The Uneasy Relationship Between Criminal Procedure and Criminal
Justice
William J. Stuntz
Most discussions of the law of criminal procedure presuppose a
static system in which constitutional rules limit the government
conduct at which they aim, but 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.
