Transparency and Participation in Criminal Procedure.

Source: (2005) University of Pennsylvania Law School. Scholarship at Penn Law. Paper 85.

The insiders who run the criminal justice system–judges, police, and especially
prosecutors–have information, power, and self-interests that greatly influence the
criminal justice process and outcomes. Outsiders–crime victims, bystanders, and
most of the general public–find the system frustratingly opaque, insular, and unconcerned
with proper retribution. As a result, a spiral ensues: insiders twist
rules as they see fit, outsiders try to constrain them, and insiders find new ways
to evade or manipulate the new rules. The gulf between insiders and outsiders
undercuts the instrumental, moral, and expressive efficacy of criminal procedure
in serving the criminal law’s substantive goals. The gulf clouds the law’s deterrent
and expressive message and efficacy in healing victims; it impairs trust in and the
legitimacy of the law; it provokes increasingly draconian reactions by outsiders;
and it hinders public monitoring of agency costs. The most promising solutions
are to better inform crime victims and other affected locals and to give them larger
roles in criminal justice. It might be possible to better monitor and check insiders,
but the prospects for empowering and educating the general public are dim. (author’s abstract)