The criminal justice system is dominated by a trio of forces: crime rates, the definition of crime (which of course partly determines crime rates), and funding decisions-how much money to spend on police, prosecutors, defense attorneys, judges, and prisons. These forces determine the ratio of crimes to prosecutors and the ratio of prosecutions to public defenders, and those ratios in turn go far toward determining what the system does and how the system does it. But the law that defines what the criminal process looks like, the law that defines defendants' rights, is made by judges and Justices who have little information about crime rates and funding decisions, and whose incentives to take account of those factors may be perverse. My aim is to suggest that constitutional criminal procedure has substantial unappreciated costs; I do not discuss its (better appreciated) benefits, which may also be substantial. Theargument thus does not lead to any confident bottom line. It does, however, undermine what seems to be the confident bottom line of most judges and most academics in the field-that the current approach to constitutional law and criminal justice is unambiguously sound.
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