Law and Free Market Concepts Intertwine in U.S. Criminal Justice, Professor Darryl Brown Finds in New Book

Professor Darryl Brown, the O. M. Vicars Professor of Law, explores how free market concepts affect the U.S. justice system in new book.

January 13, 2016

The criminal justice system in the United States is unique because of Americans' faith in democratic processes and free markets, University of Virginia School of Law professor Darryl Brown details in his new book, "Free Market Criminal Justice," published by Oxford Press.

"We really trust the political process rather than the law to prevent government abuse of power," Brown said. "[We also] trust in the market, or market ideas and market-style processes, rather than law, as a way to organize the criminal justice process."

Brown is the O. M. Vicars Professor of Law and worked as a public defender earlier in his career. He is an expert in criminal law, criminal procedure and evidence.

He said democratic processes play into Americans' strong desire for accountability.

"All democracies want their criminal justice systems to be accountable, and all their public institutions to be accountable," Brown said. "And the jury is a democratic feature in the trials in lots of other countries, too. But this idea of democratic process, or really political accountability, just goes further in the American criminal justice system than you find anywhere else."

The United States is the only nation in the world that elects its prosecutors, he said. If prosecutors don't act in the best interests of justice, they can be removed by the people.

In some common law countries such as England, "they use judicial review to guard against prosecutor discretion or arbitrariness," Brown said. "We use political review, you could say, at the ballot box."

Market philosophy, normally thought of as an economic concept, is another idea Americans have folded into criminal law.

"The adversarial trial process has a lot in common with the market that we don't normally think about," Brown said "The parties are rivals, and the parties have most of the power, rather than the judge or a neutral government official."

The parties compete by offering evidence for their own sides or in their own interest. Or they can negotiate between themselves and reach a settlement that will effectively define the court's judgment.

"In criminal adjudication as in private markets, competition among rivals in theory produces the best results," Brown said.

A key way parties negotiate in the criminal justice context is by plea bargain.

"Courts talk explicitly all the time about the 'market' for plea bargains, or they talk about prosecutors and defendants buying and selling legal rights, trading legal entitlements," he said. "The law of plea bargaining borrows explicitly from the law of contract that governs private agreements between parties in the marketplace."

There are no rules on plea bargains and other criminal negotiations in the United States because there aren't equivalent rules in the private market, Brown said.

In England, plea bargain sentences are limited to one-third less than what the sentence would be if the defendant were convicted at trial, and prosecutors are bound by administrative rules for making charging decisions, which courts enforce. In the U.S., prosecutors’ charging guidelines are merely internal memos that the chief prosecutor can change or ignore at any time.

In England and Australia, Brown said, prosecutors would never make recommendations to a judge about what a sentence would be.

"They just think that's inappropriate to their role as ministers of justice," he said.

Brown said Americans' acceptance of the use of discretion in the criminal justice system is in contrast to popular fears of government overreach in other settings.

"All our suspicions of executive discretion, all our suspicions of government power in general just go out the window in the criminal justice realm," he said. "I think ultimately it's just because we've come to expect the government to provide a level of safety and security in a way that people of the founding generation and the early republic just didn't."

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