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Abstract: In the context of criminal justice, many constitutional rights have eroded for reasons that are largely ignored. Beginning in the 1960s, the criminal procedure revolution sought to expand rights and remedies, encourage front-line justice system actors to respect defendants’ rights, and counteract discrimination. Yet many of these rights and remedies have progressively weakened. Prosecutors and police officers can easily evade constitutional norms. And defendants have little recourse against routine forms of discrimination that pervade the criminal justice system. How did this happen? And why?
This Article argues that four overlooked phenomena explain why certain constitutional rights weaken within the criminal justice system. First, constitutional rights can impose administrative burdens on justice system actors, which encourages under-investigation, under-litigation, and assembly-line guilty pleas. Second, constitutional rights may result in subtractability, meaning that each defendant’s legal claims can lower the quality of justice for others. The realities of administrative burdens and subtractability, in turn, elucidate how defendants who exercise their constitutional rights can impose negative externalities (or unaccounted-for costs) onto others that decrease the quality of criminal justice. Third, in response to expansive interpretations of rights, justice system actors can bypass these rights through different means: funding cuts, penalties, gamesmanship, and overregulation. Lastly, although courts initially interpret rights and remedies expansively, subsequent judicial decisions may deflate these rights and remedies over time. These four phenomena demonstrate how some constitutional rights can be self-defeating or can produce systemic adverse effects that are hiding in plain sight.
Ultimately, this Article provides a novel and comprehensive theory of how constitutional rights can deteriorate in the criminal justice system, and offers a starting point to better comprehend the erosion of constitutional rights more generally.
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