Constitutional checks are an important part of the American justice system. The Constitution demands structural checks where it provides commensurate power. The Constitution includes several explicit checks in criminal law. Criminal defendants have rights to counsel, indictment by grand jury, and trial by jury; the public or executive elects or appoints prosecutors; legislatures limit actions of police and prosecutors; and courts enforce individual constitutional rights and stop executive misconduct. However, these checks have rarely functioned as intended because the Constitution and criminal law have failed to create—what I call—“subconstitutional checks” to adapt to the changes of the modern criminal state. Subconstitutional checks are stopgaps formed in the three branches of government to effectuate the rights in the Constitution when the system is stalled in dysfunction, when one branch has subjugated the others, or when two or more branches have colluded with one another. The need for subconstitutional checks is evident in the criminal arena. In the modern criminal state, plea agreements have virtually replaced jury trials, discipline and electoral competition between prosecutors is rare, separation of powers does not serve its purpose because the interests of all branches are often aligned, and individual constitutional rights have little real power to protect defendants from the state. As a result, the lack of structural constitutional checks in criminal law has led to constitutional dysfunction. Though never recognized as such, constitutional dysfunction in criminal law is evidenced by mass incarceration, wrongful convictions, overly harsh legislation, and an inability to stop prosecutor and police misconduct. This Article sheds light on the lack of constitutional checks by performing an external constitutional critique of the criminal justice system to explore this structural gap in the three branches and concludes that creating subconstitutional checks has the potential of reducing criminal dysfunction and creating a more balanced criminal justice system.
Baughman, Shima B., Subconstitutional Checks, 92 Notre Dame L. Rev. 1071 (2017)