ADVERSARIAL ASYMMETRY IN THE CRIMINAL PROCESS DANIEL EPPS* It is a common lament that prosecutors in our criminal justice system are too adver- sarial. This Article argues that in a deeper sense, prosecutors may not be adver- sarial enough. The issue—which I call adversarial asymmetry—is that, as political actors, prosecutors have no inherent desire to seek maximal punishment, at least in any consistent way. While commentators tend to see this as a good thing, adver- sarial asymmetry helps explain a range of seemingly disparate pathologies in the criminal process. A number of problems—including the coerciveness of plea bar- gaining; pretextual prosecution; discriminatory charging practices; the proliferation of overly broad criminal statutes; the difficulty in deterring prosecutorial miscon- duct; and use of the grand jury as political cover for unpopular decisions—would not exist, or at least could be more easily solved, in a world where prosecutors were more single mindedly focused on maximizing victory in the criminal process. In fact, a more consistently adversarial system might have surprising advantages over our own, providing more accountability for prosecutors while being more consis- tent with the rule of law. And while heightened adversarialism unquestionably poses risks, alternative institutional structures could minimize those dangers. Even if actually implementing such a system is unrealistic or unappealing, the proposal has value as a thought experiment, for it exposes deep fault lines in the theoretical foundation of our system of criminal prosecution. Our current approach combines an adversarial process with politically accountable prosecutors—yet we lack a com- pelling account of what precise level of adversarialism is optimal or why political accountability is the right tool for producing good behavior from prosecutors. It should thus be unsurprising that our system often works poorly in practice. Absent a better reason to think that our current approach is the only option, we should be more willing to reconsider basic structural arrangements in criminal justice. * Copyright © 2016 by Daniel Epps, Associate Professor of Law, Washington Univer- sity in St. Louis. For helpful conversations and comments, I am grateful to Miriam Baer, Scott Baker, William Baude, Michael Coenen, Seth Davis, Daniel Deacon, Gerrit De Geest, Danielle D’Onfro, Garrett Epps, Daniel Farbman, Jacob Gersen, Jack Goldsmith, Andrew Hessick, Carissa Hessick, Bert Huang, John Inazu, Peter Joy, Pauline Kim, Michael Klarman, Matthew Lawrence, Benjamin Levin, Daryl Levinson, Saul Levmore, Leah Litman, Sara Mayeux, Eric Miller, Martha Minow, William Ortman, Lauren Ouziel, John Rappaport, Lawrence Rosenthal, Ian Samuel, Ganesh Sitaraman, Holger Spamann, and Adrian Vermeule; to workshop participants at Washington University School of Law, the Climenko Fellowship Program at Harvard Law School, CrimFest at the Cardozo School of Law, and the Southwest Criminal Law Conference at the University of Utah S.J. Quinney School of Law; and to the editors of the New York University Law Review. Gil- lian Gamberdell provided excellent research assistance. 762 October 2016] ADVERSARIAL ASYMMETRY 763 INTRODUCTION ................................................. 764 I. UNDERSTANDING ADVERSARIAL ASYMMETRY .......... 771 A. Identifying the Problem ............................. 772 B. Why Adversarial Asymmetry Matters................ 782 C. Prosecutorial Adversarialism in Historical Context . 786 II. THE COSTS OF ADVERSARIAL ASYMMETRY ............ 791 A. Insufficient Maximization ........................... 792 1. Substantive Overbreadth ........................ 792 2. Plea Bargaining, Coercion, and Overcharging ... 794 3. Discriminatory Charging Decisions ............. 800 B. Targeted Prosecution and External Incentives ....... 803 1. Pretextual Prosecution .......................... 804 2. Entrepreneurial Prosecution ..................... 806 3. Grandstanding and Abuse of Process ........... 808 C. Playing to Lose ..................................... 811 1. Misuse of the Grand Jury ....................... 811 2. Throwing Cases ................................. 814 D. Incentive-Design Problems .......................... 815 1. Legislative Priorities ............................ 816 2. Prosecutorial Misconduct ....................... 818 III. THE SURPRISING CASE FOR ADVERSARIALISM .......... 820 A. The Unexpected Benefits of Adversarialism ......... 821 1. Accountability .................................. 822 2. The Rule of Law................................ 826 3. Political Feedback .............................. 828 B. Mitigating the Risks ................................. 831 1. Prosecutorial Misconduct and False Convictions ..................................... 831 2. Equitable Discretion and Harsh Punishment .... 833 3. Case Selection................................... 836 C. Thoughts on Implementing Adversarialism .......... 837 1. Choosing Metrics and Dividing Responsibility . 838 2. Motivating Prosecutors .......................... 840 D. A Note on Resource and Power Asymmetries ....... 842 IV. IMPLICATIONS: THOUGHT EXPERIMENT AS CRITIQUE ... 844 A. Reconsidering the Minister-of-Justice Ideal .......... 844 B. The Puzzles of Prosecutorial Accountability ........ 846 C. Rethinking Adversarialism .......................... 851 CONCLUSION ................................................... 854 764 NEW YORK UNIVERSITY LAW REVIEW [Vol. 91:762 INTRODUCTION Our criminal justice system is built on an adversary model.1 While few criminal cases today are resolved through full-blown trials, the adversarial ideal nevertheless guides the entire criminal-adjudicative process. Few observers, however, are entirely happy with the state of adversarialism in American criminal justice. Critics argue that the adversarial process does a poor job of establishing the truth.2 Some contend that the adversarial contest is unfairly imbalanced in favor of the government.3 Others suggest that adversarialism is a highly ineffi- cient approach to dispute resolution.4 One particularly common lament, however, is that prosecutors are too adversarial. Prosecutors too eagerly embrace their role as defendants’ opponents and often exceed the outer limits of permissibly zealous advocacy in their single- minded pursuit of convictions.5 1 See ROBERT A. KAGAN, ADVERSARIAL LEGALISM: THE AMERICAN WAY OF LAW 61 (2001) (“Procedurally, American criminal justice is structured and pervaded by adversarial legalism . .”); JOHN H. LANGBEIN, THE ORIGINS OF ADVERSARY CRIMINAL TRIAL 1 (2003) (“The lawyer-conducted criminal trial, our so-called adversary system, is the defining feature of criminal justice in . the United States . .”). 2 See, e.g., LANGBEIN, supra note 1, at 331–43; WILLIAM T. PIZZI, TRIALS WITHOUT TRUTH 117–39 (1999); Carrie Menkel-Meadow, The Trouble with the Adversary System in a Postmodern, Multicultural World, 38 WM. & MARY L. REV. 5, 12–24 (1996); Christopher Slobogin, Lessons from Inquisitorialism, 87 S. CAL. L. REV. 699, 702–09 (2014). 3 See, e.g., Keith A. Findley, Adversarial Inquisitions: Rethinking the Search for the Truth, 56 N.Y.L. SCH. L. REV. 911, 912 (2011–12) (describing the adversarial process as “so compromised by imbalance between the parties” that “true adversary testing is virtually impossible”). 4 See, e.g., KAGAN, supra note 1, at 66 (“[A]dversarial legalism[ ] [has the] capacity to drag the legal process into a costly and protracted procedural morass.”); Gordon Van Kessel, Adversary Excesses in the American Criminal Trial, 67 NOTRE DAME L. REV. 403, 475–79 (1992) (attributing the increasing length of trials to “adversary excesses, including extreme lawyer dominance and aggressiveness and exceedingly complex rules of evidence and procedure”). 5 See, e.g., Kenneth Bresler, “I Never Lost a Trial”: When Prosecutors Keep Score of Criminal Convictions, 9 GEO. J. LEGAL ETHICS 537, 541–44 (1996) (arguing that prosecutorial conviction counting creates perverse incentives); Bennett L. Gershman, The Prosecutor’s Duty to Truth, 14 GEO. J. LEGAL ETHICS 309, 330–33 (2001) (describing several ways in which the adversarial structure of trial conflicts with the prosecutor’s responsibility to seek the truth); Abbe Smith, Can You Be a Good Person and a Good Prosecutor?, 14 GEO. J. LEGAL ETHICS 355, 388–91 (2001) (arguing that the adversarial system drives prosecutors to pursue winning cases over pursuing just outcomes); Fred C. Zacharias, Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors Do Justice?, 44 VAND. L. REV. 45, 107–08 (1991) (describing the prosecutor’s “do justice” mandate as unrealistic given the competitive nature of our legal system). October 2016] ADVERSARIAL ASYMMETRY 765 Such criticism of prosecutorial “hyperadversarialism”6 is nothing if not deserved. Despite much lip service,7 the notion that prosecutors should seek justice and not merely victory remains more of an aspira- tion than a reality. While many prosecutors discharge their duties hon- orably, too many shirk their ethical duties—sometimes doggedly pursuing defendants despite compelling evidence of innocence—and in far too many cases have been responsible for serious injustice.8 Former prosecutors have themselves described how the prosecutorial role can warp one’s sense of right and wrong.9 And yet for all that it gets right, the critique of prosecutors as too adversarial obscures a more important truth—not because it is wrong, exactly, but because it is too simple. While prosecutors