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April 3, 2016

"Subconstitutional Checks"

The title of this post is the title of this great-looking new paper authored by Shima Baradaran Baughman now available via SSRN. Here is the abstract:

Constitutional checks are an important part of the American justice system.  The Constitution demands structural checks where it provides commensurate power.  The Constitution includes several explicit checks in criminal law. Criminal defendants have the right to counsel, indictment by grand jury, trial by jury, the public or executive elects or appoints prosecutors, legislatures limit actions of police and prosecutors, and courts enforce individual constitutional rights and stop executive misconduct.  However, these checks have rarely functioned as intended by the constitution and criminal law has failed to create — what I call — “subconstitutional checks” to adapt to the changes of the modern criminal state.

Subconstitutional checks are stopgaps formed in the three branches of government to effectuate the rights in the constitution when the system is stalled in dysfunction, when one branch has subjugated the others, or when two or more branches have colluded with one another.  The need for sub constitutional checks is evident in the criminal arena. In the modern criminal state, plea agreements have virtually replaced jury trials, discipline and electoral competition between prosecutors is rare, separation of powers does not serve its purpose because the interests of all branches are often aligned, and individual constitutional rights have little real power to protect defendants from the state.

As a result, the lack of structural constitutional checks in criminal law has lead to constitutional dysfunction.  Though never recognized as such, constitutional dysfunction in criminal law is evidenced by mass incarceration, wrongful convictions, overly harsh legislation, and an inability to stop prosecutor and police misconduct.  This Article sheds light on the lack of constitutional checks by performing an external constitutional critique of the criminal justice system to explore this structural gap in the three branches and concludes that creating subconstitutional checks has the potential of reducing criminal dysfunction and creating a more balanced criminal justice system.

April 3, 2016 at 08:15 PM | Permalink


Doug, the two largest areas of lack of constitutional checks that I see is double jeopardy, where the State honors the Fifth Amendment in the breach and repeatedly inflicts double punishment for the same factual conduct. Like separate consecutive punishment for attempted murder and assault with a deadly weapon with intent to kill, when the assault is the overt action element of attempted murder.

The second area is Eighth Amendment as applied challenges. Graham v Florida specifically recognizes the power of the judiciary to declare a sentence grossly disproportionate. However, most judges adhere to the pre-Graham notion that if a sentence is within the range allowed by the legislature it is ipso facto constitutional. (in my view if a sentence is outside the range allowed there are other constitutional violations in addition to cruel and unusual punishment)

Posted by: bruce cunningham | Apr 3, 2016 10:33:38 PM

One per curiam and one unanimous regular opinion in sentencing news.

Jury case also taken for argument.

Posted by: Joe | Apr 4, 2016 10:27:35 AM

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