Person: Crespo, Andrew
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Crespo
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Crespo, Andrew
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Publication The Hidden Law of Plea Bargaining(Columbia Law Review Association, Inc., 2018) Crespo, AndrewThe American criminal justice system is a system of pleas. Few who know it well think it is working. And yet, identifying plausible strategies for law reform proves challenging, given the widely held scholarly assumption that plea bargaining operates “beyond the shadow of the law.” That assumption holds true with respect to substantive and constitutional criminal law—the two most studied bodies of law in the criminal justice system—neither of which significantly regulates prosecutorial power. The assumption is misguided, however, insofar as it fails to account for a third body of law—the subconstitutional law of criminal procedure—that regulates and often establishes the very mechanisms by which prosecutorial plea bargaining power is both generated and deployed. These hidden regulatory levers are neither theoretical nor abstract. Rather, they exist in strikingly varied forms across our pluralist criminal justice system. This Article excavates these unexamined legal frameworks, conceptualizes their regulatory potential, highlights their heterogeneity across jurisdictions, and exposes the institutional actors most frequently responsible for their content. In so doing, it opens up not only new scholarly terrain but also new potential pathways to criminal justice reform.Publication Regaining Perspective: Constitutional Criminal Adjudication in the U.S. Supreme Court(The Minnesota Law Review Foundation, 2016) Crespo, AndrewAnthony Amsterdam’s seminal Perspectives on the Fourth Amendment opens with a discussion of the various institutional “vexations” that confront the Supreme Court when it works to interpret and implement the Fourth Amendment. Commemorating the centennial volume of the Review that first published that legal classic, this Article offers a renewed assessment of the institutional vexations confronting the Court in this arena, tracing three new institutional developments that have emerged over the four decades that have followed in the Perspectives’ wake. Those new developments are: (1) the sharp shift in the composition of the Supreme Court toward Justices with prior professional experience as prosecutors; (2) the rise of a markedly imbalanced Supreme Court Bar, in which criminal defendants not only lack the expert representation common to litigants in civil cases, but are also dramatically outmatched by the expertise of opposing government counsel; and (3) the rise of “constitutional-claim bargaining,” a process in which prosecutors exercise their considerable charging leverage to shape the pipeline of constitutional issues that are exposed to the light of litigation in the first instance, and that are thus able to make their way to the Supreme Court for review. This Article examines each of these new developments in turn. In so doing, it identifies specific steps that the Supreme Court itself could take to mitigate the potentially ill effects that these new vexations might entail—steps by which the Court could begin to regain a more balanced institutional perspective of the criminal justice system over which it presides.Publication Systemic Facts: Toward Institutional Awareness in Criminal Courts(Harvard University, Harvard Law School, 2016) Crespo, AndrewCriminal courts are often required, in the course of implementing existing doctrines of constitutional criminal law, to regulate other institutional actors within the criminal justice system — most notably, prosecutors and police officers. The one-off nature of constitutional criminal adjudication, however, often impedes such regulation, in part by denying courts an opportunity to “see” the systemic features of law enforcement behavior. This mismatch between criminal courts’ institutional task and their institutional capacity has inspired efforts to identify other means of addressing systemic failings of American criminal justice — including calls for a pivot to law enforcement self-regulation as a primary means of constraining state power in the criminal justice arena. The true capacity of criminal courts, however, has thus far been significantly underappreciated. For at an institutional level, criminal courts are not only deeply and serially engaged with the very governmental entities that constitutional criminal law seeks to regulate, but are also constantly collecting — often in a digital format readily amenable to organization, search, and analysis — valuable and detailed systemic facts about how other criminal justice actors operate. This information extends far beyond the truncated transactional horizon of a given case, and thus could allow courts to access a deep internal well of institutional knowledge about their local criminal justice systems. Uncovering the hidden potential of this latent institutional knowledge raises important questions about the opportunities for — and the responsibilities of — criminal courts to collect systemic facts, to analyze them, to make them transparent to litigants and to the public, and to integrate them into the process of constitutional criminal adjudication.