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The Perverse Effects of Efficiency in Criminal Process

43 Pages Posted: 27 Jan 2014 Last revised: 13 Nov 2014

Darryl K. Brown

University of Virginia School of Law

Date Written: January 1, 2014

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.

Keywords: plea bargains, efficiency, criminal procedure, adjudication

JEL Classification: K41, K14, D73

Suggested Citation

Brown, Darryl K., The Perverse Effects of Efficiency in Criminal Process (January 1, 2014). Forthcoming, vol. 100 Virginia Law Review (2014); Virginia Public Law and Legal Theory Research Paper No. 2014-03 . Available at SSRN: https://ssrn.com/abstract=2383504

Darryl K. Brown (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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