Since 1999, the U.S. Department of Justice (“DOJ”) has had a formal policy detailing the criteria its lawyers will use for deciding whether to prosecute corporations for federal crimes. Three U.S. Deputy Attorneys General (Eric Holder, Larry Thompson, and Paul McNulty) in two administrations have authored and lent their names to different versions of the policy. The content of the policy has, however, largely remained the same. So have the criticisms of the policy from the corporate bar as well as some academics and members of Congress. These criticisms largely miss the mark—despite their constant repetition—for reasons that defenders of the DOJ policy have to date not clearly articulated. The critics seek to lay at the feet of the DOJ policy problems whose primary causes lie elsewhere, in places the critics may be reluctant to have us look. Thus, abolishing the objectionable parts of the policy, as Senator Arlen Specter’s recent bill seeks to do, will not likely have much effect. Taking seriously the problems raised by the critics will require more drastic change than they (or anyone) may be willing to undertake. My aim in this essay is not so much to defend the DOJ policy as to deflate the dominant criticisms and to refocus the debate.
Online
The Perils of Evidentiary Manipulation
Professors Bierschbach and Stein’s observation that evidentiary rules mediate the age-old tension between retribution and deterrence is both fascinating and thought provoking. The idea that the two hitherto balkanized fields are inextricably linked in this quirky but productive way is surely an impressive insight that will force criminal law and evidence scholars never again to look at their respective fields in quite the same way. In this Response, I want to focus on the broader normative question raised by their thesis—whether the legal system should use evidentiary rules to achieve substantive reform. Conveniently for me, I can leave the task of probing the relationship between the Bierschbach-Stein thesis and general criminal law theory to more qualified scholars, like my colleague Professor Mike Cahill.
So “[a]re mediating rules a virtue or a vice?” On this question, Bierschbach and Stein are nominally agnostic. For example, careful not to overstate their case, they acknowledge that such special evidentiary rules “might . . . be seen as illegitimately thwarting the accepted processes for resolving political agreement.” Put plainly, they recognize that evidentiary rules so conceived can become Trojan horses. The overall tenor of their essay and longer article, however, takes a somewhat rosier view. They emphasize the ability of mediating rules to facilitate compromise and “promote a rough social consensus around criminal law in a moral universe that is diverse and pluralistic.”
I am far more skeptical. The use of evidentiary rules to achieve substantive goals strikes me as a Faustian bargain, and, given Bierschbach and Stein’s acknowledgedly tentative position, I hope to dissuade them of the virtues of the practice. My goal therefore is to explore briefly the potential dark side of specialized evidentiary rules. The concerns of injecting substantive goals into evidence law extend far beyond the narrow legitimacy concerns Bierschbach and Stein raise. It is not simply the question of whether we aspire to a pluralistic or majority-take-all democratic society. Rather, evidentiary manipulation threatens the legitimacy of criminal and evidence law.
What’s Wrong with Democracy? A Critique of “The Supreme Court and the Politics of Death”
The primary thesis of Professor Stephen Smith’s provocative article The Supreme Court and the Politics of Death appears to be that the death penalty is a political tool used by ambitious prosecutors and that—despite wide public support for capital punishment—it is apparently the task of an enlightened judiciary to move towards its restriction or even its functional abolition. In this brief response, we beg to differ. Capital punishment is a proper punishment in the American criminal justice system, whose popular support should not mark it for judicial undermining, but rather judicial support. Professor Smith should be more trusting in the outcome of democratic processes.