Deregulating Guilt: The Information Culture of the Criminal System

Abstract:     
The criminal system has an uneasy relationship with information. On the one hand, the criminal process is centrally defined by stringent evidentiary and information rules and a commitment to public transparency. On the other, largely due to the dominance of plea bargaining, criminal liability is determined by all sorts of unregulated, non-public information that never pass through the quality control of evidentiary, discovery, or other criminal procedure restrictions. The result is a process that generates determinations of liability that are often unmoored from systemic information constraints. This phenomenon is exemplified, and intensified, by the widespread use of criminal informants, or "snitching," in which the government trades guilt for information, largely outside the purview of rule-based constraints, judicial review, or public scrutiny. With a special focus on the Supreme Court's decision in United States v. Ruiz, this Article explores the criminal system's putative stance towards the proper use of information in generating convictions, in contrast with actual information practices that undermine some of the system's foundational commitments to accuracy, fairness, and transparency. It concludes that the evolution of this deregulated information culture is altering the functional meaning of criminal guilt.

Accepted Paper Series