Working Paper No. 04-43:
Legislators as the 'American Criminal Class:' Why Congress (Sometimes) Protects the Rights of Defendants
Date Posted: 2004
Abstract (below) | Full text (most recent) on SSRN
It is an axiom of faith among criminal procedure scholars that legislatures are hostile to criminal defendants. Many have gestured towards an alleged 'legislative default' in criminal procedure to support judicial activism to ensure fairness in the criminal process. This article, taking its cue from Mark Twain's insight that Congress is our 'distinctly native American criminal class,' questions the prevailing wisdom and argues that legislatures are sometimes sympathetic to criminal defendants.
Over the centuries, legislators have been menaced by criminal prosecution, and this prospect has, on significant occasions, shaped the development of Anglo-American criminal procedure. In the late seventeenth century, after a prolonged period of vicious treason prosecutions, over the course of which almost every political faction was threatened and not a few innocent people executed, Parliament intervened to provide protections for defendants accused of treason. These measures included many of the rights we take for granted in criminal trials today: the right to counsel, to compel witnesses to appear on the defendant's behalf, and to have those witnesses sworn. More recently, in the aftermath of the Abscam sting operation of 1978—1980, Congress scrutinized undercover investigations; and following the unsuccessful prosecution of Representative Joseph McDade in 1996, Congress enacted a pair of measures to rein in federal prosecutors. Congress in part has itself to blame for the ease with which federal prosecutors can now bring close cases, for Congress has in recent years vastly extended criminal liability, particularly in the area of white collar crime. This article argues that the federalization of crime exposes politically prominent individuals, including members of Congress, to the criminal process and in this way ensures that the institution will not be wholly antagonistic to criminal defendants.