NewYorkUniversity
LawReview
Current Issue

Volume 81, Number 3

June 2006

Transparency and Participation in Criminal Procedure

Stephanos Bibas

A great gulf divides insiders and outsiders in the criminal justice system. 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 system’s 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 of this gulf, a spiral ensues: Insiders twist rules as they see fit, outsiders try to constrain them through new rules, and insiders find 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 messages, as well as its 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 inform crime victims and other affected locals better and to give them larger roles in criminal justice. It also might be possible to do a better job monitoring and checking insiders, but the prospects for empowering and educating the general public are dim.