power from Congress to federal judges. 2 Budgets are more straightforward. Congress and state legislatures decide how much to spend on federal and state law enforcement agencies, and on federal and state prisons. The same is mostly true of federal and state courts, though local govemments pay a large share of the bill for state court systems. 3 Public defenders are funded differently in different places-sometimes locally, sometimes state-wide sometimes a mix of the two. Local govemments pay the large majority of local prosecutors'budgets, and an even larger share of local police budgets. 36 Finally, the locals pay most of the cost of local jails, which house about one-third of Americas inmate population Divide these various expenditures into three chronological phases--policing adjudication, and punishment- and some interesting patterns emerge. Local govemments pay 70% of the total cost of policing(and 92% of the cost of local See 125.Ct. 738, 756(Breyer, J, opinion of the Court in part)(retaining the Guidelines but with a new, more flexible reasonableness standard of review) In 1972, local governments paid 62% of the bill for criminal adjudication. By 2001 that share had fallen to 42%. These figures include prosecution and defense expenditures as well as judicial budgets. See 2003 SOURCEBOOK, supra note 5, at 5 tbl. 1.4 1974 SOURCEBOOK, supra note 10, at 33 tbl. 1.2 See Carol J. DeFrances, Bureau of Justice Statistics, U.S. Dep't of Justice, State Funded Indigent Defense Services, 1999(2001)[hereinafter Defrances, Indigent Defense Services]. This report notes that 21 states pay all or nearly all the tab for indigent defense in 9 states, county governments pay the full cost. Elsewhere, funding is divided between states and localities. ld. at 1 Defrances, Prosecutors, supra note 23, at 4(Half of the prosecutors'offices received 85% or more of their funding from the county government); Carol J. DeFrances Bureau of Justice Statistics, U.S. Dep't of Justice, State Court Prosecutors in Small Districts, 2001, at 4(2003)(Half of the full-time offices serving districts with a population under 250,000 received 76%or more of their funding from the county government) See infra note 38 and accompanying text Local responsibility forjail budgets sometimes encourages state legislators to shift prisoners from penitentiaries, which the states fund, to jails. See David boerner& roxanne Lieb, Sentencing Reform in the Other Washington, 28 CRIME just. 71, 94-96(2001)
32See 125 S.Ct. 738, 756 (Breyer, J., opinion of the Court in part) (retaining the Guidelines but with a new, more flexible reasonableness standard of review). 33In 1972, local governments paid 62% of the bill for criminal adjudication. By 2001 that share had fallen to 42%. These figures include prosecution and defense expenditures as well as judicial budgets. See 2003SOURCEBOOK, supra note 5, at 5 tbl. 1.4; 1974 SOURCEBOOK, supra note 10, at 33 tbl. 1.2. 34See Carol J. DeFrances, Bureau of Justice Statistics, U.S. Dep’t of Justice, StateFunded Indigent Defense Services, 1999 (2001) [hereinafter DeFrances, Indigent Defense Services]. This report notes that 21 states pay all or nearly all the tab for indigent defense; in 9 states, county governments pay the full cost. Elsewhere, funding is divided between states and localities. Id. at 1. 35DeFrances, Prosecutors, supra note 23, at 4 (“Half of the prosecutors’ offices received 85% or more of their funding from the county government”); Carol J. DeFrances, Bureau of Justice Statistics, U.S. Dep’t of Justice, State Court Prosecutors in Small Districts, 2001, at 4 (2003) (“Half of the full-time offices serving districts with a population under 250,000 received 76% or more of their funding from the county government”). 36See infra note 38 and accompanying text. 37Local responsibility for jail budgets sometimes encourages state legislators to shift prisoners from penitentiaries, which the states fund, to jails. See David Boerner & Roxanne Lieb, Sentencing Reform in the Other Washington, 28 CRIME & JUST. 71, 94-96 (2001). 10 power from Congress to federal judges.32 Budgets are more straightforward. Congress and state legislatures decide how much to spend on federal and state law enforcement agencies, and on federal and state prisons. The same is mostly true of federal and state courts, though local governments pay a large share of the bill for state court systems.33 Public defenders are funded differently in different places — sometimes locally, sometimesstate-wide, sometimes a mix of the two.34 Local governments pay the large majority of local prosecutors’ budgets,35 and an even larger share of local police budgets.36 Finally, the locals pay most of the cost of local jails, which house about one-third of America’s inmate population.37 Divide thesevarious expendituresinto three chronological phases — policing, adjudication, and punishment — and some interesting patterns emerge. Local governments pay 70% of the total cost of policing (and 92% of the cost of local
policing, which is the kind that matters most), 42% of the cost of criminal djudication, and 29% of the cost of corrections. Though spending on all three phases has risen over the past thirty years, spending in the latter two categories has risen substantially more. Nationwide, spending on policing rose 148%from 1972to 2001. Spending on adjudication and corrections rose 298% and 456% respectively. o The prison population multiplied seven-fold. As those numbers suggest, federal and state spending is reshaping the system, changing its focus from g to pu The final aspect of the allocation of power over American criminal justice is constitutional law itself. Fourth and Fifth amendment law largely governs police searches and seizures and interrogation of suspects. State and federal statutes play a significant role in those areas, but most of those statutes deal with subjects that the Supreme Court has expressly declined to regulate. The story with respect to trial procedure is similar. Constitutional law governs the most important procedures: the scope of the right to trial by jury and jury selection, burdens of proof, the finality The data cover fiscal year 2001. See 2003 SoURCEBOOK, supra note 5, at 5 tbl. 14. 9 See The prison population in 1970 was 198, 831. MARGARET WERNER CAHALAN HISTORICAL CORRECTIONS STATISTICS IN THE UNITED STATES, 1850-1984, at 29 tbl 3-2 ( 1986). By 2003, the number stood at 1, 387, 269. 2003 SOURCEBOOK, supra note 5, at 478 bl.6.1 In part, that is because federal and state dollars fund a steadily larger share of the system. In 1972, local governments paid for 56% of all criminal justice expenses; federal and state governments paid for the other 44%. 1974 SoURCEBOOK, supra note 10, at 33 tbl 1. 2. By 2001, those percentages were reversed. 2003 SOURCEBOOK, supra note 5, at 5 tbL. 4 See infra notes 92-94, 100-05 and accompanying text. The jury right applies where the maximum sentence exceeds six months incarceration. See Baldwin v. New York, 399US. 117(1970). It also applies in some other cases, never clearly specified by the Court. See, e. g, Lewis v United States, 518 U.S. 322
38The data cover fiscal year 2001. See 2003 SOURCEBOOK, supra note 5, at 5 tbl. 1.4. 39See supra note 10. 40See supra notes 11-12. 41The prison population in 1970 was 198,831. MARGARET WERNER CAHALAN, HISTORICAL CORRECTIONS STATISTICS IN THE UNITED STATES, 1850-1984, at 29 tbl. 3-2 (1986). By 2003, the number stood at 1,387,269. 2003 SOURCEBOOK, supra note 5, at 478 tbl. 6.1. 42In part, that is because federal and state dollars fund a steadily larger share of the system. In 1972, local governments paid for 56% of all criminal justice expenses; federal and state governments paid for the other 44%. 1974 SOURCEBOOK, supra note 10, at 33 tbl. 1.2. By 2001, those percentages were reversed. 2003SOURCEBOOK, supra note 5, at 5 tbl. 1.4. 43See infra notes 92-94, 100-05 and accompanying text. 44The jury right applies where the maximum sentence exceeds six months’ incarceration. See Baldwin v. New York, 399 U.S. 117 (1970). It also applies in some other cases, never clearly specified by the Court. See, e.g., Lewis v. United States, 518 U.S. 322 11 policing, which is the kind that matters most), 42% of the cost of criminal adjudication, and 29% of the cost of corrections.38 Though spending on all three phases has risen over the past thirty years, spending in the latter two categories has risen substantially more. Nationwide, spending on policing rose 148% from 1972 to 2001.39 Spending on adjudication and corrections rose 298% and 456%, respectively.40 The prison population multiplied seven-fold.41 As those numbers suggest, federal and state spending is reshaping the system, changing its focus from policing to punishment.42 The final aspect of the allocation of power over American criminal justice is constitutional law itself. Fourth and Fifth Amendment law largely governs police searches and seizures and interrogation of suspects. State and federal statutes play a significant role in those areas, but most of those statutes deal with subjects that the Supreme Court has expressly declined to regulate.43 The story with respect to trial procedure is similar. Constitutional law governs the most important procedures: the scope of the right to trial by jury44 and jury selection,45 burdens of proof,46 the finality
f verdicts, the right to confront opposing witnesses, and so on. Though nonconstitutional law plays a large role in shaping discovery, so do a pair of constitutional doctrines: the privilege against self-incrimination limits defendants disclosure, while Brady doctrine expands the govemments. Last but not least, the (1996). The right has recently been expanded to include a large fraction of sentencing factors. See Blakely v. Washington, 124.Ct. 2531(2004); Apprendi v New Jersey, 530 U.S.466(2000) 4The key doctrines are the Sixth Amendment right to a jury venire that repres a fair cross-section of the community, see Duren v. Missouri, 439US 357(1979), and the Fourteenth Amendment right to be free from the discriminatory use of peremptory challenges, see Batson v. Kentucky, 476 U.S. 79(1986). The latter requirement binds defendants as well as the government. See George v McCollum, 505 U.S. 42(1992). 'In re Winship, 397 U.S. 358(1970). For the best discussions of the tortured caselaw on the meaning of winship's constitutionalized reasonable doubt rule, see Ronald J. Allen, Structuring Jury Decisionmaking in Criminal Cases: A Unified Constitutional Approach to Evidentiary Devices, 94 HARV. L REV. 321(1980); John Calvin Jeffries, Jr Paul B. Stephan Ill, Defenses, Presumptions, and Burden of proof in the Criminal Law, 88 YALE LJ.1325(1979) On the basic rule that acquittals are unappealable, see Fong Foo v. United States, 369U.S. 141(1962). On the application of collateral estoppel to criminal cases, see Ashe v. Swenson, 397US 436(1970). On the permissibility (or not) of motions to reconsider defense verdicts, see Smith v Massachusetts, 125S. Ct. 1129(2005) See Crawford v. Washington, 541 U.S. 36(2004) The past thirty-five years have seen a revolution in the nonconstitutional law of discovery, with vastly greater compelled disclosure than had been the norm. For the best account of the early stages of this revolution, see Robert P Mosteller, Discovery Against the fense: Tilting the Adversarial Balance, 74 CAL. L REV. 1569(1986). The best analyses of the current landscape appear in a pair of articles by John Douglass: Balancing Hearsay and Criminal Discovery, 68 FORDHAM L REV. 2097(2000); Beyond Admissibility. Real Confrontation, Virtual Cross-Examination, and the Right to Confront Hearsay, 67 GEO WASH.L.REV.191(1999) The privilege matters in both directions. The discovery revolution mentioned in the preceding note was possible only because the Supreme Court decided that compelling disclosure from the defense did not automatically violate the Fifth amendment. See
(1996). The right has recently been expanded to include a large fraction of sentencing factors. See Blakely v. Washington, 124 S.Ct. 2531 (2004); Apprendi v. New Jersey, 530 U.S. 466 (2000). 45The key doctrines are the Sixth Amendment right to a jury venire that represents a fair cross-section of the community, see Duren v. Missouri, 439 U.S. 357 (1979), and the Fourteenth Amendment right to be free from the discriminatory use of peremptory challenges, see Batson v. Kentucky, 476 U.S. 79 (1986). The latter requirement binds defendants as well as the government. See George v. McCollum, 505 U.S. 42 (1992). 46In re Winship, 397 U.S. 358 (1970). For the best discussions of the tortured caselaw on the meaning of Winship’s constitutionalized reasonable doubt rule, see Ronald J. Allen, Structuring Jury Decisionmaking in Criminal Cases: A Unified Constitutional Approach to Evidentiary Devices, 94 HARV. L. REV. 321 (1980); John Calvin Jeffries, Jr. & Paul B. Stephan III, Defenses, Presumptions, and Burden of Proof in the Criminal Law, 88 YALE L.J. 1325 (1979). 47On the basic rule that acquittals are unappealable, see Fong Foo v. United States, 369 U.S. 141 (1962). On the application of collateral estoppel to criminal cases, see Ashe v. Swenson, 397 U.S. 436 (1970). On the permissibility (or not) of motions to reconsider defense verdicts, see Smith v. Massachusetts, 125 S.Ct. 1129 (2005). 48See Crawford v. Washington, 541 U.S. 36 (2004). 49The past thirty-five years have seen a revolution in the nonconstitutional law of discovery, with vastly greater compelled disclosure than had been the norm. For the best account of the early stages of this revolution, see Robert P. Mosteller, Discovery Against the Defense: Tilting the Adversarial Balance, 74 CAL. L.REV. 1569 (1986). The best analyses of the current landscape appear in a pair of articles by John Douglass: Balancing Hearsay and Criminal Discovery, 68 FORDHAM L. REV. 2097 (2000); Beyond Admissibility: Real Confrontation, Virtual Cross-Examination, and the Right to Confront Hearsay, 67 GEO. WASH. L. REV. 191 (1999). 50The privilege matters in both directions. The discovery revolution mentioned in the preceding note was possible only because the Supreme Court decided that compelling disclosure from the defense did not automatically violate the Fifth Amendment. See 12 of verdicts,47 the right to confront opposing witnesses,48 and so on. Though nonconstitutional law plays a large role in shaping discovery,49 so do a pair of constitutional doctrines: the privilege against self-incrimination limits defendants’ disclosure,50 while Brady doctrine expands the government’s.51 Last but not least, the
Sixth Amendment right to the effective assistance of counsel regulates the quality of representation defendants receive 2 By contrast, constitutional law places few limits on crime definition, save for crimes that involve speech, consensual sex, or reproduction. (The large majority of crimes involve none of those things. Until Apprendi v. New Jersey, the constitutional law of noncapital sentencing was similarly restrained. Today, Apprendi doctrine restricts sentencing procedure, but only where sentencing is done by rule 5 Substantive sentencing doctrine remains unregulated, 9 as do both Williams v Florida, 399 U.S. 78(1970). On the other hand, the Fifth Amendment law of subpoenas substantially restricts compelled disclosure from white-collar defendants, either directly or through their lawyers. See, e. g, United States v. Hubbell, 530 U.S. 27(2000) The canonical case is Brady v. Maryland, 373 U.S. 83(1963). For two arguably inconsistent applications of Brady's right to disclosure of material exculpatory evidence, see Strickler v. Greene, 527 U.S. 263(1999): Kyles v. Whitley, 514 U.S. 419(1995) E. g, Rompilla v. Beard, 125 S Ct. 2456(2005): Strickland v. Washington, 466 U.S.668(1984) In addition to the categories listed in this sentence, constitutional law bars vagrancy laws and seriously limits loitering statutes. See Chicago v. Morales, 527 U.S. 41 1999); Papachristou v Jacksonville, 405 U.S. 156(1972). These"crimes"are chiefly used means of granting police authority over low-level street disorder. Consequently, vagueness doctrine is best seen as an adjunct to Fourth Amendment law, not as a serious check on crime definition statute).8, Texas v. Johnson, 491 U.S. 397(1989)(invalidating criminal flag burning See Lawrence v. Texas, 539 U.S. 558(2003)(invalidating criminal sodomy statute) 'See roe v. Wade, 410 U.S. 113(1973(invalidating criminal abortion statute) 530 U.S. 466(2000)(requiring jury determination of all facts necessary to authorize defendant's sentence). For an excellent analysis, see Kevin R. Reitz, The New Sentencing Conundrum Policy and Constitutional Law at Cross-Purposes, 105 COLUM. L REV. 1082(2005)
Williams v. Florida, 399 U.S. 78 (1970). On the other hand, the Fifth Amendment law of subpoenas substantially restricts compelled disclosure from white-collar defendants, either directly or through their lawyers. See, e.g., United States v. Hubbell, 530 U.S. 27 (2000). 51The canonical case is Brady v. Maryland, 373 U.S. 83 (1963). For two arguably inconsistent applications of Brady’s right to disclosure of material exculpatory evidence, see Strickler v. Greene, 527 U.S. 263 (1999); Kyles v. Whitley, 514 U.S. 419 (1995). 52E.g., Rompilla v. Beard, 125 S.Ct. 2456 (2005); Strickland v. Washington, 466 U.S. 668 (1984). 53In addition to the categories listed in this sentence, constitutional law bars vagrancy laws and seriously limits loitering statutes. See Chicago v. Morales, 527 U.S. 41 (1999); Papachristou v. Jacksonville, 405 U.S. 156 (1972). These “crimes” are chiefly used as means of granting police authority over low-level street disorder. Consequently, vagueness doctrine is best seen as an adjunct to Fourth Amendment law, not as a serious check on crime definition. 54E.g., Texas v. Johnson, 491 U.S. 397 (1989) (invalidating criminal flag burning statute). 55See Lawrence v. Texas, 539 U.S. 558 (2003) (invalidating criminal sodomy statute). 56See Roe v. Wade, 410 U.S. 113 (1973 (invalidating criminal abortion statute). 57530 U.S. 466 (2000) (requiring jury determination of all facts necessary to authorize defendant’s sentence). 58For an excellent analysis, see Kevin R. Reitz, The New Sentencing Conundrum: Policy and Constitutional Law at Cross-Purposes, 105 COLUM. L. REV. 1082 (2005) 13 Sixth Amendment right to the effective assistance of counsel regulates the quality of representation defendants receive.52 By contrast, constitutional law places few limits on crime definition,53 save for crimes that involve speech,54 consensual sex,55 or reproduction. 56 (The large majority of crimes involve none of those things.) Until Apprendi v. New Jersey, 57 the constitutional law of noncapital sentencing was similarly restrained. Today, Apprendi doctrine restricts sentencing procedure, but only where sentencing is done by rule.58 Substantive sentencing doctrine remains unregulated,59 as do both
substance and process where sentencing is discretionary. Broadly speaking, capital punishment follows the same pattern, regulating procedure heavily and substance lightly--though both kinds of regulation(especially procedure)are more intensive in death penalty cases In three contexts- police discretion, prosecutorial discretion, and plea bargaining-the absence of constitutional regulation plays a central role in the system. Police officers are free to choose whom to search and arrest as long as they satisfy the relevant Fourth Amendment standards. Technically, they may not discriminate on the basis of race or other protected characteristics, but as a practical matter their discretion is nearly total. That matters little for crimes like murder or armed robbery. Investigating those crimes is politically mandatory, and the people and places investigated depend on the people and places victimized. But police discretion matters a great deal when it comes to drug crime. Illegal drugs are attered through the population. Whom the police catch depends on where they look. Where they look is largely up to them Prosecutorial discretion if anything, even broader. ofFicial Thereinafter Reitz, Sentencing Conundrum See Ewing v. California, 538 U.S. 11(2003): Harmelin v. Michigan, 501 U.S957 (1991) See williams v. New York, 337 U.S. 241(1949). Fc between this proposition and Apprendi, see Reitz, Sentencing Conundrum, supra note 58 at1094-96 6I For much the best discussion. see Carol s. Steiker jordan m. Steiker. Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment, 109 HARV. L REV. 355(1995). For a recent--and exceptional -case of ubstantive regulation, see Roper v. Simmons, 125. Ct. 1183(2005)(invalidating death penalty for offenders who were under 18 at the time of their crimes) See whren v United States, 517US806(1996) bSee Inmates of Attica Correctional Facility v. Rockefeller, 477 F 2d 375(2d Cir 1973). The leading Supreme Court cases do not involve criminal prosecution. See Heckler v Chaney, 470US 821(1985)(upholding FDa authority to decline to initiate enforcement proceedings against officials who administer lethal injections ); Allen v Wright, 468 U.S 737(1984)(denying standing to parents seeking to enforce Irs ban on tax exemptions for
[hereinafter Reitz, Sentencing Conundrum]. 59See Ewing v. California, 538 U.S. 11 (2003); Harmelin v. Michigan, 501 U.S. 957 (1991). 60See Williams v. New York, 337 U.S. 241 (1949). For an analysis of the tension between this proposition and Apprendi, see Reitz, Sentencing Conundrum, supra note 58, at 1094-96. 61For much the best discussion, see Carol S. Steiker & Jordan M. Steiker, Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment, 109 HARV. L. REV. 355 (1995). For a recent — and exceptional — case of substantive regulation, see Roper v. Simmons, 125 S.Ct. 1183 (2005) (invalidating death penalty for offenders who were under 18 at the time of their crimes). 62See Whren v. United States, 517 U.S. 806 (1996). 63See Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375 (2d Cir. 1973). The leading Supreme Court cases do not involve criminal prosecution. See Heckler v. Chaney, 470 U.S. 821 (1985) (upholding FDA authority to decline to initiate enforcement proceedings against officials who administer lethal injections); Allen v. Wright, 468 U.S. 737 (1984) (denying standing to parents seeking to enforce IRS ban on tax exemptions for 14 substance and process where sentencing is discretionary.60 Broadly speaking, capital punishment follows the same pattern, regulating procedure heavily and substance lightly — though both kinds of regulation (especially procedure) are more intensive in death penalty cases.61 In three contexts — police discretion, prosecutorial discretion, and plea bargaining — the absence of constitutional regulation plays a central role in the system. Police officers are free to choose whom to search and arrest as long as they satisfy the relevant Fourth Amendment standards.62 Technically, they may not discriminate on the basis of race or other protected characteristics, but as a practical matter their discretion is nearly total. That matters little for crimes like murder or armed robbery. Investigating those crimes is politically mandatory, and the people and places investigated depend on the people and places victimized. But police discretion matters a great deal when it comes to drug crime. Illegal drugs are scattered through the population. Whom the police catch depends on where they look. Where they look is largely up to them. Prosecutorial discretion is, if anything, even broader.63 Official