CRIMINAL JUSTICE PROCESS

The criminal justice process consists of the procedures public officials follow in the course of imposing criminal punishment. Criminal justice specialists commonly distinguish the investigatory and adjudicatory stages of the process. Cases must come to the attention of officials before an investigation can begin, the boundaries separating the two stages are occasionally blurred, and the same officials may be involved in both investigation and adjudication. Despite these important qualifications, the investigatory/adjudicatory classification remains quite useful.

Overview of the process

Generally speaking, the investigative stage is an inquisitorial process run by the police and the adjudicatory stage is an adversary process run by judges and lawyers. Sometimes prosecutors play a leading role in the investigation, and sometimes the police investigation continues even after the adversary process of adjudication has begun. Despite the occasions when this broad-brush description is not entirely accurate, in general the distinction between police investigations conducted before any defendant is formally accused of an offense in court, and the adjudication in court of those charges that are filed, provides a sound overview of the criminal justice process.

Although the term inquisitorial carries some negative connotations in Anglo-American legal culture, all the term refers to here is the absence of named defendants. Obviously, without a defendant there can be no adversary proceedings. Equally obviously no criminal justice process can assume an adversarial form during the initial stages of an investigation, when the authorities may not know for sure whether an offense has taken place or the identity of the offender. It may not be so obvious but it is equally true that many long-standing criminal justice controversies, including those about police interrogation and eyewitness identification proceedings, involve disagreements about when the investigation should cease and the adjudicatory process should commence.

One vital point about the investigatory/adjudicatory distinction should be made at the outset. It is, of course, possible to authorize the police themselves to adjudicate by simply conflating the investigation and the trial. In such a system the police, whether officially or secretly, have the power not just to use violence such as arrest or search for the purpose of bringing about a trial according to due process. They have also the power to punish supposed offenders without judicial authorization. Such systems, to which the epithet "police state" properly applies, have operated in many places and many times. Even in societies with a deep political commitment to due process, the police occasionally disregard the judicial process and punish suspects without trial. Thus the distinction between investigation, which must for practical reasons be assigned to an executive agency with paramilitary qualities, and adjudication, which is made more rather than less necessary by the existence of a paramilitary police force, is not an accident. It is instead the best institutional arrangement people have yet discovered for protecting themselves from private crime without subjecting themselves to arbitrary official power.

The criminal justice process is not the only form of official coercive social control. Individuals who are mentally ill and a danger to themselves or others may be committed to institutions indefinitely after a civil, as distinct from a criminal, hearing. Contraband and the fruits or instrumentalities of crime, such as an airplane used to smuggle drugs, may be seized by the state in civil as well as criminal forfeiture proceedings. The government like private individuals may bring a civil action for punitive damages when authorized by statute or court decision. The criminal justice process is the most extensive and most prominent, but by no means the exclusive, system of coercive social control.

The criminal justice process in the United States varies widely. Federal practice differs from that in the states and the practice in one state varies from that in another. Different police departments pursue different investigative strategies, and different court systems follow different procedures. What follows will be liberally sprinkled with words such as "typically," "commonly," and "generally." It would be difficult to put forward a descriptive assertion about the American criminal justice process to which no exception could be found. Nonetheless, the following description may prove useful, given the recognition that real people go to jail only in particular cases governed by the laws of a single jurisdiction that may depart from the norm in any number of important ways.

The investigatory process

Investigation of crime usually involves three elements. First, public officials, usually the police, must learn that an offense may have been, or is to be, committed. Second, law enforcement agents must identify the likely offender or offenders. Finally, they must collect and preserve evidence that the courts will accept as proving the suspect's guilt beyond reasonable doubt.

Police may learn of crimes in two basic ways. Police officers may themselves observe the offense or evidence of it, or they may receive a report or complaint from someone else. It might seem that relatively few crimes would be directly observed by the police, but a surprisingly large number of offenses are in fact discovered in just this way. Police on patrol may observe suspicious behavior, as when a vehicle circling slowly in a commercial area after hours has a license plate registered to a vehicle recently reported stolen. Moreover, a great many crimes, prominently including prostitution, illegal weapons, and drug offenses, do not involve anyone inclined to complain to the police. Although voluntary informants often come forward in these cases, effective investigation largely depends on undercover police agents.

Citizen reports provide the other major source of information about crimes. Not all crimes that occur are reported to the police, and not all crimes that are reported in fact took place or took place as the initial informant described. False reports, motivated by revenge or insurance fraud, are relatively rare. The failure to report crime is far more frequent.

Victims or other witnesses of crime may not come forward for a variety of reasons. They may perceive the chance of apprehending the offender as too remote to justify the time of reporting and testifying. They may be afraid of vengeance by the offender or by those acting on his behalf. They may be related to, or on friendly or intimate terms with, the offender. When researchers estimate the crime rate by surveying sample populations and asking how often the respondents have been victimized (victimization surveys ) the rate of actual crime appears to exceed the rate of reported crime by a very wide margin. It is generally agreed that homicide and auto theft are most frequently reported. It is also generally agreed that sexual assault and domestic violence are disproportionately underreported.

Once the police have determined that an offense has taken place, they must determine the likely perpetrator (or perpetrators). They must also gather evidence of guilt that will stand up in court. Although these two processes are closely related they are not identical, because some of the evidence police routinely use to identify the likely offender is not admissible in court. For example, police investigations often rely heavily on representations by informants that are based on what the informants have heard rather than what they have witnessed personally. Even if such an informant were willing to testify (and they typically are not), the hearsay rule usually would prevent the informant from testifying in court about what the informant has heard others say about the crime. Another important example is the criminal record of individuals previously arrested or convicted for crimes similar to the one under investigation. The police routinely consider the records of potential suspects, while the courts typically exclude such evidence under the character-evidence rules.

Even when the information before the police is admissible in court, the police must weigh its probative force in selecting potential suspects. Eyewitnesses are notoriously inaccurate and may give police completely incorrect descriptions of the offender. In rare cases individuals may confess to crimes they did not commit. Far more commonly they may attribute crimes in which they were involved to other persons who were not involved or involved to a lesser degree. Witnesses may shield the guilty with false alibis and the like. Physical evidence is not subject to the risk of deception but may mislead in other ways, as when illegal drugs are discovered in an automobile containing several passengers who accuse each other of sole possession.

The police must select potential suspects in the face of these challenges under severe time and resource constraints. As police departments often evaluate the work of their officers based on the clearance rate (the percentage of reported crimes that result in an arrest), the police may have an incentive to focus on the most likely suspect however unlikely his guilt is relative to that of persons unknown. On the other side of the equation the police may often have very strong suspicions about the identity of the suspect but be unable to prove his guilt beyond reasonable doubt by evidence admissible in court.

The U.S. Supreme Court has construed the Constitution to regulate many phases of police investigation. With many important qualifications, the police may not detain people on the street for investigation without some objective evidence of criminal activity; they may not search homes without a judicial warrant based on facts showing probable cause; they may search automobiles based on a determination of probable cause, without first obtaining a judicial warrant; and they may not arrest individual without probable cause to believe the individual has committed an offense. A suspected who is arrested may not be questioned without first receiving Miranda warnings and waiving his rights to silence and counsel, but the police may interview persons not yet arrested without following the Miranda rules (Miranda v. Arizona, 384 U.S. 436 (1966)).

These regulations are enforced almost exclusively by the judicial exclusion of evidence obtained in violation of the applicable constitutional rules. Police more interested in seizing a cargo of drugs than in prosecuting the courier may have little incentive to obtain a warrant before searching for the drugs. Police who are willing to lie about how they obtained their evidence likewise may feel little incentive to comply with the rules, so long as their testimony is likely to be accepted in court.

The police investigation thus follows a dialectical or give-and-take process, in which the investigators formulate a hypothesis about the identity of the offender and collect evidence tending to confirm that hypothesis until some new item of information surfaces to exonerate the suspect. It is hard to imagine the process operating any other way, because without some sense of the potential perpetrators' identities there would be no way to distinguish evidence from completely irrelevant facts. The police do not have the resources to conduct every investigation by a process of elimination in which they begin by establishing the alibi of every person in town. Yet the choice of suspects influences the evidence collected; if the police focus on Smith as the perpetrator, Jones will not be made to stand in a lineup.

"Realistic" fiction of the police-procedural variety, whether in print or on film, is not far wide of the mark in capturing the basic tenor of this process. But police fiction grossly overstates the epistemic power of the investigatory process. The fictional police always get their man. In real life, only about 20 percent of all reported crimes are cleared by an arrest.

Observers have always known that not all arrested persons are in fact guilty, but experience with DNA testing indicates that the investigatory process is more prone to false positives than many believed. Nationwide about a quarter of the conclusive DNA tests run at the request of the police exonerate the suspect. That is good news for the innocent (and bad news for the guilty) in cases where physical evidence permits a test. But it is not an encouraging sign about the frequency with which the police investigation identifies the wrong individual as the offender in the large majority of cases in which physical evidence does not permit scientific tests of identity.

In a world in which most crimes are not reported and only about one-fifth of the reported crimes result in an arrest, it is obvious that law enforcement officials must make difficult decisions about how to allocate their scarce resources. Patrol officers must be assigned to neighborhoods. Detectives and undercover operatives must be assigned to certain types of offenses. Should undercover officers be devoted to enforcing the drug laws or the prostitution laws? How heavily should the police concentrate patrol efforts in a high-crime neighborhood? Given too few officers, the residents (generally poor and often disproportionately racial minorities) may be unfairly denied police protection. Given too many police, there may be either the perception or the reality of discriminatory over-enforcement.

The model of a police-dominated investigation followed by adjudication in court must be modified to include those situations in which the investigation is run primarily by prosecutors. Prosecutorial investigations usually involve either "white collar" crime of an economic or political nature, or organized crime of the narcotics, gambling, and loan-sharking variety. In the white-collar context prosecutors will not need much assistance from the armed police and will ordinarily interview witnesses and then take sworn testimony before an investigatory grand jury prior to filing charges. In the organized-crime case, prosecutors need to work closely with the police or federal agents. The prosecutors support the officers' applications for warrants for electronic surveillance and negotiate immunity for informants, while the officers recruit or plant informants and execute the searches and arrests.

The adjudicatory stage

In the United States the adjudicatory process varies considerably from one jurisdiction to another, although the process throughout the country is highly similar. Most cases originate with an arrest by the police. The Supreme Court has held that the Constitution requires a prompt judicial determination of probable cause to believe that the arrestee has committed an offense. If that judicial probable cause determination was not made prior to arrest by the issuance of a warrant or the return of an indictment by a grand jury, the arrestee must be brought before a judicial officer for a determination of probable cause. Although the time frame prior to this first appearance is not rigidly defined, the Court has recognized a presumption that detention without judicial authorization that lasts longer than forty-eight hours is unconstitutional.

The probable cause hearing need not be more elaborate than the process of issuing an arrest warrant. There does not need to be any formal charge filed at this point, and the Supreme Court has held that the right to counsel does not arise until a charge is filed, whether by indictment, information, or complaint. Nonetheless common practice is to perform several functions at the first appearance in court if the court finds that probable cause indeed exists. Bail or other conditions of pretrial release may be set, counsel for the indigent may be appointed, and a date for further proceedings may be set.

The period between arrest and presentment in court offers the police the opportunity to interrogate the suspect under the Miranda rules. Once the suspect is represented by counsel, it is highly unlikely that the suspect will volunteer information, and any questioning by the police after the right to counsel has attached is unconstitutional. The Miranda right to counsel is not the Sixth Amendment right to counsel at trial, but a right derived from the Fifth Amendment privilege against self-incrimination. If the adjudicatory process were understood to begin with arrest, there would be no period of time in which the suspect was in custody but unprotected by the Sixth Amendment right to counsel at trial. The Supreme Court in Miranda accepted the proposition that counsel may be waived without an appearance in Court or consultation with counsel for purposes of interrogation, but has never intimated that such a waiver of the right to counsel at trial would be valid.

After the arrest and a judicial determination of probable cause, the next step in the process is the selection of a charge by the prosecutor. Prosecutors enjoy extremely wide discretion in selecting charges. Consider, for example, a suspect who fired a gun at another man. This might be dismissed as no crime because the suspect was acting in self-defense (or because the prosecutor concludes that although the defendant was not acting in self-defense a jury might conclude otherwise). At the other end of the continuum the case might be charged out as attempted murder or aggravated assault. In between it might be charged out as illegal possession or discharge of a firearm, or a simple assault. If the suspect has prior convictions the prosecutor may but need not add a charge under a recidivism statute such as the three strikes laws. Thus prosecutors typically have discretion to expose the suspect to a range of liability extending from zero to a substantial term of years.

Prosecutors decline to proceed in a substantial percentage of cases. In some cases the police themselves never expected a prosecution and made the arrest solely for immediate social control purposes. For example, the police might arrest one or both of the drunks involved in a brawl simply to separate them and prevent further violence, or to prevent one of the inebriates from passing out outdoors on a cold night. In other cases the police might hope for an eventual conviction but the prosecutor may decide the evidence is unlikely to persuade a jury.

Often the prosecutor will agree to drop the criminal charges if the defendant will undertake some alternative program to prevent a recurrence of the offense. The prosecutor may agree with a defendant charged with an offense involving or induced by narcotics to abandon the criminal charge provided the suspect enters a drug treatment program. These so-called diversion arrangements are quite common, and there is great variety in the types of programs to which persons might be diverted from the criminal justice system.

Juveniles make up a substantial percentage of the population arrested. All U.S. jurisdictions have by statute created specialized juvenile courts, which deal not only with juvenile behavior that would constitute a criminal offense if committed by an adult (delinquency cases), but also with behavior that is legal for adults but not for juveniles, such as drinking alcohol (status offenses). The juvenile court often also has jurisdiction over child welfare cases. The applicable statutes typically permit juveniles suspected of serious felonies to be transferred to the general criminal justice system and tried as adults.

Although the courts have not applied all the procedural protections of the adult system to the juvenile system, the juvenile court system includes most of the same phases (investigation, accusation, presentment, bail, accusation, discovery, plea bargaining, motions, trial, etc.) as the adult system. The Supreme Court has not yet required trial by jury in juvenile cases, but the issue may fairly be regarded as open for consideration at some future time.

In jurisdictions that do not require grand jury indictment the prosecutor may unilaterally file an information accusing the defendant of the crime or crimes the prosecutor has chosen to pursue. About half the states and the federal government require grand jury indictment in felony cases. Whether the charging instrument takes the form of an indictment or an information, the basic purpose of the accusation is to enable the accused to prepare a defense to present at a subsequent trial.

The grand jury usually consists of twenty-three citizens who review cases presented by the prosecutor. Although the grand jurors have the power to refuse to indict, in practice the grand jury very rarely rejects a prosecutor's request for an indictment.

If the case originates with an indictment filed before arrest, the process will differ somewhat. The accused will be either arrested or will surrender to face the charge. At that point the process will continue just as in cases that begin with arrest, with the important qualification that the accused's Sixth Amendment right to counsel has attached even before the arrest. Absent a valid waiver of that right to counsel, so-called critical stages of the process require the presence of defense counsel. Critical stages include interrogation, lineups, and court appearances. They do not include photo identification sessions, the interviewing of witnesses other than the defendant, or the gathering or testing of physical evidence.

Once the charge selected by the prosecutor is filed in court, whether by indictment, information, or complaint, the next step in the process is an arraignment at which the defendant appears in court to hear the charges and enter a plea. If the defendant has not yet retained or been appointed counsel, counsel must be appointed, retained, or waived in open court before entering a plea. Likewise if bail has not been previously set or denied, a pretrial release decision will be made at this point.

If the defendant and the prosecution do not reach a plea agreement and the case goes to trial, there typically will be a discovery period, an opportunity for pretrial motions, a preliminary hearing, and a trial. The discovery process has become more extensive but still falls far short of the discovery permitted on the civil side. The principal reasons for the difference are fears that criminal defendants are more likely than civil litigants to harass or intimidate witnesses and the belief that the defendant's right not to testify unfairly turns criminal discovery into a one-way street.

The Supreme Court's Brady doctrine requires the prosecution to turn over to the defense all material exculpatory evidence upon a timely request (Brady v. Maryland, 373 U.S. 83 (1963)). Court rules typically require both sides to disclose the names and addresses of the witnesses they intend to call, thus permitting the opposing side to interview the witnesses before trial. In many jurisdictions the defense must give advance notice of the intention to rely on certain defenses, such as insanity, alibi, entrapment, or consent.

The theory of the adversary system is that justice is most likely to emerge from a contest in which the two sides prepare their own cases. In practice the theory is compromised by limited resources. A majority of criminal defendants are represented by publicly provided counsel. There is widespread agreement that the funds provided for indigent defense do not permit anything like an independent investigation by defense counsel in every case. Caseload pressures, often in the range of hundreds of felony files per lawyer per year, require defense counsel to select a few cases for trial while arranging the most favorable plea agreement possible for the rest.

Pretrial motions can be made for a wide variety of purposes, including but not limited to: (1) suppression of otherwise admissible evidence because the evidence was improperly obtained; (2) change of venue; (3) admission or exclusion of evidence; (4) compelling discovery withheld by the other side; (5) determining competence to stand trial; and (6) court appointment of expert witnesses for an indigent defendant. Motions are decided by the court without a jury. If a ruling on a motion turns on disputed facts, the court will hold an evidentiary hearing to determine the facts. Pretrial rulings are ordinarily not appealable by the defense until after a conviction, but are commonly allowed for the prosecution, as otherwise the double-jeopardy principle might prevent a retrial even though the government lost the trial because the trial court erroneously ruled on a motion.

Like rulings on motions, the preliminary hearing is conducted by the court without a jury. In theory the preliminary hearing is designed both as a final test of probable cause for a trial and as a discovery tool. Actual practice varies a great deal. In some cases prosecutors introduce their full case, both to encourage a plea from the defense and to preserve the testimony of wavering witnesses. In other cases the prosecutor may put on the minimum needed to go forward to trial out of fear of giving the defense an opportunity for discovery.

The criminal trial

If the defendant demands trial by jury, the trial process begins with the selection of the jury. Potential jurors will be summoned to court in a venire. They will be questioned either by the court, by counsel, or both. Potential jurors will be excused for cause if they have an association with one side or the other or if they in some way manifest an inability to act impartially. Both sides will be given a limited number of peremptory challenges that may be exercised without giving a reason. The defense is usually allowed more peremptory challenges than the government. If either side uses peremptory challenges to excuse potential jurors in a way that might be perceived as racially motivated, the Supreme Court's Batson decision requires the trial court to demand a race-neutral explanation of the peremptory challenges (Batson v. Kentucky, 476 U.S. 79 (1986); Georgia v. McCollum, 502 U.S. 1056 (1992)).

Once the jury is empaneled the prosecuting attorney and defense counsel have the opportunity to make an opening statement. Then the prosecution begins its case by calling witnesses. Their testimony is subject to cross-examination by the defense. At the close of the government's case the defense may move for a directed verdict of acquittal if the government's evidence failed to enable reasonable jurors to find the elements of the charged offense beyond a reasonable doubt.

If the government has succeeded in making out a prima facie case, the defense has the opportunity to put on its case. The defendant may not be called to the stand by the prosecution, and may refuse to testify in his own defense. Jurors are likely to conclude that the defendant who refuses to testify is hiding something, but if the defendant testifies his prior convictions are admissible to impeach the credibility of his testimony. If the defense puts on a case, the prosecution will have an opportunity to call witnesses in a rebuttal case.

Once both sides have rested their cases, the court will instruct the jurors on the legal issues in the case and the two sides will have the opportunity for closing arguments. There is no fixed pattern as to whether the instructions follow the arguments of counsel or vice versa. During the argument stage the prosecution usually has the first argument, the defense the second, and prosecution is given a rebuttal argument to close the case.

The Supreme Court has upheld juries composed of six rather than twelve jurors. Most jurisdictions, however, continue to employs juries of twelve. The Court has also upheld nonunanimous jury verdicts of eleven to one, ten to two, or nine to three to convict, but many jurisdictions continue to require unanimity for a conviction. Although the Supreme Court has never recognized a constitutional right to an appeal, all jurisdictions allow at least one appeal as a right of a felony conviction. The double jeopardy clause prevents the government from appealing acquittals.

The double jeopardy clause does not prohibit a second prosecution following acquittal for an offense under the laws of a different sovereign. Thus an acquittal on federal charges does not bar a subsequent prosecution under state law, and an acquittal on state charges does not bar a subsequent prosecution under federal law.

Sentencing

Upon conviction, whether by plea or after a trial, the trial court imposes the sentence upon the offender. Many states still follow the traditional practice that allows the trial judge discretion to impose any sentence authorized by the statute, from the minimum to the maximum. The court's decision is usually informed by a presentence report prepared by agents of the correctional system. Both the government and the defense may recommend a sentence. Although legally the court is not required to accept a prosecutor's recommendation for a reduced sentence, judges know that disregarding such recommendations could impair the incentives for defendants to plead guilty. Purely discretionary sentencing systems have been widely criticized for treating defendants convicted of similar offenses more or less seriously based on arbitrary factors such as the ideology of the judge.

In 1984 Congress adopted legislation creating the Federal Sentencing Commission and authorizing the commission to promulgate sentencing guidelines for federal courts. The guidelines promulgated by the commission specify a recommended sentence based on the seriousness of the offense and the defendant's prior record. Factors such as post-crime cooperation with the prosecution may reduce the recommended sentence, and other factors such as the use of a weapon during the offense may increase the recommended sentence. The sentencing judge is authorized to depart from the recommended sentence, but must give reasons for doing so, and departures may be challenged on appeal by both the government and the defense. The federal guidelines have been criticized, especially by federal district judges, as unduly rigid.

Many states have taken a middle position between the traditional discretionary system and the more rigid federal guidelines by adopting nonbinding sentencing guidelines. These system vary widely, but their common aim is to reduce sentencing disparities without forcing sentencing judges into a result that may not fit the facts of the particular case.

Many but not all American jurisdictions authorize the death penalty for murder. The Supreme Court has held that capital punishment systems that give juries unguided discretion to impose the death sentence violate the Eighth Amendment's prohibition of cruel and unusual punishments. The Court also has struck down mandatory death penalty statutes for such crimes as the murder of a police officer or a murder committed by a prisoner serving a life sentence. The Court has held that the death penalty is inherently unconstitutional for the crime of raping an adult.

With respect to murder, the Court has upheld statutory schemes that require the sentencing jury to find the presence of statutorily defined aggravating factors, and to balance the aggravating factors against any mitigating factors that may be present in each case before imposing the death sentence. Typical death penalty statutes provide for a bifurcated trial. The sentencing issue will not be considered until the issue of guilt and innocence is tried. If the jury convicts at the guilt phase, the trial will enter a second, penalty phase, during which both sides may offer evidence that was not introduced during the guilt phase.

Whether the Supreme Court really has succeeded in reducing arbitrary decisions about capital punishment is open to question. Juries cannot impose the death penalty unless prosecutors ask for it, and the Court has not imposed any limitations on prosecutorial discretion to seek the death penalty. Moreover, by allowing defendants to introduce evidence of any relevant mitigating circumstance, whether authorized by statute or not, the Court effectively has tolerated very wide jury discretion in death penalty cases. Although some Justices of the Supreme Court have taken the view that the death penalty is inherently cruel and unusual, no Justice on the Court in early 2001 professes that opinion.

A convicted defendant who has exhausted the appeals process may still challenge the conviction by filing a petition for habeas corpus. Habeas corpus is an original civil action challenging the legality of detention. The criminal defendant becomes the civil plaintiff, and the warden or jailer becomes the civil defendant. The Supreme Court has taken an increasingly narrow view of when state prisoners may obtain habeas corpus review in federal court, and in 1996 Congress adopted legislation codifying and in some respects tightening the limitations recognized by the Court.

Plea bargaining

Relatively few criminal cases go to trial, fewer still are appealed, and fewer yet become the subject of collateral review. Prosecutors refuse to file charges or dismiss charges in a large number of cases. In the cases prosecutors choose to pursue, the majority end not in trial by jury but by a plea of guilty or a successful motion to dismiss. Statistics vary across jurisdictions, but it would not be uncommon for half of all arrests to result either in no charges or in charges that are later dismissed, for 80 percent of the cases that are not dismissed to end in guilty pleas, and for the remaining cases to be tried. The government typically wins a significant but not overwhelming majority of criminal trials; a 70 percent conviction rate at trial would not be unusual.

These statistics reflect the ubiquity of plea bargaining. Plea bargaining involves the prosecutor trading a reduction in the seriousness of the charges or the length of the recommended sentence for a waiver of the right to trial and a plea of guilty to the reduced charges. Both sides usually have good reasons for settlement. In a case in which the evidence of guilt is overwhelming, the prosecution can avoid the expense and delay of a trial by offering modest concessions to the defendant. When the evidence is less clearcut the government can avoid the risk of an acquittal by agreeing to a plea to a reduced charge. Because the substantive criminal law authorizes a wide range of charges and sentences for typical criminal conduct, and because the procedural law allows prosecutors wide discretion in selecting charges, the prosecution can almost always give the defense a substantial incentive to plead guilty.

A defendant who is sure to be convicted at trial is likely to take any concessions he can get. The weaker the government's case the more concessions the government will be willing to offer. For the most part the trial process comes into play when the two sides disagree about the likely outcome of a trial. Thus it is not surprising to see that in cases that are not dismissed a very large percentage end in guilty pleas but that the results of trials are far less one-sided. If trials resulted in convictions in 90 percent of cases more defendants would accept even minor concessions in exchange for a plea. If 90 percent of trials resulted in acquittals prosecutors would offer better deals or dismiss more cases unilaterally.

Plea bargaining is problematic for at least three reasons. First, because the substantive criminal law typically authorizes draconian penalties (the three strikes laws, for instance) the prosecution has the power to present defendants with unconscionable pressures. Imagine a defendant with two prior convictions charged with petty theft. The prosecutor offers to drop a three-strikes charge if the defendant pleads guilty. The defendant must now choose between the risk of life in prison if convicted at a trial or a very short term or a suspended sentence following a guilty plea. Although the Supreme Court has accepted such pleas as voluntary, they have every appearance of being practically coerced.

Second, the prosecution has the incentive to maximize the benefit of pleading guilty in the weakest cases. The more likely an acquittal at trial the more attractive a guilty plea is to the prosecution. Given caseload pressures prosecutors may simply dismiss the weakest cases. But in a borderline case that does go forward the prosecution may very well threaten the most serious consequences to those defendants who may very well be innocent.

Third, the indigent defense lawyers who represent most felony defendants do not have the resources to independently investigate every case. Prosecutors face acute resource limitations as well, but generally speaking the government can afford to go to trial in more cases than the defense. Moreover, the defense frequently must decide which cases to contest based on the evidence collected by the police rather than on the basis of an independent investigation. Despite these troubling dimensions, plea bargaining is the central feature of the adjudicatory process.

Racial aspects of the criminal justice process

The justice system undeniably arrests, prosecutes, and punishes African Americans in numbers out of proportion to their representation in the population. Some of the statistics are shocking. For example, it is not uncommon for there to be fewer young black men in a state's institutions of higher learning than are in prison, on probation or parole, or awaiting trial on a criminal charge. The percentage of the prison population that is African American is roughly four times the percentage of African Americans in the overall population.

To the extent this disparity reflects higher rates of criminal behavior among blacks the disparity is rational. Males are arrested, prosecuted, and punished out of proportion to their representation in the population, but no one regards this disparity as unjust. Since most crime is intraracial, the failure to prosecute black offenders will typically fail to protect black victims.

For some crimes (homicide, for example), the African American offense rate is dramatically higher than the rate among Caucasians. Yet even when social science evidence indicates that black and white offense rates are very similar, as with usage rates for marijuana and cocaine, blacks are far more likely to be arrested and prosecuted than whites. The cause of such racial disparities is debatable. What seems clear is that the reverse situation—one in which whites were disproportionately selected for arrest and prosecution despite similar offense rates—would not be tolerated politically.

The relationship between substance and procedure

Plea bargaining also offers an interesting perspective on the criminal justice process as a whole. The Constitution as construed by the Supreme Court places significant limits on police investigations and secures every defendant the right to a rigorous trial. But the limits on the police and the right to trial may be waived by defendants, and police and prosecutors have virtually limitless discretion in selecting targets for investigation and prosecution. The key features of the system are not due process and equal protection, but waiver and discretion.

If defendants could not waive their rights, the system would be required by the Constitution to devote much greater resources to the trial process. If prosecutors did not have discretion to drop and add charges, the state would be disabled from giving defendants an incentive to waive their rights. Because the courts have imposed extensive constitutional requirements on criminal procedure, but have left the substantive criminal law virtually unregulated, discretion and waiver have invited legislatures to authorize extremely harsh sentences. Legislature who adopt harsh penalties know that very few defendants will receive the maximums authorized by statute, because prosecutors have discretion not to bring every charge supported by the evidence. Long potential maximum sentences in turn give the prosecutor powerful leverage in plea negotiations.

Waiver and discretion are both perfectly defensible in theory. In practice they have given us not one criminal justice process, but two. In one system the accused really receives the protections promised by the Constitution. This system is reserved for those who know their legal rights and can afford to assert them. As discretion is generally not exercised to target such individuals anyway, this system only rarely comes into play. The other system tolerates pressures that in fact induce most suspects to waive their rights. In this, the everyday system, defense counsel enters the process only after the police have completed the investigation. Once counsel does enter the picture, defense lawyers cooperate with prosecutors in negotiating an acceptable plea in an environment in which the prosecution largely determines the terms of trade. The right to trial operates primarily as a bargaining chip the defense can play to counter the prosecution's ability to unilaterally determine the severity of the charges.

An honest view of the process does not necessarily entail cynicism. If defendants could not waive their rights it would not be long before those rights were substantially curtailed. If prosecutors were compelled to bring every charge supported by the evidence legislatures would be forced to modify the substantive criminal law or to ante up billions of dollars for prisons. The present arrangement permits society to retain a strong set of procedural safeguards that might protect sophisticated defendants against politically motivated prosecutions. Waiver keeps the cost of these safeguards, in terms of crime control, to a practical minimum.

The role played by wealth in determining the type of justice accorded to different defendants is certainly troubling, but so long as individuals have the right to use their own money to defend themselves against criminal charges it is hard to see how that role could be eliminated. Society could do much more to improve the process and reduce the disparity between rich and poor by raising the floor beneath which justice for the poor is not allowed to fall. This would require the commitment of additional resources, especially but by no means exclusively for indigent defense. Thus far the political will for such reforms has not developed.

Donald Dripps

See also Adversary System; Appeal; Arraignment; Burden of Proof; Criminal Procedure: Constitutional Aspects; Discovery; Federal Criminal Jurisdiction; Grand Jury; Guilty Plea: Accepting the Plea; Guilty Plea: Plea Bargaining; Habeas Corpus; Informal Disposition; Jury: Legal Aspects; Preliminary Hearing; Sentencing: Allocation of Authority; Sentencing: Alternatives; Sentencing: Disparity; Sentencing: Guidelines; Sentencing: Mandatory and Mandatory Minimum Sentences; Sentencing: Presentence Report; Sentencing: Procedural Protection; Trial, Criminal.

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