Roughy half the Bill of Rights is devoted to criminal procedure and most of that is about jury trials. The Constitution prescribes a system that's designed both to err in favor of Type I errors (false acquittals) over Type II errors (false convictions) and ensure transparency. /1
But we've almost completely supplanted/subervted the constitutionally prescribed method of adjudicating criminal charges (jury trial) with an ad hoc, extra-constitutional procedure (plea bargaining) that's optimized for efficiency at the expense of literally every other value. /2
It's been an unmitigated disaster. In this piece, I compare the practical elimination of citizen participation in the administration of criminal justice to the effect that the loss of a keystone species like honey bees would have on the ecosystem. cato.org/policy-report/…
Plea bargaining represents a breathtaking repudiation of centuries of accumulated wisdom about how—and how not—to adjudicate criminal charges. At one time in Europe they used judicially sanctioned torture to elicit guilty pleas. chicagounbound.uchicago.edu/cgi/viewconten…
American prosecutors use the same basic approach—coercion—to elicit guilty pleas, but with less sanguinary techniques such as savage trial penalties, pretrial detention in hellscapes like Rikers, and threatening family members to exert plea leverage. lawreview.gmu.edu/print__issues/…
It's an absolute disgrace, and in my judgment utterly destroys any claim our criminal justice system has to public respect, confidence, or support. /end
Oh, and you should absolutely read @CBHessick's and @RachelBarkow's respective books—Punishment Without Trial and Prisoners of Politics—for a deeper dive. amazon.com/Punishment-Wit…

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More from @ConLawWarrior

6 Nov
Think you’re cynical enough about qualified immunity? Trust me, you’re not. Must-read from @radleybalko. I’ll screenshot key passages below. RT if you’ve had enough of QI already.
#AbolishQI
#EndQualifiedImmunity
@AbolishQI
@campaigntoendqi
washingtonpost.com/opinions/2021/…
1. Cops commit indisputable rights violation.
CA10 bends over backwards to let them off the hook. (Must’ve been another day ending in Y.)
Read 6 tweets
3 Sep
CA10: To be clear—you were specifically trained that people have a right to record you in public but you still abused this guy for recording you, and now you think you should get qualified immunity?
Cops: Uh...
CA10: Just messing with you—of COURSE you get QI. And next time too!
Read 4 tweets
17 Aug
I've seen plenty of no-brainer cert petitions in my day, but this one—from a CA10 decision granting QI to cops who were specifically trained that there's a constitutional right to record police in public that they mustn't interfere with—takes the cake. Why?supremecourt.gov/search.aspx?fi…
1. It involves one of the most important constitutional rights SCOTUS has yet to weigh in on: the ability to record police in public to prevent govt from creating false narratives about things like murdering citizens, like MPD tried to do with George Floyd.businessinsider.com/police-initial…
2. No one seriously thinks modern QI has a shred of legitimacy, and virtually everyone agrees it was invented out of whole cloth in a blatant act of judicial policymaking that's supposed to offend a certain kind of jurist (hint: rhymes w "shmoriginalist").
chicagounbound.uchicago.edu/cgi/viewconten…
Read 10 tweets
14 Aug
I know it’s trendy to dunk on the Founders these days, but their foresight was really quite remarkable. That said, something they did not and could not foresee was the rise of a massive professional law-enforcement faction with an almost pathological aversion to accountability.
If you look back to the Founding era, you’ll see that government officials could and did get sued at the drop of a hat. This was absolutely routine, and absolutely the right way to organize things. We do the opposite, and I don’t have to tell you what a disaster it has been.
That we live in an era when self-styled “originalists” judicially amend democratically enacted laws in order to make it maximally difficult for citizens to hold power-abusing government officials accountable is, to put it politely, remarkable. See, e.g., cato.org/policy-analysi…
Read 5 tweets
12 Aug
It's vitally important to have a well-functioning criminal justice system. But ours is not well-functioning, and it merits neither your confidence nor your support. Here's why:
1. Overcriminalization. As discussed in prior posts, our govt has utterly trivialized the concept of crime. Virtually all of us have committed criminal offenses, most of which do zero harm to society, should never have been enacted, and are enforced selectively and unjustly.
2. Mass adjudication. Among the most important rights in the Constitution, the criminal jury trial has been almost completely displaced by plea bargaining, which has become so coercive that it amounts to a point-and-convict form of "adjudication."
cato.org/commentary/pri…
Read 7 tweets
10 Aug
Thread: Lately, a number of normally thoughtful people on this site have been committing a version of the “if we had some ham we could have ham-and-eggs if we had some eggs” fallacy in response to concerns about increases in (some) violent crime rates.
They call enlarging they footprint of the criminal justice system—including particularly police—on the premise that this will help reduce crime, especially homicides and gun assaults. And it probably would. But at what cost? That’s a question most of these folks studiously avoid.
I don’t believe I’ve seen a single one of the “Moar police!” folks try to grapple in any serious way with just how deeply pathological, immoral, and counterproductive so much of our criminal legal system has become.
Read 8 tweets

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