By Marc Levin, Khalil A. Cumberbatch
September 17 is Constitution Day, the anniversary of the 1787 signing by delegates to the Philadelphia Convention of the document that still governs us. This bulwark richly merits the ceremonies and civics lessons that mark the day. The Constitution, however, is not a museum piece. It is a living set of limits on government power, and the best way to honor it is to enforce it.
The gap between constitutional promise and daily reality is nowhere more urgent to close than in criminal justice, where government power is most concentrated, and the consequences of its abuse are most severe. Here are five places where it must close.
Rein in the federal criminal code
Congress has certain enumerated powers in the Constitution. Criminal law is not one of them; the Framers left that largely to the states. Yet Congress has enacted more than 5,000 federal criminal statutes, and federal agencies have added an estimated 300,000 regulatory offenses with criminal penalties. Walk a dog through a national park on a leash longer than six feet, or pick up a molted hawk feather off a hiking trail, and you have committed a federal offense.
That is not what the Framers had in mind. As has been proposed by a wide range of experts, including the Council on Criminal Justice Task Force on Federal Priorities, Congress should audit the federal criminal code, repeal redundant and overbroad offenses, and return criminal law to its constitutional home in the states, where it belongs.
Restore the right to a jury trial
The Sixth Amendment guarantees the accused the right to a speedy and public trial by an impartial jury. But that right has been functionally abolished. Today, 97% of federal convictions and roughly 95% of state convictions come through guilty pleas rather than trials. Many of those pleas are genuinely voluntary. Many are not. When prosecutors can threaten defendants who exercise their constitutional right to trial with a sentence five or 10 times longer than the plea offer, the choice between trial and plea is no choice at all.
The Supreme Court acknowledged this in its 2012 Lafler v. Cooper decision, noting that plea bargaining “is not some adjunct to the criminal justice system; it is the criminal justice system.” The question is whether that system is compatible with the Sixth Amendment when the trial penalty is severe enough to coerce innocent people into pleading guilty to crimes they did not commit. Among other reforms, Congress and state legislatures should require that plea negotiations be conducted on the record and ensure judges and juries are informed of all such offers at sentencing.
End civil asset forfeiture without conviction
The Fifth Amendment states that no person shall be deprived of property without due process of law. Yet civil asset forfeiture laws, created to fight organized crime and drug trafficking, allow government to seize – and keep – property suspected of involvement in a crime without ever charging, let alone convicting, its owner. The Institute for Justice has documented thousands of cases in which law enforcement took cash, cars, and homes from people who were never prosecuted. In many states, the proceeds flow directly back to the seizing agency, creating a perverse incentive for departments to police for profit rather than for public safety.
Fourteen states have required a criminal conviction before property can be forfeited. The rest should do the same, with common-sense exceptions for unclaimed property and property owned by foreign cartels. Congress should also close the federal equitable sharing loophole, which allows state agencies to circumvent stronger state laws by routing seizures through the federal government.
Guarantee open-file discovery and disclose AI-generated evidence
Deciding the Brady v. Maryland case in 1963, the Supreme Court held that prosecutors must disclose evidence favorable to the defense. More than 60 years later, Brady violations remain a leading cause of wrongful convictions. Michael Morton spent 25 years in a Texas prison for a murder he did not commit because the prosecutor withheld evidence pointing to another perpetrator. His exoneration prompted Texas to pass the Michael Morton Act in 2013, requiring open-file discovery – meaning the prosecution must share its entire file with the defense, not just what it unilaterally decides is favorable. Every state should adopt a similar law.
Artificial intelligence has created an urgent new dimension of this problem. Law enforcement agencies are already using AI tools to analyze evidence, generate investigative leads, and write police reports. When AI systems modify, enhance, or generate evidence, defendants, judges, and juries need to know. The Council on Criminal Justice Task Force on Artificial Intelligence, chaired by former Texas Supreme Court Chief Justice Nathan Hecht, has warned that without clear guardrails, AI systems can threaten due process. Disclosure of AI involvement in evidence production should be mandatory, and courts should develop standards for evaluating AI-generated evidence before it is admitted.
Fund the right to counsel that Gideon promised
In another landmark case decided in 1963, Gideon v. Wainwright, the Supreme Court unanimously held that the Sixth Amendment’s right to counsel applies to all criminal defendants, including those who cannot afford a lawyer. But today, Gideon’s promise remains substantially unfulfilled.
Public defenders in the United States carried an average of 194 felony cases per attorney in 2022, nearly double the national standard. In some California counties, a single contract attorney represented nearly 600 clients in a year. More than 80% of people charged with crimes cannot afford private counsel. The system that is supposed to represent them is chronically underfunded, understaffed, and, in many jurisdictions, structurally incapable of providing the meaningful legal representation the Constitution requires. States should adopt workload standards with enforcement mechanisms, and Congress should create a sustained federal funding stream for public defense comparable to what it provides for prosecution.
The Constitution does not enforce itself. Every one of these shortcomings has been visible for years, and most have been acknowledged by courts and commissions that, nonetheless, have not yet closed the gap, whether for want of resources, competing priorities, or a lack of political will. Constitution Day is a good occasion to remember that the document the Framers signed in Philadelphia was not merely an aspiration. It was a set of commands. We must honor it by delivering on its promise, not just on September 17, but every day the criminal justice system touches the lives of Americans.
This article was originally published by RealClearPolitics and made available via RealClearWire.
Marc A. Levin, Esq., is Chief Policy Counsel at the Council on Criminal Justice. He can be reached at mlevin@counciloncj.org.