The American death penalty is often described as anomalous, distinctive, or exceptional in the sense that at present, in the early years of the twenty-first century, the United States is the sole Western democracy that retains the practice of capital punishment. However, a second aspect of American exceptionalism in this context has largely escaped notice. The United States has chosen not merely to retain the death penalty while its peer nations have abolished it; rather, the United States has embarked on nearly 40 years (since 1976) of intensive, top-down, constitutional regulation of the practice by the federal courts, led by the U.S. Supreme Court. The choice of regulation in the place of mere retention has produced a complex web of interactions among the federal judiciary and state and local legislatures, executive officials, courts, and of course activists on both sides of the issue and the general court of public opinion. Close study of these interactions generates a compelling and dynamic story that sheds a great deal of light on the death penalty itself—on its functions and meanings in American society and politics, on its history, and on its future.

Thirty-two-year-old Eric Rinehart was a former police officer and member of the Indiana National Guard. He was going through his second divorce, he had custody of his seven-year-old son, and he had no criminal record. During this time, perhaps against his better judgment, he began two sexual relationships with young women, aged sixteen and seventeen. Although the young women were much younger in age, both of Rinehart’s sexual relationships were consensual and entirely legal. Under Indiana state law, the legal age of consent for sexual intercourse is sixteen.

During the course of his relationship with one of the young women, Rinehart lent her his digital camera after she suggested, based on her past experiences with other partners, that she use it to take provocative photographs of herself. When she returned the camera, Rinehart found pictures of the young woman engaged in “sexually explicit conduct.” Following this event, Rinehart photographed the same young woman engaged in similar sexual activities. In addition, Rinehart created “short videos of himself and [the second young woman] engaged in sexual intercourse.” All the photos and videos were taken with the knowledge and consent of his sexual partners. All of the images were uploaded onto Rinehart’s home computer, but none were distributed to a third party, nor was there evidence that Rinehart intended to do so.

As implemented in the United States, the adversarial system is a significant cause of wrongful convictions, wrongful acquittals, and “wrongful” sentences. Empirical evidence suggests that a hybrid inquisitorial regime can reduce these erroneous results. This Article proposes that the American trial process incorporate three inquisitorial mechanisms—judicial control over the adjudication process, nonadversarial treatment of experts, and required unsworn testimony by the defendant—and defends the proposal against constitutional and practical challenges. While other scholars have suggested borrowing from overseas, these three proposals have yet to be presented as a package. Together they might measurably enhance the accuracy of the American criminal justice system.

The enormous value of Dan Simon’s In Doubt lies not just in its nuanced exploration of the challenges to accurate criminal factfinding, but also in its challenge to us to rethink trials themselves. Even as we endeavor to give criminal defendants the means and license to raise reasonable doubts, we need to think more about when and how those doubts can be allayed. Just because most jurisdictions have not come out of the first round of play—the one in which defendants get the tools to poke holes in the cases against them—does not mean it is premature to consider what should happen in the second period: What tools should we give jurors to assess the alleged holes—the “reasonableness” of an alleged doubt? And how can the prosecution try to mend them? These questions do not simply go to the fairness and, to use Simon’s term, the “diagnosticity of the trial.” They also, as I hope to show here, go to the role that criminal trials will play in a world with so few of them.

The shortcomings of forensic evidence in the criminal justice system are now well known. But most scholarly attention has concentrated on “first-generation” forensic techniques such as hair or pattern analysis, bite marks, firearms, and ballistics. Moreover, most of the attention has centered on the investigative process, specifically the collection and analysis of evidence. This Essay turns the critical lens on scientific evidence in a different direction. It focuses on “second-generation” technologies—such as location tracking, biometrics, digital forensics, and other database-driven techniques, and it scrutinizes the adjudicative system—the “bail to jail” stream—rather than the investigative process. Ultimately, this Essay argues that almost every aspect of the adversarial process, as currently conceived, is ill-suited to ensuring the integrity of high-tech evidence. Specifically, the adversarial model demands individualized rather than collective inquiries, embraces secrecy rather than transparency, and privileges viva voce evidence over other forms of fact-gathering. Furthermore, it heavily depends upon the skill of counsel and in-court confrontation rather than out-of-court oversight and structural reform to address problems related to evidentiary integrity, and adopts rigid rules of finality grounded in part on an assumption that proof is always inconclusive. This Essay concludes that the eighteenth-century model of justice may be ill-suited to twenty-first-century evidence, and offers recommendations for a more reliable factfinding system.

The story has become all too familiar. Facing felony charges, an indigent defendant is appointed a public defender to represent him. Working under a crushing caseload of 500 felonies per year, the public defender has around an hour to dispose of the case. He meets with the defendant once, quickly advises him to accept the plea deal offered by the prosecutor, and moves on to the next defendant. No investigation; no interviewing potential witnesses—just take the plea.

The case described above was appealed to the Washington State Supreme Court in 2010, and involved the prosecution of a boy who was a mere twelve-years old. The boy’s case, combined with pressure from state defense organizations and local media, convinced the state supreme court to take action in 2012 and enact mandatory performance standards, including strict caseload limits, that all defense attorneys in Washington must comply with beginning September 2013. The standards were adopted after a long struggle with underfunding and overwhelming caseloads among Washington public defender offices, a problem not unique to that state.

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.

Criminal law is at a crossroad. With 2.3 million Americans in prison today, one of the biggest challenges for the criminal justice system is dealing with postconviction claims by prisoners. Most of the focus of scholarship for criminal law is on preconviction issues. Many of the participants in the criminal justice system, including judges, prosecutors, and defense lawyers, view a criminal case as “final” once the defendant has been sentenced. Yet, it is increasingly clear that the trial, sentencing, and even appeal are just the first act in the long production of a criminal case. Defendants do not disappear once they are sentenced. The second half of their case is still to come as collateral attacks work their way through the criminal justice system.

During the 1960s, the Warren Court’s “criminal procedure revolution” imposed constitutional limits on criminal procedure in the states, limits that persist in some form to this day. During the 1980s, criminal justice in the United States took a “punitive turn” that resulted in the largest per capita prison population on the planet.[3] In this Article, I consider the claim, advanced by the late Professor William J. Stuntz, that a sinister causal relationship inhabits this striking paradox.

Professor Stuntz made many superb contributions to the scholarly literature. For me, and I suspect for many, his greatest contribution was to expose the always complicated, but seemingly always perverse, relationships between the procedural and the substantive sides of criminal law. One can discern two quite distinct views of the relationship in Stuntz’s work.

Michelle (Robert) Kosilek first exhibited signs of gender identity disorder (“GID”) at the tender age of three years old. An orphan during most of her early childhood, Kosilek would sneak over to the female side of the Catholic orphanage where she lived so that she could “wear girls’ clothing and play with girls”—behaviors for which she received severe physical punishment. Undeterred, Kosilek continued to exhibit signs of GID throughout her childhood and adolescence; she also continued to be abused. As one of her psychiatrist reports stated, “At age 13, [Kosilek] developed what was most likely normal transient gynecomastia. She commented to her mother [who had since removed Kosilek from the orphanage], ‘See? I really am a girl.’ Her stepfather overheard the remark and assaulted her with a broken beer bottle.” After this incident, Kosilek began running away; she left home permanently at age fifteen.