

(56) See Damaška, supra note 51, at 18–23.

(57) See Brown, supra note 16, at 25–60.

(58) For useful discussion of instrumentalist versus noninstrumentalist accounts of trials, see Duff et al., supra note 23, at 55–92. See also Albert W. Dzur, Punishment, Participatory Democracy, and the Jury (2012).

(59) For discussion, see Richard L. Lippke, The Case for Reasoned Criminal Trial Verdicts, 22 Canadian J. L. & Jurisp. 313 (2009).

(60) See Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010); Michael Tonry, Malign Neglect: Race, Crime, and Punishment in America (1996); William J. Stuntz, Race, Class, and Drugs, 98 Colum. L. Rev. 1795 (1998).

(61) See Angela J. Davis, Arbitrary Justice: The Power of the American Prosecutor (2007).

(62) See Alexander, supra note 60, at 114–19.

(63) Id. at 66–69. See also Jeffrey Fagan & Garth Davies, Street Stops and Broken Windows: Terry, Race, and Disorder in New York City, 28 Fordham Urb. L.J. 457 (2000).

(64) See Alexandra Natapoff, Misdemeanors, 85 S. Cal. L. Rev. 1313 (2012); Josh Bowers, Punishing the Innocent, 156 U. Pa. L. Rev. 1117 (2007).

(65) Natapoff, supra note 64, at 1344–45.

(66) See Jeffrey Fagan & Tracy L. Meares, Punishment, Deterrence, and Social Control: The Paradox of Punishment in Minority Communities, 6 Ohio St. J. Crim. L. 173 (2008). More generally, see Tom R. Tyler, Why People Obey the Law (1990).

(67) As noted in Davis, supra note 61, at 100–03, the Supreme Court in United States v. Armstrong, 517 U.S. 456 (1996), effectively shielded prosecutors from having to reveal the grounds for their charging decisions.

(68) See Shawn Boyne, Is the Journey from the In-Box to the Out-Box a Straight Line? The Drive for Efficiency and the Prosecution of Low-Level Criminality in Germany, in The Prosecutor in Transnational Perspective 37 (Erik Luna & Marianne Wade eds., 2012).

(69) For illuminating discussion of the many questions raised by the public identification of suspects and offenders, see James B. Jacobs, The Eternal Criminal Record (2015).

(70) See Herbert L. Packer, The Limits of the Criminal Sanction 158–63 (1968), where he discusses the underlying values of the “crime control” model.

(71) See Brown, supra note 16, at 25–59.

(72) See Dzur, supra note 58, at 125–48. See also Stephanos Bibas, The Machinery of Criminal Justice (2012).