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Transparency and Participation in Criminal Procedure
Stephanos Bibas, University of Pennsylvania, Law School
Forthcoming 86 N.Y.U.L. Rev. (June 2006).
ABSTRACT:
The insiders who run the criminal justice
system–judges, police, and especially prosecutors–have
information, power, and self-interests that greatly influence
the criminal justice process and outcomes.
Outsiders–crime victims, bystanders, and most of the
general public–find the system frustratingly opaque,
insular, and unconcerned with proper retribution. As a
result, a spiral ensues: insiders twist rules as they see fit,
outsiders try to constrain them, and insiders find new ways
to evade or manipulate the new rules. The gulf between
insiders and outsiders undercuts the instrumental, moral,
and expressive efficacy of criminal procedure in serving the
criminal law’s substantive goals. The gulf clouds the law’s
deterrent and expressive message and efficacy in healing
victims; it impairs trust in and the legitimacy of the law; it
provokes increasingly draconian reactions by outsiders;
and it hinders public monitoring of agency costs. The most
promising solutions are to better inform crime victims and
other affected locals and to give them larger roles in
criminal justice. It might be possible to better monitor and
check insiders, but the prospects for empowering and
educating the general public are dim.
SUGGESTED CITATION:
Stephanos Bibas,
"Transparency and Participation in Criminal Procedure"
(November 30, 2005).
University of Pennsylvania Law School.
Scholarship at Penn Law.
Paper 85.
http://lsr.nellco.org/upenn/wps/papers/85
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