Public Law & Legal Theory
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.
Stephanos Bibas, "Transparency and Participation in Criminal Procedure," University of Chicago Public Law & Legal Theory Working Paper, No. 117 (2006).