CRIMINAL JUSTICE SYSTEM
The BILL OF RIGHTS has sometimes been likened to a national code of CRIMINAL PROCEDURE. However, the Constitution regulates many important aspects of criminal justice that are not "procedural" in any sense; at the same time, it fails to regulate many other important aspects, both procedural and nonprocedural. Moreover, features of the criminal justice system that are subject to extensive constitutional limitations are not, in practice, so strictly regulated as is commonly believed. It is therefore appropriate to reflect on which important aspects of criminal justice are and are not governed by the Constitution, what factors explain these patterns, and what the future role of the Constitution should be in defining fundamental norms of criminal justice.
To evaluate the role of constitutional norms in criminal matters, it is necessary to analyze the entire criminal justice system. Each political entity in the United States (local, state, or federal) has such a system; it consists not only of the rules of EVIDENCE and procedure applicable in criminal matters, but also the major institutions of criminal Page 714 | Top of Article justice (for example, the police, lawyers, judges, court and correctional officials), as well as the provisions of the criminal law (crimes, defenses, and penalties). This system can be envisioned as a process that begins with the definition of the criminal law and the institutions of justice; proceeds "chronologically" through increasingly selective stages of investigation, charging, adjudication, appellate review, and punishment; and ends with the continuing careers of convicted offenders, who all too often, begin the process all over again. Each of these stages of the process raises fundamental issues of justice and of individual-state relations that might be, but often are not, regulated by constitutional norms. At the same time, the enforcement of any such norm is limited by that norm's systemic context; specific rules are dependent on other rules, many of which are not subject to federal constitutional regulation. Thus, changes in specific constitutional norms are often canceled by compensating changes in other rules or practices in the same or different parts of the system.
The following is a list of the major issues at each stage of the above chronological flow model that are and are not subject to significant constitutional regulation:
- The definition of crimes and penalties is largely unregulated by the Constitution, except for certain limitations imposed by the EX POST FACTO, BILL OF ATTAINDER, and EQUAL PROTECTION clauses, the FIRST AMENDMENT and Eighth Amendment, the RIGHT OF PRIVACY, and the VAGUENESS and fair notice doctrines. Almost all issues relating to the definition of defenses (e.g., self defense, intoxication, and insanity) are unregulated.
- Except for the appointment and tenure of federal judges, the requirements of judicial neutrality in the issuance of warrants and at trial, and certain First Amendment limitations on the hiring and firing of public employees, the institutions of criminal justice are not regulated at all by the federal Constitution; many are also not closely governed by STATE CONSTITUTIONS. Important unregulated issues include selection and internal supervision of police, prosecutors, and correctional officials; selection and tenure of state judges; and training of police, prosecutors, judges, and defense attorneys.
- The investigation of criminal charges is covered by highly detailed constitutional limitations as to SEARCH AND SEIZURE, POLICE INTERROGATION AND CONFESSIONS, the RIGHT TO COUNSEL, and BAIL. Important unregulated issues include police decisions to investigate or not investigate, to use informants and undercover police officers, and to charge some offenders and offenses, but not others; magistrate shopping; nighttime arrests and searches; searches when no one but police are present; use of arrest and pretrial detention in minor cases; prompt appearance in court; appellate review of pretrial detention; and nonbail release conditions.
- Prosecutorial decisions to select offenders and charges, to later drop charges, and to engage in PLEA BARGAINING as to charges and the sentence, or both, have an enormous impact on case outcomes. However, except for very limited equal-protection and "vindictive prosecution" standards, these critical decisions are not regulated by the Constitution.
- Other pretrial procedures covered by the Constitution include the GRAND JURY (in federal cases only), certain aspects of DISCOVERY, motions to exclude evidence, and SPEEDY TRIAL. However, the powers of the prosecution and the defense to obtain statements from potential witnesses (other than the defendant) before a trial are not regulated by the Constitution.
- Extensive FAIR TRIAL rights are provided by the Constitution; examples are TRIAL BY JURY, right to counsel, CONFRONTATION with state witnesses, BURDEN OF PROOF, RIGHT AGAINST SELF-INCRIMINATION, and DOUBLE JEOPARDY. Important unregulated issues include the admissibility of the defendant's prior convictions or other misconduct, separation of guilt and sentencing evidence and findings, the necessity of written findings of guilt, multiple trials for the same offense in different states or in both state and federal systems, and most issues involving joinder of offenses and offenders in a single trial.
- Many of the fair trial standards also apply to SENTENCING proceedings, but they apply more flexibly. The Constitution does not require formal findings or reasons for a particular sentence, nor does it limit guilty plea concessions. Except for the imposition of CAPITAL PUNISHMENT, sentencing decisions need not be structured by guidelines. The Eighth Amendment sets some limits on disproportionately severe prison terms and fines, and sentences are also limited by certain First Amendment, equal protection, and right of privacy rules, but most sentences are not constitutionally regulated either as to their form or severity.
- The FREEDOM OF THE PRESS and fair trial principles govern media publicity and access to trials and certain pretrial proceedings.
- Although HABEAS CORPUS rights are guaranteed, it is not clear whether the Constitution guarantees defendants any right to direct appeal in state cases. If an appellate system is provided, it must meet minimal equal protection and DUE PROCESS requirements, but the number of appellate levels, composition of courts, and nature of appealable issues are not regulated.
- Victims have no rights under the Constitution—to be heard or to appeal, to be protected, or to receive compensation.
- Compensation of citizens for unconstitutional search, arrest, pretrial detention, or imprisonment is available under federal CIVIL RIGHTS statutes, but is subject to important limitations (for example, judicial immunity and police officer's defense of reasonable belief that arrest or search was lawful).
- The Constitution guarantees very few PRISONERS ' RIGHTS. Most fair trial rights do not apply to decisions such as prison discipline, transfers, parole, and revocation of probation.
To understand why the Constitution regulates criminal matters so selectively, it is necessary to consider not only the implications of FEDERALISM, but also the textual sources and historical development of federal constitutional norms. The constitutional texts applicable to criminal cases are mostly found in the Bill of Rights (1791) and the FOURTEENTH AMENDMENT (1868). Of these, only the latter applies directly to the states, and it did not provide much concrete guidance until the 1960s, when the WARREN COURT, with use of the INCORPORATION DOCTRINE, began to hold that certain Bill of Rights guarantees were implicit in the Fourteenth Amendment's due process clause. Because there were very few federal criminal cases until the twentieth century, there was little early case law interpreting Bill of Rights guarantees. Indeed, before the adoption of the EXCLUSIONARY RULE in federal cases in 1914, there was virtually no case law, because there was no criminal court remedy encouraging defendants to litigate constitutional claims.
The Supreme Court's application of the exclusionary rule to state criminal cases in 1961, along with its expansion of the availability of habeas corpus and right to counsel in 1963, set the stage for a veritable explosion of constitutional case law during the final years of the Warren Court. Nevertheless, this expansion was constrained by the texts of the Bill of Rights. These texts were written in response to specific perceived abuses of the late eighteenth century. Moreover, they were written at a time when crime tended to be local and relatively disorganized, and before the development of organized police forces and the emergence of the public prosecutor's monopoly over the bringing of cases to trial. Considering these dramatic changes in the nature of crime and criminal justice, the Bill of Rights remains remarkably relevant today, but it fails to address many fundamental issues of modern criminal justice. In the absence of specific provisions, the courts have had to create new rights either by broad analogy to specific rights, or by applying the more open-ended provisions of the due-process clauses of the Fifth and Fourteenth Amendments. However, both approaches weaken the legitimacy of such newly recognized rights and make them vulnerable to attack.
This inherent vulnerability of the Warren Court's jurisprudence, combined with the appointment of more conservative Justices by Presidents RICHARD M. NIXON and RONALD REAGAN, substantially slowed the expansion of criminal-process safeguards during the 1970s; indeed, the Supreme Court began to cut back on the scope of substantive rights and the availability of exclusionary and habeas corpus remedies. Notions of federalism also provided justification for this conservative shift; many believed that the Warren Court had gone too far in imposing strict federal standards on state criminal justice systems faced with rapidly rising crime rates and inadequate resources. Also, the relatively late development of these standards in federal cases and their very recent application to state cases lent some support to the view that they were not truly fundamental, at least in state cases.
But the Supreme Court did not simply relax the standards in state cases. Because the majority of Justices still accepted the premise of the selective incorporation doctrine—that a uniform definition of each right should apply in state and federal criminal cases—the conservative decisions of the 1970s and 1980s resulted in the lowering of constitutional standards in federal cases as well. Congress responded with a few statutory safeguards, and the Supreme Court's own FEDERAL RULES OF CRIMINAL PROCEDURE continued to provide certain standards more restrictive than the Constitution requires. At the same time, many state courts responded by relying more and more on STATE CONSTITUTIONAL LAW to provide greater protections. In addition, state statutes, rules of procedure, and evidence codes continued to provide important safeguards in areas where constitutional law had retreated or had never been applied.
The degree of the Supreme Court's conservative shift since 1970 should not be overstated. Indeed, a closer analysis of the jurisprudence of the Warren Court reveals that it too had doubts about the wisdom of expanding and strictly enforcing constitutional standards in state and federal criminal cases. Six themes that cut across the spectrum of specific rights illustrate this ambivalence. Although these themes became much clearer in the 1970s and 1980s, they were already evident in the Warren Court era.
First, even the Warren Court recognized that some procedural rights are less important than others. The most important rights were those directly related to the integrity of the adversary system, particularly the right to counsel. Such rights, when violated, were more likely to receive retroactive application and to lead to automatic reversal of a conviction. At the other end of the spectrum, receiving the least protection, were FOURTH AMENDMENT rights. In theory, such rights involve fundamental issues of individual freedom from governmental oppression. In practice, however, they tend only to be asserted by defendants who, in light of illegally seized physical evidence, appear to be clearly guilty of criminal conduct. Thus, the Warren Court recognized several important limitations on these Page 716 | Top of Article rights and related exclusionary remedies; for example, these rights received little if any retroactive application. Post-Warren Court decisions reflect this "hierarchy of rights" theme even more strongly.
Second, even the adversary-system rights given highest priority by the Warren Court were not applied with equal strictness at all stages of the criminal process. Except for police interrogations covered by MIRANDA V. ARIZONA (1966), the right to counsel was not applied before the filing of formal charges. Similarly, the Court did not show much interest in extending fair trial standards to critical decisions made by correctional authorities, such as disciplinary isolation and revocation of parole. Indeed, the Supreme Court (along with most lower courts) adopted a "hands off" approach toward the entire correctional process. Decisions after 1970 did recognize some rights for prisoners and extended counsel rights to some preindictment proceedings. It remains true, however, that constitutional fair trial guarantees apply primarily at trial; the criminal justice system is not, on the whole, really an "adversary" system.
Third, even some trial rights were not deemed applicable to all criminal cases: the Warren Court held that there is no right to a jury trial for "petty offenses" (maximum sentence not exceeding six months' imprisonment). The petty-offense limitation was later applied in different form to the right to counsel at trial. The rationale for this limitation, also widely followed in nonconstitutional procedural rules, is that more severe penalties require more exacting procedures of adjudication. During the pretrial investigative stage, however, the opposite rule applies: more serious offenses give the citizen fewer rights and the police greater power, for example, to make warrantless entries to arrest.
Fourth, the Warren Court's failure to condemn certain problematic features of American criminal justice implied that fundamental concepts, such as due process and equal protection, may mean different things in criminal cases than they do in other contexts. This view was later explicitly adopted by the Court in Gerstein v. Pugh (1975), holding that the Fourth Amendment defines (sometimes less strictly) "the "process that due' for seizures of person or property in criminal cases." The Warren Court never questioned the traditional use of money bail to condition pretrial release, even though such use often constitutes blatant WEALTH DISCRIMINATION. The Court held that the right to vote could not be lost by inability to pay a POLL TAX, , yet it allowed the right of physical liberty before conviction to be lost by inability to post bail. Similarly, the Warren Court never seriously questioned the dominant form of adjudication of criminal cases, that is, plea bargaining, which would seem to be either an UNCONSTITUTIONAL CONDITION on the exercise of rights or a case of coerced waiver of rights. It scarcely seems imaginable that the Warren Court would have tolerated in any other context an institutionalized practice whose main purpose is to discourage the exercise of constitutional rights.
Fifth, the Warren Court recognized that police and courts have a practical need for easily administered "bright-line" rules that disregard the specific circumstances of each case. Although most of the Warren Court's bright lines tended to be overly broad with respect to individual rights, some tilted more in the other direction, for example, the automatic right to conduct a limited SEARCH INCIDENT TO ARREST. Later Supreme Court decisions have struck the opposite balance: most, but not all, bright-line rules favor the police.
Finally, the Warren Court undercut many of its liberal, prodefendant rights by recognizing significant limitations on the scope of exclusionary remedies. Thus, defendants lack STANDING to object to even the most outrageous violations of another person's rights; they cannot object to the use of illegally seized evidence to contradict their own testimony on the witness stand; remote products ("fruits") of illegality remain admissible in the prosecution's case, and there is no criminal court remedy for an illegal arrest that does not produce any such evidentiary fruits; and the admission of clearly excludable evidence generally does not require reversal if the reviewing court concludes, in light of the untainted evidence, that admission was HARMLESS ERROR. These exceptions were greatly expanded (and became more numerous) in later Supreme Court decisions; meanwhile, field studies of the exclusionary rule confirmed what perhaps was true even under the Warren Court: exclusion of evidence is rare, occurring in less than one percent of cases, many of which still result in conviction.
Why are fundamental constitutional rights so weakly enforced, even by liberal judges? In addition to the important reasons of history and federalism, noted earlier, there are a number of factors peculiar to the criminal process. First, enforcement of rights usually costs money, and the criminal justice system is inherently underfunded: crime often increases much faster than prisons can be built; legislatures enact moralistic and "get tough" laws, but not the tax increases necessary to pay for their enforcement; and criminal laws are rarely repealed or reduced in severity because there are no votes for the elected official who is, or even appears to be, "soft" on crime or immorality. Second, in part as a result of the first problem, almost all cases are resolved by a guilty plea rather than by trial; defendants who plead guilty waive not only their trial rights, but frequently also their rights to contest the introduction of illegally obtained evidence.
Third, the remedies for constitutional violations create problems of their own. The exclusionary rule often requires courts to throw out reliable evidence; retrial after appellate reversal of conviction may be impossible because of lost evidence, witnesses, and testimony. Fourth, the actors purportedly regulated by constitutional norms retain substantial unregulated discretion—not only because of the need to limit caseloads to stay within resource limits, but also because the correctness of the actors' decisions often turns on case-specific factual determinations, such as voluntariness of consent or waiver, which does not permit close regulation by legal norms. In any case, such norms govern relatively few issues; officials deal with cases and defendants under many rules and at many stages of system processing, and each stage provides opportunities to undercut or evade the occasionally strict rule.
Finally, it must be admitted that Americans are deeply ambivalent about some of their most fundamental ideals of justice. Such ideals often make it more difficult to arrest and convict criminals; particularly in times of rapidly increasing crime rates, most citizens prefer to protect themselves and their property rather than criminals. Even where constitutional norms are designed to protect the innocent, they are necessarily most likely to be asserted by a guilty defendant. As noted earlier, this is almost always true in the Fourth Amendment area, but it is generally true throughout the system. The presumption of innocence itself is somewhat counterintuitive: most arrested persons and certainly most defendants brought to trial are guilty, or ought to be; if they were not, our criminal justice system would be grossly defective. Similarly, the right against compelled self-incrimination is contrary to the general duty to testify and the view that wrongdoers have a duty to admit their mistakes; the right to a vigorous defense is contrary to the view that wrongdoers should not be assisted in their efforts to conceal the truth and avoid punishment; and limits on deceptive police practices are contrary to the view that sometimes it is necessary to fight fire with fire. In light of these value conflicts, citizens—and sometimes even lawyers and judges—may lose sight of the importance of our most fundamental criminal-procedure safeguards.
What, then, can we conclude about the proper role of the Constitution in criminal matters? Despite the problems described, Americans certainly must not stop trying to improve the quality of criminal justice. Moreover, constitutional norms play a central role in these efforts—defining, as the Supreme Court said of the CRUEL AND UNUSUAL PUNISHMENT clause, "the evolving standards of decency which mark the progress of a maturing society." At the same time, constitutional norm setting has its limits. Only the most fundamental and lasting norms can be expressed in the constitutional text. Moreover, the case law articulating such norms must not get too far ahead of our ability and willingness to enforce these rules; otherwise, idealism and hope turn to hypocrisy and cynicism.
The Constitution is only one source of norms in criminal cases; other major sources are state constitutions, statutes, codes of criminal procedure and evidence, model law and procedural codes, administrative regulations, and the COMMON LAW,. Increasingly, Americans have begun to look to statements of international human rights; although the INFLUENCE OF THE AMERICAN CONSTITUTION ABROAD once made the United States a leader in this field, international norms have now progressed to the point where they sometimes set standards more strict than, or in areas not covered by, the American Constitution.
RICHARD S. FRASE
AMERICAN BAR ASSOCIATION 1980 ABA Standards for Criminal Justice, 4 vols., 2nd ed. Boston: Little, Brown.
AMERICAN LAW INSTITUTE 1975 A Model Code of Prearraignment Procedure. Philadelphia: American Law Institute.
FRASE, RICHARD S. 1986 Criminal Procedure in a Conservative Age: A Time to Rediscover the Critical Nonconstitutional Issues. Journal of Legal Education 36:79–82.
FRIENDLY, HENRY J. 1965 The Bill of Rights as a Code of Criminal Procedure. California Law Review 53:929–956.
KAMISAR, YALE; LA FAVE, WAYNE; and ISRAEL, JEROLD H. 1990 Modern Criminal Procedure: Cases, Comments, Questions, 7th ed. St. Paul, Minn.: West Publishing Co.
LA FAVE, WAYNE R. and SCOTT, AUSTIN W., JR. 1986 Criminal Law, 2nd ed. St. Paul, Minn.: West Publishing Co.
ZIMRING, FRANKLIN E. and FRASE, RICHARD S. 1980 The Criminal Justice System: Materials on the Administration and Reform of the Criminal Law. Boston: Little, Brown.