Darryl Brown

How Criminal Law Dictates Rules of Criminal Procedure

Rutgers University Law Review

UVA Law Faculty Affiliations


Choices about criminal law and punishment have implications for procedural rules. Some criminal procedure rules are recognized as fundamental to the rule of law, individual rights, or fair administration of criminal justice. They are constitutive of criminal justice and should hold regardless of changes in substantive criminal law. Others are merely instrumental; other procedures could accomplish the same thing just as well. But a third type of procedural rule is required or highly favored by a jurisdiction's choices about how to define its criminal law and its punishment policies. These rules can be critical to legitimacy because choices about crime definitions and punishment policies have made them necessary for legitimate implementation of criminal law. In this way, substantive law and procedure are interdependent: a particular account of criminal law requires corresponding procedural features and is incompatible with others. Likewise, some procedural institutions reflect a specific theory of criminal law or punishment.

This paper explores this substance-procedure interdependence by focusing on rules of charging and sentencing authority. Charging-authority rules either grant prosecutors wide discretion in deciding whether to charge actors whose guilt they can prove, or prohibit such discretion by imposing a mandatory prosecution duty. Sentencing-authority rules either give judges discretion to fix a sentence within an authorized range or bar such discretion by mandating specific punishments for particular offenses. When legislatures fail to define criminal liability criteria precisely enough to match individual moral culpability--as they sometimes deliberately do, and as many think is sometimes inevitable-procedural discretion is the necessary means to keep criminal law enforcement in accord with criminal law principles. This paper explores some of the challenges of this remedy for failures of substantive criminal law as well as the conditions necessary for adopting the alternative, mandatory prosecution rule.


Darryl K. Brown, How Criminal Law Dictates Rules of Criminal Procedure, 70 Rutgers University Law Review 1093-1115 (2018).

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