The uneasy relationship between criminal procedure and criminal justice

Most discussions of the law of criminal procedure presuppose a static system in which constitutional rules limit the government conduct at which they aim, bur otherwise leave the criminal justice system untouched. Professor Stuntz argues that this picture is mistaken-that criminal procedure has potentially large and probably perverse systemic effects. Extensive constitutional regulation of the criminal process pushes prosecutors to substitute poorer defendants for wealthier ones by disproportionately raising the cost of prosecuting the wealthy. Constitutional law also pushes defense counsel to substitute procedural litigation for factual investigation, and thereby reduces prosecutors' incentive to take care not to prosecute innocent defendants. It pushes legislatures to broaden the scope of criminal liability and raise sentences, and also to keep a firm lid on funding for appointed criminal defense counsel. These tendencies in turn push courts to engage in ever more procedural regulation. In short, criminal procedure helps some defendants only at the cost of harming others, and the defendants harmed are disproportionately the poor and the innocent, who most need constitutional law's protection. The law might well do a better job of advancing those defendants' interests if courts worried less about the criminal process and more about the scope of substantive criminal liability and the funding of appointed criminal defense counsel.