《法学资料大全》（英文版）刑事审判和行政规章.pdf

INTRODUCTION Large literatures discuss the constitutional law of criminal justice and the politics of crime. To date, no substantial literature addresses the relationship between the two. At first blush, that relationship seems straightforward: politicians ignore the interests of criminal suspects and defendants, so the Supreme Court steps in to protect those interests. On this view, politics is to constitutional law as a disease is to the medicine that cures it. America's politics of crime is indeed diseased. But the metaphor may get causation backward. The constitutional proceduralism of the 1960s and after helped to create the harsh justice of the 1970s and after. Overcriminalization, excessive punishment, racially skewed drug enforcement, overfunding of prisons and underfunding of everything else-these familiar political problems are as much the consequences of constitutional regulation as the reasons for it. The medicine is reinforcing the disease Political incentives are the mechanism. Constitutional law creates a series of olitical taxes and subsidies making some kinds of legislation and law enforcement more expensive and others cheaper. Since the 1960s, the Supreme Court has regulated policing and trial procedure aggressively, while leaving substantive criminal law and (until the past few years noncapital sentencing to the politicians Consequently, legislators find it easy to expand criminal codes and raise sentences but harder to regulate policing and the trial process. These incentives apply to spending as well. Prison budgets receive a constitutional subsidy. Budgets for criminal adjudication and(especially) local police are subject to a constitutional tax Jim Whitman uses this phrase as the title of his brilliant book on the history of criminal punishment in America and Europe. JAMES Q. WHITMAN, HARSH JUSTICE CRIMINAL PUNISHMENT AND THE WIDENING DIVIDE BETWEEN AMERICA AND EUROPE (2003) See United States v. Booker, 125 S Ct. 738(2005); Blakely v. Washington, 124 S Ct 2531(2004): Apprendi v. New Jersey, 530 U.S. 466(2000) Cf. Blakely, 124 S Ct. at 2546(O'Connor, J, dissenting)(While not a constitutional prohibition of] guidelines schemes, the majoritys decision today exacts substantial constitutional tax ). Until Blakely, Supreme Court Justices used the phras

1 Jim Whitman uses this phrase as the title of his brilliant book on the history of criminal punishment in America and Europe. JAMES Q. WHITMAN, HARSH JUSTICE: CRIMINAL PUNISHMENT AND THE WIDENING DIVIDE BETWEEN AMERICA AND EUROPE (2003). 2 See United States v. Booker, 125 S.Ct. 738 (2005); Blakely v. Washington, 124 S.Ct. 2531 (2004); Apprendi v. New Jersey, 530 U.S. 466 (2000). 3Cf. Blakely, 124 S.Ct. at 2546 (O’Connor, J., dissenting) (“While not a constitutional prohibition [of] guidelines schemes, the majority’s decision today exacts a substantial constitutional tax”). Until Blakely, Supreme Court Justices used the phrase 2 INTRODUCTION Large literatures discuss the constitutional law of criminal justice and the politics of crime. To date, no substantial literature addresses the relationship between the two. At first blush, that relationship seems straightforward: politicians ignore the interests of criminal suspects and defendants, so the Supreme Court steps in to protect those interests. On this view, politics is to constitutional law as a disease is to the medicine that cures it. America’s politics of crime is indeed diseased. But the metaphor may get causation backward. The constitutional proceduralism of the 1960s and after helped to create the harsh justice1 of the 1970s and after. Overcriminalization, excessive punishment, racially skewed drug enforcement, overfunding of prisons and underfunding of everything else — these familiar political problems are as much the consequences of constitutional regulation as the reasons for it. The medicine is reinforcing the disease. Political incentives are the mechanism. Constitutional law creates a series of political taxes and subsidies, making some kinds of legislation and law enforcement more expensive and others cheaper. Since the 1960s, the Supreme Court has regulated policing and trial procedure aggressively, while leaving substantive criminal law and (until the past few years)2 noncapital sentencing to the politicians. Consequently, legislators find it easy to expand criminal codes and raise sentences but harder to regulate policing and the trial process. These incentives apply to spending as well. Prison budgets receive a constitutional subsidy. Budgets for criminal adjudication and (especially) local police are subject to a constitutional tax.3

To see how perverse those taxes and subsidies are, it helps to visualize the criminal justice system as a giant funnel. Entering the broad end of the funnel are the tens of millions of men and women whom the police search or seize each year, most of them guilty of nothing worse than a traffic offense. Slide down the funnel, and that broad pool of suspects narrows considerably, producing a smaller pool of criminal defendants: about two million per year charged with felonies, and several million more charged with misdemeanors. Most of these are guilty, but not all, and a sizeable fraction of even the felons are let off with essentially no punishment. 6 Slide down a bit farther and the pool narrows more, to the 700,000 who enter prison each year.' Sadly, there are innocents here too- but presumably their number is small, and no one knows who they are. Notice the pattern: as one proceeds from policing to adjudication to punishment, the systems targets grow fewer, less constitutional tax " only in tax cases No one knows how many searches and seizures the police conduct each year, but the number must be huge. According to the Statistical Abstract, 22.7 million people were the targets of motor vehicle stops in 1999. U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES-2002, at 195 No 309 [ hereinafter 2002STATISTICAL ABSTRACT This is more than double the number of felony and misdemeanor charges filed per year, combined. See infra note 5 SThe figures on felony and misdemeanor charges are imprecise. The Justice Department lists arrests"by offense charged. " BUREAU OF JUSTICE STATISTICS, U.S. DEPT OF JUSTICE. SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 2003. at 353 tbl. 4.6 hereinafter 2003 SoURCEBOOK ] The relevant table covers the majority ofthe United States but not the entire country, and some of the charged offenses may be categorized differently in different jurisdictions. Assuming the proportions hold nationally, there were at least 2.3 million felony charges in 2002. See id at 344 tbl. 4.1, 353 tbl. 4.6. On the same assumption, the number of misdemeanor charges was at least 9 million. Id In the 75 largest counties in 2002, 27%of those charged with felonies were not convicted, nearly always because charges were dropped. See 2003 SOURCEBOOK, supra note 5, at 457tbl 5.57. Of those who were convicted, 31% were not incarcerated; nearly all of those defendants were sentenced to probation. Id at 458 tbl. 5.59. Paige M. Harrison Allen J. Beck, Bureau of Justice Statistics, U.S. Dep't of Justice, Prison and Jail Inmates at Midyear 2004, at 6 tbl. 7(2005)(showing 686, 437 prison admissions in 2003)

“constitutional tax” only in tax cases. 4No one knows how many searches and seizures the police conduct each year, but the number must be huge. According to the Statistical Abstract, 22.7 million people were the targets of motor vehicle stops in 1999. U.S.CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES —2002, at 195 No. 309 [hereinafter 2002STATISTICALABSTRACT]. This is more than double the number of felony and misdemeanor charges filed per year, combined. See infra note 5. 5The figures on felony and misdemeanor charges are imprecise. The Justice Department lists arrests “by offense charged.” BUREAU OF JUSTICE STATISTICS,U.S.DEP’T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS — 2003, at 353 tbl. 4.6 [hereinafter 2003SOURCEBOOK]. The relevant table covers the majority of the United States but not the entire country, and some of the charged offenses may be categorized differently in different jurisdictions. Assuming the proportions hold nationally, there were at least 2.3 million felony charges in 2002. See id. at 344 tbl. 4.1, 353 tbl. 4.6. On the same assumption, the number of misdemeanor charges was at least 9 million. Id. 6 In the 75 largest counties in 2002, 27% of those charged with felonies were not convicted, nearly always because charges were dropped. See 2003SOURCEBOOK,supra note 5, at 457 tbl. 5.57. Of those who were convicted, 31% were not incarcerated; nearly all of those defendants were sentenced to probation. Id. at 458 tbl. 5.59. 7Paige M. Harrison & Allen J. Beck, Bureau of Justice Statistics, U.S. Dep’t of Justice, Prison and Jail Inmates at Midyear 2004, at 6 tbl. 7 (2005) (showing 686,437 prison admissions in 2003). 3 To see how perverse those taxes and subsidies are, it helps to visualize the criminal justice system as a giant funnel. Entering the broad end of the funnel are the tens of millions of men and women whom the police search or seize each year, most of them guilty of nothing worse than a traffic offense.4 Slide down the funnel, and that broad pool of suspects narrows considerably, producing a smaller pool of criminal defendants: about two million per year charged with felonies, and several million more charged with misdemeanors. 5 Most of these are guilty, but not all, and a sizeable fraction of even the felons are let off with essentially no punishment.6 Slide down a bit farther and the pool narrows more, to the 700,000 who enter prison each year.7 Sadly, there are innocents here too — but presumably their number is small, and no one knows who they are. Notice the pattern: as one proceeds from policing to adjudication to punishment, the system’s targets grow fewer, less

politically attractive, and less likely to vote. Constitutional law inverts the funnel. Suspects receive the most constitutional protection, criminal defendants get less, and prisoners get least of all Politically speaking, that structure is upside-down. Tens of millions of mostly nnocent criminal suspects can win political battles, at least sometimes. Two million mostly guilty felony defendants will find those battles harder to win. Several hundred thousand already-convicted prisoners may find victory impossible. To put the point in concrete terms, abused suspects like Rodney King have a lot more political appeal than prisoners like Willie Horton'-and the Kings outnumber the Hortons by a considerable margin. Yet constitutional law chiefly protects the suspects, not the prisoners. Politicians are freest to regulate where regulation is most likely to be one-sided and punitive a similar pattern characterizes criminal justice spending. Over the past generation-the time when constitutional law has played a large role in American criminal justice -state legislators and members of Congress have dramatically shifted the distribution of law enforcement dollars. Police spending has risen a little faster than other government spending. Spending on the adjudication process has For a good discussion of the rule barring voting by convicted felons and challenges to it, see Pamela S. Karlan, Convictions and Doubts: Representation, Retribution, and the Debate over Felon Disenfranchisement, 56 STAN. L REV. 1147(2004). For an argument that few felons would vote even if the rule were changed, see Thomas J. Miles, Felon Disenfranchisement and voter Turnout, 33 J LEGAL STUD. 85(2004) King was the Los Angeles motorist who, after a high-speed police chase, was beaten savagely by four officers; the beating was videotaped by a nearby civilian. The officers who beat King were tried and acquitted in state court, after which Los Angeles saw the second-worst urban riots in American history. Horton was the Massachusetts inmate who was freed on a prison furlough program during Michael Dukakis's governorship While on release, Horton committed assault, rape, and auto theft. In the 1988 presidential campaign, Vice President George Bush's campaign manager, Lee Atwater, used Horton case to attack Governor Michael dukakis for being soft on crime From 1972 to 2001, overall police spending rose 148%in constant dollars. This figure is taken from 2003 SOURCEBOOK, supra note 5, at 5 tbl. 1. 4, and CRIMINAL JUSTICE RESEARCH CENTER. U.S. DEPT OF JUSTICE. SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 1974, at 33 tbl. 1. 2 [hereinafter 1974 SOURCEBOOK]. The inflation adjustment is taken from U.S. CENSUS BUREAU STATISTICAL ABSTRACT OF THE UNITED STATES: 2004-2005

8For a good discussion of the rule barring voting by convicted felons and challenges to it, see Pamela S. Karlan, Convictions and Doubts: Representation, Retribution, and the Debate over Felon Disenfranchisement, 56 STAN. L. REV. 1147 (2004). For an argument that few felons would vote even if the rule were changed, see Thomas J. Miles, Felon Disenfranchisement and Voter Turnout, 33 J. LEGAL STUD. 85 (2004). 9King was the Los Angeles motorist who, after a high-speed police chase, was beaten savagely by four officers; the beating was videotaped by a nearby civilian. The officers who beat King were tried and acquitted in state court, after which Los Angeles saw the second-worst urban riots in American history. Horton was the Massachusetts inmate who was freed on a prison furlough program during Michael Dukakis’s governorship. While on release, Horton committed assault, rape, and auto theft. In the 1988 presidential campaign, Vice President George Bush’s campaign manager, Lee Atwater, used Horton’s case to attack Governor Michael Dukakis for being soft on crime. 10From 1972 to 2001, overall police spending rose 148% in constant dollars. This figure is taken from 2003 SOURCEBOOK, supra note 5, at 5 tbl. 1.4, and CRIMINAL JUSTICE RESEARCH CENTER,U.S.DEP’T OF JUSTICE,SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS — 1974, at 33 tbl.1.2 [hereinafter 1974 SOURCEBOOK]. The inflation adjustment is taken from U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES: 2004-2005, 4 politically attractive, and less likely to vote.8 Constitutional law inverts the funnel. Suspects receive the most constitutional protection, criminal defendants get less, and prisoners get least of all. Politically speaking, that structure is upside-down. Tens of millions of mostly innocent criminal suspects can win political battles, at least sometimes. Two million mostly guilty felony defendants will find those battles harder to win. Several hundred thousand already-convicted prisoners may find victory impossible. To put the point in concrete terms, abused suspects like Rodney King have a lot more political appeal than prisoners like Willie Horton9 — and the Kings outnumber the Hortons by a considerable margin. Yet constitutional law chiefly protects the suspects, not the prisoners. Politicians are freest to regulate where regulation is most likely to be one-sided and punitive. A similar pattern characterizes criminal justice spending. Over the past generation — the time when constitutional law has played a large role in American criminal justice — state legislators and members of Congress have dramatically shifted the distribution of law enforcement dollars. Police spending has risen a little faster than other government spending.10 Spending on the adjudication process has