Criminal Procedure, Justice, Ethics, and Zeal

William Stuntz’s recent article, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, offers a series of thoughtful observations on the reasons that criminal procedure doctrines designed to protect defendants have done so little to improve the criminal justice system. Stuntz’s article describes the unintended effects of attempts by the United States Supreme Court to improve criminal justice by closely regulating criminal procedure. That procedural focus has had perverse effects because, in a dynamic criminal justice system, other institutional players have responded to procedural rules in ways that undermine appellate courts’ goals. Specifically, legislatures have reacted by expanding substantive criminal law – which the Court chose not to regulate under the Due Process Clause – and by underfunding criminal defense (as well as prosecution offices). That reaction was especially strong because increased procedural regulation coincided with a dramatic increase in crime beginning in the 1960s, which further encouraged legislative reaction to antimajoritarian court decisions that favored defendants.