A PUBLIC CHOICE THEORY
In this paper we provide an economic justification for
the pro-defendant bias in American Criminal Procedure that we argue paints
a more complete picture of the extent and breadth of these pro-defendant
procedures than the most commonly forwarded justifications to date. The
most commonly forwarded rationale for the pro-defendant bias in American
Criminal Procedure is that the costs associated with false convictions
(i.e., sanctioning and deterrence costs associated with the erroneous
imposition of criminal sanctions) are greater than the costs associated
with false acquittals. We argue that on closer inspection this rationale
does not justify the extent of our pro-defendant criminal procedures.
We offer another justification for these protections: to constrain the
costs associated with abuses of prosecutorial or governmental authority.
In a nutshell, our claim is that these procedural protections make it
more costly for self-interested actors, whether individuals or government
enforcement agents, to use the criminal process to obtain their own ends.
Such protections help to reduce the rent-seeking and deterrence costs
associated with abuses of prosecutorial or governmental authority in the
criminal sphere. The theory developed here explains several key institutional
features of American Criminal Procedure and provides a positive theory
of the case law as well. The theory is also corroborated by empirical
evidence on corruption from several countries.
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