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February 5, 2014

"The Perverse Effects of Efficiency in Criminal Process"

The title of this post is the title of this great-looking new paper by Darryl Brown now available via SSRN.  Here is the abstract:

The need for greater efficiency in legal process is an undisputed premise of modern policy, and efficiency’s virtues hardly merit debate, notably by the U.S. Supreme Court. A central part of the story of modern adjudication is the steady gains in case processing efficiency. This, above all else, explains the “vanishing trial” and its replacement by civil settlement and, in criminal courts, by plea bargaining.

Defining efficiency in any context, however, is a more complicated endeavor than courts, policymakers, and many commentators commonly acknowledge. It requires first defining ends and means, and even whether a given practice is an end or a mean. Jury decision making, for example, was once an end of trial process that served public interests beyond rendering verdicts. Over time it has become merely a means; case resolution became the overriding dominant goal. Making a process more efficient can thus change both its nature and purposes. Moreover, efficiency’s consequences are more ambiguous than is often recognized. Producing any product more cheaply — including criminal convictions — can have a range of effects. It can reduce production costs if demand is constant; it can help to meet rising demand without a rise in production costs; it can also generate greater demand for the good.

This Essay develops these ideas in criminal adjudication and links adjudication’s efficiency-driven transformation to the expansion of criminal law enforcement and punishment in recent decades. By lowering the unit-cost of convictions, efficient adjudication can encourage more prosecutions and marginally subsidize more incarceration. In the process, efficiency has redefined adjudication’s aims and reordered its priorities, valuing clear, measurable aspects such as numbers of convictions and devaluing qualitative components related to juries, participation, the substantive nature of judgments, and perhaps factual accuracy.

February 5, 2014 at 05:58 PM | Permalink


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The biggest impact is one he has failed to mention in the abstract: it has encouraged legislatures to pass more criminal laws. Thus the scope of criminality has vastly increased in modern society. I learned recently that a person can be fined in my state and sentenced to jail for a violation of the traffic laws that goes under the wonderful name of "improper door opening." Even more delightfully the law doesn't even bother to define what this term means (so it is probably void for vagueness) and I haven't discovered any case law on the subject.

In short, whatever the merits of plea bargaining it hasn't resulted in an efficient criminal justice system that allows society to focus on more important values; instead it has resulted in a system where the more efficient the system the more is demanded of it by the legislative master.

Posted by: Daniel | Feb 5, 2014 6:40:23 PM


20 million FBI Index felonies. These are traditional, serious crimes, not over-criminalization. They do not even include drug offenses.

2 million prosecutions. Commit a serious crime, there is a 90% chance you will not be inconvenienced in any way by the criminal law.

The sole path to efficiency is through the person. Kill the repeat violent offending criminal, prevent 10,000 future crimes, the injuries, the crushing effects of crime on the economy, and on the lives in its proximity.

Posted by: Supremacy Claus | Feb 5, 2014 10:57:25 PM

One thing I have to wonder about plea bargaining and the many criticisms of it. I know that before plea bargaining became the normal route for criminal charge resolution that a defendant still had the option of simply pleading guilty, but in what percent of cases was that route actually taken? If most criminal charges were actually resolved via open plea and then a more lenientrecommendation from the prosecutor I don't see that doing away with plea bargaining would really accomplish nearly as much as the critics think. Only if a open guilty plea was the exception rather than the norm could I see it making much of a difference.

Posted by: Soronel Haetir | Feb 6, 2014 1:54:28 AM

Supremacy Claus, how many of those cases were prosecuted locally instead of with the FBI? Really, federal prosecutions are a poor index overall.

Soronel Haetir, that's an interesting question. I know before modern police and Prosecutor practices in New York, it was not uncommon to mass Nol Pros cases (e.g., dismiss 50 cases all at once) because of lack of prosecution. But that was a combination of overwork and inefficient practice (non-centralized police precincts, lost evidence, etc. were contributors, not just too many cases). Still, it would be worth finding out how many cases pled straight. My guess is the tendency to seek efficiency would have led most Judges to reward pleas so, depending on the Judge, defense attorneys would advise their clients to plea and the practice would not be much different than now (except the Prosecutor would control the process).

Posted by: Erik M | Feb 6, 2014 9:21:09 AM

Erik: Crime is being measured by the gold standard methodology of the DOJ population survey. It is free of political influence. It has been adopted by the UN for its measurement of crime around the World. All the FBI Index felonies are state crimes, unless committed on federal territory: homicide, forcible rape, aggravated assault, robbery, burglary, theft, motor vehicle theft, arson. These crimes are the reason to have government, to protect us, so we do not have to do our own security.

The lawyer run and controlled government is in utter failure if it allows such rampant criminality (down close to 50% since the 1990's). Its sole effective tool is incapacitation. The rest is ineffective rent seeking procedure and theater, to fool the public.

Review of method:


Summary of criminal victimization:


Posted by: Supremacy Claus | Feb 6, 2014 9:46:21 AM

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