Because books chapters tend to get less exposure, scholars and policymakers might easily miss this provocative revisitation of the substance-procedure distinction in criminal cases. Don Dripps begins his new look at this issue by recasting the traditional procedural dyad—usually dubbed inquisitorialism and adversarialism—into three distinct categories—rationalist, pluralist and reductionist. For Dripps, rationalism, which comes closest to the usual view of the European continent’s inquisitorial process, is “the rational discovery of the historical facts and the logical application of the substantive law to the facts so found.” Pluralism, more closely associated with the Anglo-American adversarial system, assumes that rationalism is just one of many values the criminal justice system might hope to achieve and generally not even the most important. Reductionism is the idea that “the substance-procedure distinction is illusory” because the applicable procedural structure allows decision-makers to ignore or at least minimize the influence of offense definitions and sentencing rules. (Pp. 410-11).
Using these categories Dripps examines the oft-discussed phenomenon of convergence, the fact that criminal systems around the world are slowly moving toward one another, with European systems in particular increasing lay participation and the use of exclusionary rules. From Dripps’ theoretical perspective, that movement is not surprising; rationalism and pluralism, he says, are much more compatible than is commonly thought. That is because either type of system will depart from a pure truth-finding mission if that mission “conflicts with the legality principle’s prohibition of extra-judicial institutional violence” or “conflicts with an extrinsic value that is very important and can be accommodated with minor damage to material proof.” (Pp. 422-23). Under the first exception, even the privilege against self-incrimination can be accepted by a rationalist to the extent it is understood as a means of ensuring that coercive interrogation practices do not become the principal means of gathering evidence. Other evidentiary limitations—the journalist privilege, the ability of witnesses to claim a right to silence, the courts’ authority to exclude an alleged sex offense victim’s sexual history—all protect important interests, usually without preventing the state or the defense from getting at the truth in some other way, and thus might be acceptable to rationalists, as well as pluralists, under the second exception. At the same time, pluralism’s commitment to all-lay decision-makers does not clearly undermine the search for truth. And its willingness to exclude illegally seized evidence, which does compromise that search, is counter-balanced by the pervasiveness of plea bargaining, which is in part the result of exclusionary pressures and features an inquisitorial bureaucrat (the prosecutor) who is only rarely subject to an“appeal” (to the jury), thus providing further evidence of convergence.
To Dripps, rationalism and pluralism are not even at significant odds in their attitude toward nullification. In addition to the negative aspect of the legality principle (which, as mentioned above, bars excessive government abuse), the rationalist adheres to a positive view of legality that requires conviction of those who are defined as guilty by statute. But pluralists, despite explicitly eschewing positive legality, are not that much different: their admittedly greater commitment to implementing extrinsic values through the criminal justice system does not go so far as to countenance charges and verdicts that fail to reflect the facts made relevant by statutory law.
This is where reductionism, with its conflation of substance and procedure, comes in. Reductionism threatens both rationalists and pluralists, because it views the substance of criminal law not as something declared by the legislature but as the result of procedural machinations. Its primary weapon is plea bargaining, where defendants intimate a desire for the cumbersome trial process in order to obtain legal verdicts that do not conform to the facts and where prosecutors over-charge and judges over-sentence to make sure negotiations take place. The dynamic by which defendants convert procedural rights into substantive windfalls is most pronounced in the United States, which represents the pinnacle of pluralism, but Dripps points out that many rationalist-leaning European systems permit its equivalent today. Thus, reductionism may be the real point of convergence in modern times.
Dripps finds this development troubling and trots out a number of solutions, many of which others have proffered as well: simplifying trial procedure to lessen the pressure on prosecutors; prohibiting waiver of procedural rights; legalizing plea bargaining in a way that requires development of clear, appealable charging criteria; formalizing the penalty for going to trial so that the coerciveness of bargaining is more transparent; and imposing constitutional or other limitations on the scope of criminal liability and sanctions in an effort to curb prosecutorial discretion. Dripps seems most drawn to the latter possibilities, because he believes that otherwise prosecutors will exercise increasingly greater power in ways that undermine both verdict accuracy and legality. Constructing a coherent theory of criminal law based on retribution, utilitarianism or some mix thereof and forcing decision-makers to apply it in a transparent fashion, Dripps argues, will reduce procedure’s modern tendency to sabotage the system’s ability to reflect material truth as to the either the precise crime committed or the sentence that ought to be imposed.
In a recent book, Juveniles at Risk: A Plea for Preventive Justice (Oxford University Press, 2011), Mark Fondacaro and I have accepted this challenge in the juvenile justice context. In that setting, our justificatory theory is individual prevention, so that once it is determined a crime has been committed the key decisions to be made are about risk and risk management, not culpability and punishment, and the due process clause, not the adversarial system envisioned by the Sixth and Fifth Amendments, would govern procedure. In this type of system, “private deals between the defense and the prosecution would not be possible . . ., since experts, monitored by a judge, would have to be involved in the risk-assessment and management process. While some efficacy would thereby be sacrificed, the slimmed-down trial process, together with the elimination of the right to silence, might more than make up for this loss (and, given its openness relative to the bargaining process, would also improve perceived fairness, if not reliability).” (P. 120). Because decision-makers—judges and risk experts—would be required to proceed in open court, substantive rules—defining the probability and degree of risk that permits intervention—would not be easy to disregard.
Dripps might not agree with these specific prescriptions, even if limited to the juvenile justice system. But they at least do not ignore the threat of reductionism, because they are based on a coherent theory of punishment and mandate a procedure that implements it. As Dripps concludes, “[t]hose who reject reductionism, whether we work on substance or procedure, should account for the terms of trade between the two that now prevail, either by explicitly bracketing the plea-bargaining problem or by explaining how our analyses improve our understanding, or our prescriptions might improve the practice, of the system in place.” (P. 432).
