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Hylton, Keith N.; Khanna, Vikramaditya S. --- "Political Economy of Criminal Procedure" [2009] ELECD 460; in Garoupa, Nuno (ed), "Criminal Law and Economics" (Edward Elgar Publishing, 2009)

Book Title: Criminal Law and Economics

Editor(s): Garoupa, Nuno

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847202758

Section: Chapter 7

Section Title: Political Economy of Criminal Procedure

Author(s): Hylton, Keith N.; Khanna, Vikramaditya S.

Number of pages: 36

Extract:

7 Political economy of criminal procedure
Keith N. Hylton* and
Vikramaditya S. Khanna**


1. Introduction
This chapter presents a public choice theory of criminal procedure.1
Alternatively, one could describe the argument of this chapter as a `rent-
seeking' theory of criminal procedure. We are especially concerned with
the panoply of rules that make it more difficult to convict criminal defend-
ants and obstruct the work of prosecutors. The rules appear to be perverse
at first glance, because any well-functioning society should aim to suppress
crime as effectively as possible. What purpose is served by rules that reduce
the likelihood that a guilty defendant will be punished?
The core idea of this chapter is that criminal procedure is best under-
stood as a set of rules designed to thwart attempts to use the state's law
enforcement power in a predatory fashion or in order to transfer wealth
generally. Our argument is most easily grasped if one imagines a society
consisting of predatory factions or predatory prosecutors who attempt to
use the law enforcement process as a mechanism for wealth extraction or
enhancement. A social planner, in such a society, might find it valuable
to construct a set of rules that cabin the predator; and since predators
are wily sorts, the rules may have to take a number of different forms and
change over time to meet new challenges.
This chapter's core idea, expressed simply as a concern for abuse, is not
new. Many courts have noted that ...