Suchergebnisse

Democracy is often equated with majority rule. But closer analysis reveals that, in theory and by constitutional design, our criminal justice system should be supermajoritarian, not majoritarian. The Constitution guarantees that criminal punishment may be imposed only when backed by the supermajoritarian-historically, unanimous-approval of a jury drawn from the community. And criminal law theorists' expressive and retributive justifications for criminal punishment implicitly rely on the existence of broad community consensus in favor of imposing it. Despite these constitutional and theoretical ideals, the criminal justice system today is majoritarian at best. Both harsh and contested, it has lost the structural mechanisms that could ensure supermajoritarian support. By incorporating new supermajoritarian checks and reinvigorating old ones, we could make criminal punishment consonant with first principles and more responsive to community intuitions of justice.

From secret stingray devices that can pinpoint a suspect's location, to advanced forensic DNA-analysis tools, to recidivism risk statistic software—the use of privately developed criminal justice technologies is growing. So too is a concomitant pattern of trade secret assertion surrounding these technologies. This Article charts the role of private law secrecy in shielding criminal justice activities, demonstrating that such secrecy is pervasive, problematic, and ultimately unnecessary for the production of well-designed criminal justice tools. This Article makes three contributions to the existing literature. First, the Article establishes that trade secrecy now permeates American criminal justice, shielding privately developed criminal justice technologies from vigorous cross-examination and review. Second, the Article argues that private law secrecy surrounding the inner workings—or even the existence—of these criminal justice technologies imposes potentially unconstitutional harms on individual defendants and significant practical harms on both the criminal justice system and the development of well- designed criminal justice technology. Third, the Article brings the extensive literature on innovation policy to bear on the production of privately developed criminal justice technologies, demonstrating that trade secrecy is not essential to either the existence or operation of those technologies. The Article proposes alternative innovation policies that the government, as both a funder of research and the primary purchaser of criminal justice technologies, is uniquely well-positioned to implement.