The Place of 'the People' in Criminal Procedure
60 Pages Posted: 13 Nov 2018 Last revised: 30 Jan 2019
Date Written: October 26, 2018
The rules and practices of criminal procedure assume a clean separation between the interests of the public and the interests of the lone defendant who stands accused. Even the names given to criminal prosecutions often declare this dichotomy, as in jurisdictions such as California, Illinois, and New York that caption criminal cases “The People of the State of X v. John Doe.” This Essay argues that this traditional people/defendant dichotomy is critically flawed, and then builds on that critique to point the way toward a more realistic, inclusive, and just vision of the role of the public in the criminal process.
The people/defendant dichotomy in the ideology of contemporary criminal procedure rests on two mistaken premises: first, that prosecutors are and should be the primary representatives of the public in the courtroom; and second, that the rules of criminal procedure must limit direct public participation to an illusory, limited subset of the public that is deemed “neutral” and “unbiased.” These conceptions of representation and neutrality distort the criminal legal system’s understanding of who “the people” are, marginalizing and excluding the voices of those members of the community who stand to be harmed by the defendant’s prosecution or incarceration. As a result, the ideology of the people/defendant dichotomy promotes practices that are more punitive than the multifaceted interests of the public dictate.
This Essay puts forth a new, alternative approach to thinking about popular participation in criminal procedure, an approach that recognizes that “the people” can and do appear on both sides of the scale of justice. This recognition casts new light on the role of bottom-up resistance to local police actions and prosecutions - such as through courtwatching, participatory defense, and community bail funds - by those who otherwise do not have a voice in the process. And it directs us toward procedural rules and constitutional jurisprudence that both acknowledge communal interests beyond prosecution and promote an inclusive system of criminal adjudication responsive to the multidimensional demands of the popular will.
Keywords: criminal procedure, prosecution, community justice, community bail funds, participatory defense
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