« Longest sentence yet in Jan 6 case, 14+ years in federal prison, given to man with 38 priors | Main | Should every state have a dedicated commission to receive complaints about prosecutors? »

May 7, 2023

"Evidence Rules for Decarceration"

The title of this post is the title of this new paper authored by Erin Collins and available via SSRN. Here is its abstract:

Two observations about the operation of the criminal legal system are so widely accepted that they are seem undeniable: First, it is a system of pleas, not trials.  Second, the system is too punitive and must be reformed.  One could easily think, therefore, that the Rules of Evidence, which apply intentionally and explicitly only to the adjudicatory phase of criminal procedure, have nothing to do with the solution.  And legal scholarship focusing on decarceration largely reflects this assumption: while many have explored reforms that target front end system actors and processes that lead people into the system (e.g. police, prosecutors, broad criminal statutes), and back end reforms that that seek to lessen the toll of punitive policies (sentencing reform, alternatives to incarceration), markedly fewer have explored how what happens in the middle — adjudication — contributes to mass incarceration.

While this oversight makes sense, it is not justified because it is also equally undeniable that plea bargaining happens in the shadow of trial.  This Essay examines how the shadow of trial — specifically, the shadow cast by evidentiary rulings about the accused person’s past — contributes to the perpetuation of an expansive carceral state.  It identifies how evidence rules have been relaxed, tweaked, specialized, or unmoored from their foundational principles in ways that facilitate prosecution and conviction or essentially force plea deals — without regard for the truth, fairness, or justice of the outcome.  In other words, it identifies ways that evidence law undermines the Rules’ primary purpose, which is to advance fair proceedings “to the end of ascertaining the truth and securing a just determination.”

May 7, 2023 at 09:34 PM | Permalink


Interesting that the paper begins with the premise that "the system is too punitive and must be reformed," and this is "so widely accepted... [as to be] undeniable."

It is very clearly NOT widely accepted or undeniable, given that Congress and the states continue to leave the current regime mostly as-is. The general direction is less punitive than it was, but it is moving that way only VERY slowly. The snail's pace of progress suggests to me that there's nothing like the broad consensus that the writers claim.

Posted by: Marc Shepherd | May 8, 2023 8:34:45 AM

If we look at the system like a home's plumbing system:
Our house is a wreck. leaky faucets, stopped-up drains, corroded pipes, backed-up sewage.
Most of the fixes and tweaks we do only address the visible, in-house hardware—faucets, maybe a new water heater now and then. Research like this Collins piece start to look at the pipes behind the walls. The ones that greatly impact the system but are not easily visible. What is really needed is to replace the line to the street and all internal plumbing.
To be clear, to me, those big lines would be the fundamental questions about how we define what should and shouldn't be illegal, the ways in which we enforce and respond to law-breaking behavior, the connection between historically under-resourced communities and crime/enforcement, and our addiction to inhumane and failed methods of punishment.
I applaud authors like Collins for examining some of the underlying premises and tools that feed our current state and have strayed so far from the values we profess as to be unrecognizable.

Posted by: SBradley | May 8, 2023 10:05:20 AM

I liken the 'system' of American criminal justice to a mythical "Hydra", a multi-headed dragon in which an attack on any one of the "heads" is automatically, instantaneously and always, forcibly defended by the remaining heads - this to sustain the life of the "whole". When the "collective heads" are working as intended, this "Hydra" is society's protector and defender, and we sit in peace, satisfied with its performance. However, when the heads are not working as intended (becomes dysfunctional, corrupted, and self-serving), it then becomes the enemy of the citizenry, and we talk of "reform", "adjustment", "betterment", etc. This is where we are at now, as it is undeniable that this "Hydra" is not functioning as intended.

Posted by: SG | May 9, 2023 5:48:53 PM

Marc Shepherd --

Correct. The view of the system from legal academia is wildly different from the view held by most normal people.

Posted by: Bill Otis | May 9, 2023 10:44:12 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB