From Volume 87, Number 3 (March 2014)
Federal and state law confers broad discretion on courts to administer the criminal laws, impose powerful penalties, and leave serious criminal behavior unpunished. Each time an appellate court reviews a criminal verdict, it performs an important systemic function of regulating the exercise of that power. Trial courts do the same when, for example, they admit or exclude evidence generated by government investigators. For decades, judicial decisions of this sort have been guided by case law made during the Supreme Court’s Criminal Procedure Revolution of the 1960s and 1970s. It is becoming increasingly clear, however, that the rule-bound, essentially bureaucratic regulatory regime that emerged in the 1960s does not assure accurate outcomes, especially for poor and minority criminal defendants and victims. As an additional protection, this Essay urges criminal courts to stop resisting and to embrace regulatory innovations in wide use in other domains that foster self-improvement through continuous observation and rigorous analysis of data on the system’s own results and error rates. The Supreme Court’s own penalty-default and head-counting innovations point the way forward. A certain conception of liberty or individualism—which intersected with the Criminal Procedure Revolution but has not traditionally served the interests of populations most at risk from miscarriages of criminal justice—is the main obstacle to such reforms and should be abandoned.