William Ortman (Wayne State University School of Law) has posted Second-Best Criminal Justice (Washington University Law Review, Forthcoming) on SSRN. Here is the abstract:
Criminal procedure reform can be understood as a “second-best” enterprise. The general theory of second best applies where an ingredient necessary for a “first-best” ordering is unattainable. That’s the contemporary criminal process. Our normative ideals of criminal justice require fair and frequent trials to judge guilt or innocence, but the criminal trial rate has been falling for at least a century; today it is vanishingly close to zero, and there’s no good reason to expect it to change course. That is unfortunate, but not catastrophic. What is catastrophic is how we’ve eliminated trials — by imbuing prosecutors with enough leverage to coerce guilty pleas. Excessive prosecutorial leverage is the source of criminal procedure’s deepest pathologies. This Article argues that we should — at least as a thought experiment — begrudgingly accept a negligible trial rate as a fixed constraint on criminal procedure reform. Then we can proceed to the crucial question — whether there is a less destructive way to ensure a negligible trial rate. There is: inefficiency. The road to a more just, humane, and rational criminal process could begin with making formal criminal litigation inefficient. In matters of institutional design, the general theory of the second best counsels using unseemly practices, like inefficient procedure, to offset fixed constraints, like the absence of criminal trials. If the formal process of criminal litigation could be made unreasonably expensive for both parties, both would want to settle to avoid it. Policymakers would then be free to dismantle the tools of prosecutorial leverage — overlapping offenses, draconian sentencing laws, punitive pre-trial detention, and more — without worrying about increasing the trial rate. The result would not be a first best and it would not achieve our criminal justice ideals, but it would be better than the status quo.
Highly recommended.