The Modern Criminal Justice System is Anathema to Principles of Constitutionally Limited Government
--
On this date in 1787, delegates to the Constitutional Convention in signed the United States Constitution. So today, we celebrate “Constitution Day” in honor of what Frederick Douglass called a “glorious liberty document.” What better day, then, to discuss how overcriminalization and mandatory minimum sentences offend the principles of liberty and limited government that inspired the U.S. Constitution?
More than any other goal, the framers of the U.S. Constitution sought to prevent centralized power. James Madison explained this in Federalist 47:
The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.
The fundamental political problem Madison and the other framers aimed to solve was how to design a government that can maintain public order without devolving into absolutism. Madison recognized that the first line of defense against the tyranny of centralized power is democracy itself. (“A dependence on the people is, no doubt, the primary control on the government.”) However, the vote alone is insufficient. Instead, Madison argued, “experience has taught mankind the necessity of auxiliary precautions.”
By “auxiliary precautions,” Madison meant that the structures of government must be arranged such that no individual actor can plausibly hope to attain unlimited, unchecked power. In practice, this meant separating power among distinct branches of government, and giving each branch a check on the power of the others. (It meant further dividing power between the federal government and the states.)
It’s hard to overstate how important separation of powers and checks and balances were to the framers of the U.S. Constitution. Madison went so far as to argue in Federalist 51 that the “separate and distinct exercise of the different powers of government” is “essential to the preservation of liberty.” In a meaningful sense, the entire American experiment could reasonably be thought of as an attempt to prevent tyranny through structural impediments to centralized power.
In the framers’ vision, power would be separated among co-equal branches, and the exercise of power by any individual branch would be “checked” by the exercise of power by the others. In practice, this meant what everyone learns in high school civics class: the legislative branch would write the laws, the executive would enforce them, and the judiciary would interpret laws and ensure due process in their enforcement. The result would be a carefully calibrated system in which any encroachment by one branch would be stopped by the others.
It’s easy to see how Madison’s framework should work in the modern criminal justice system. The legislative branch would write laws that clearly define behaviors the state will punish with criminal sanctions; the executive branch would apprehend and prosecute those who violate those laws; and the judiciary would protect the rights of the accused and impose appropriate punishments. Under the Madisonian framework, each branch has important power, but none has so much that it can abuse that power and threaten citizens’ liberty.
Unfortunately, the modern criminal justice system does not reflect this Madisonian ideal. Far from it. As William J. Stuntz showed in the best law review article ever written, today’s criminal justice system more clsoely resembles the opposite of what the framers intended.
Today, federal and state criminal codes overflow with overbroad laws that leave every person at risk of prosecution for some crime or another. The obscene number of crimes on the books, and the scope of behavior they cover, have created a situation in which, “There is no one in the United States over the age of 18 who cannot be indicted for some federal crime.” Resources to enforce these laws are necessarily scarce, which means they cannot all be enforced. As a result, prosecutors are empowered with discretion over charging decisions, i.e., prosecutors are trusted with power to decide to whom the law will apply, and which laws will apply to them.
The modern criminal justice system vests in prosecutors so much power over which crimes to enforce, that Stuntz argues prosecutors, not legislators, are “the criminal justice system’s real lawmakers.” Stuntz explains:
As criminal law expands, both lawmaking and adjudication pass into the hands of police and prosecutors; law enforcers, not the law, determine who goes to prison and for how long. The end point of this progression is clear: criminal codes that cover everything and decide nothing, that serve only to delegate power to district attorneys’ offices and police departments.
Moreover, legislatures often intentionally enact overbroad criminal statutes, or “laws that are both more broad than they think is appropriate and more harsh than they think is just,” as University of North Carolina law professor Carissa Byrne Hessick has described them. Hessick, echoing Stuntz, argues that in the modern criminal justice system, it is prosecutors, not legislators, who “decide which conduct to treat as illegal and which to treat as permissible.” In an important sense, then, today it is the executive branch, not the legislative branch, that defines the criminal law.
Mandatory minimum sentencing laws make the transfer of criminal lawmaking from legislatures to the executive even worse by transferring punishment authority from the judiciary to the executive.
As retired federal judge Paul Cassell and Arizona State University Law Professor Erik Luna have written, “As a matter of history and experience, an autonomous court system under the guidance of impartial jurists has proven to be an indispensable aspect of American constitutional democracy.” And because trial judges are the only disinterested experienced decision-makers in a courtroom, “the trial court’s central functions have traditionally included dispositive criminal justice issues that demand evenhanded judgment, among them, the appropriate sentence in particular cases.”
Over time, however, mutually reinforcing political incentives have warped the traditional, Madisonian framework. As Stuntz put it,
Prosecutors are better off when criminal law is broad than when it is narrow. Legislators are better off when prosecutors are better off. . . . Legislators gain when they write criminal statutes in ways that benefit prosecutors. Prosecutors gain from statutes that enable them more easily to induce guilty pleas.
The result is a criminal code packed with thousands of offenses, many of which yield obscenely long sentences. By choosing which offense or offenses to charge (e.g., the one with the mandatory minimum or the one without it, multiple charges from the same conduct or just one), prosecutors have enormous leverage in plea negotiations. Given the enormous risk of losing at trial — mandatory sentences imposed after a trial are often orders of magnitude longer than those offered in plea negotiations — the power to charge is often also the power to convict. And the power to convict is the power to sentence. As a result, the judiciary’s traditional power over sentencing — where it belongs in a proper Madisonian system — has been all but transferred to the executive branch.
The modern criminal justice system is a far cry from the Madisonian ideal of separation of powers and checks and balances among three co-equal branches. Rather, today, an incalculably broad criminal code has transferred practical authority over the criminal law from legislatures to the executive, and mandatory minimums have transferred practical authority over punishment from the judiciary to the executive. The executive branch now has de facto control over the lives and liberty of the citizenry.
At this point an apologist for unchecked prosecutorial power might object. “Prosecutors are good people, and we can trust them to do the right thing,” he or she might argue. Under that theory, centralized power isn’t dangerous, or even something to be avoided. Perhaps that’s true, but that position is at odds with Madison’s, and also at odds with the entire political philosophy that inspired the U.S. Constitution.
To Madison and the framers, the problem with centralized power is that humans cannot be trusted to exercise that power prudently or responsibly. Madison makes this point in a famous passage from Federalist 51:
But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.
Under a Madisonian framework, laws should not be written under the assumption that the people charged with enforcing them will exercise their power in restrained, prudent ways, or with an eye toward protecting the citizens’ liberty. Rather, the default assumption should always be that those with some power will always seek more, and that power will be exercised in ways that benefit the powerful, and always at the expense of individual liberty. When writing sentencing laws, for example, Madison would have legislators assume those laws will be enforced by Angela Corey. For Madison, the rule with respect to the exercise of power isn’t Reagan’s “Trust, but verify.” It’s “Never trust anyone.”
If Madison is right about the exercise of political power — an assumption that rests at the core of the U.S. Constitution itself — then the basic structure of government must sufficiently divide power among the relevant actors if individual liberty is to be protected, and if tyranny is to be held in check.
Today’s criminal justice system is anathema to the principles that inspired the U.S. Constitution. Securing the blessings of liberty for ourselves and our posterity will require reversing with all haste the trend toward unchecked executive power over the criminal law. That means, at a minimum, pruning out of control criminal codes, and restoring to the judiciary its traditional, Madisonian sentencing authority.
Those who rightfully celebrate the U.S. Constitution today should take a moment to reflect on the principles that inspired it. Then they should ask themselves whether the modern criminal justice system reflects those principles. The only honest answer is no, and it isn’t even close. Once that trivially obvious point is recognized, everyone has a choice. They can either set politics aside and commit to taking the steps necessary to lead us back to the Constitution, or they can abandon their ostensible commitment to it.
Which will you choose?
