Become a Patron! 



Excerpted From: Raneta Lawson Mack, It's Broke So Let's Fix It: Using a Quasi-inquisitorial Approach to Limit the Impact of Bias in the American Criminal Justice System, 7 Indiana International & Comparative Law Review 63 (1996) (173 Footnotes) (Full Document)

RanetaLawsonMackThe character and quality of any system of justice must be measured by its pragmatism and mutability in the face of shifting societal ideologies and values. Long ago, the United States Supreme Court affirmed that “ ours is the accusatorial as opposed to the inquisitorial system.” That concise declaration has been a constant refrain in decisional precedent and serves as the fundamental underpinning of the United States' criminal justice system. Our accusatorial tradition is anchored by a profound loyalty and desire to protect individual rights guaranteed by our Constitution coupled with an explicit rejection of inquisitorial tactics reminiscent of Star Chamber “jurisprudence.” Chief among those fundamental protections is that no person shall “be deprived of life, liberty, or property, without due process of law.” The substantive and procedural protections afforded defendants in criminal trials have evolved since our nation's founding. During the 1960s, however, the United States Supreme Court, under the leadership of Chief Justice Earl Warren, effectively revolutionized the nature and quality of the accusatorial system through proactive interpretation and application of the Due Process clause and its protections. To effectuate this transformation, the Court engaged in a level of judicial activism that ultimately “force d major changes in the established legal and social order.” Thus “constitutional adjudication … became an instrument of reform,” with the Court assuming “special judicial responsibility for values and groups not adequately represented in the political process.”

The Warren Court's due process ideology breathed life and substance into the notion of an accusatorial system of justice as perhaps no other Court had done in the past and no Court has done since. Because this expansion of due process rights was concurrent with a period of intense social upheaval as the nation struggled with issues of race and civil rights, the jurisprudential enlargement of due process protections in the criminal context is inextricably intertwined with race and the expansion of civil rights. As a result, the legislative grant of basic civil rights and the contemporaneous judicial expansion of due process rights are often either consciously or subconsciously merged into a foreboding image of unprecedented rights and protections for minority criminal defendants. This imagery is sustained and, in many instances, exaggerated by a media that consistently depicts the visage of crime as a person of color.

The reality, of course, is that the Warren Court's constitutional doctrine expanded due process rights for all criminal defendants without regard to race. Building upon that premise, it is conceivable that any person arrested has an equal opportunity to avail himself or herself of the substantive and procedural protections afforded by our accusatorial system of justice. Consequently, although perhaps not desirable, factually guilty criminal defendants would have an equal chance to escape punishment or, alternatively, receive a reduced punishment as a direct result of an encroachment upon one or more constitutionally protected rights. Despite these expanded protections and the perception that these protections confer unwarranted benefits on minority criminal defendants, numerous studies reveal that minorities and whites are afforded differential treatment at almost every stage of the criminal justice process, beginning with arrest and culminating, in some instances, in execution. Indeed, one of the more compelling statistics reveals that while three times as many blacks are arrested for crimes, there is a ratio of seven blacks to each white in prison. Moreover, observers predict that if the prison population continues to rise at its current annual rate of increase, then by the year 2020, “4.5 million African-American men and 2.4 million Hispanic men will be incarcerated yielding a prison population of minority men about five times as large as the prison population of all races combined today.”

Clearly, these appalling statistics and predictions reveal that the reality of “due process” for minority criminal defendants is, very simply, one of being “processed” through the system. Furthermore, a careful examination of our criminal justice system discloses that this “processing” can, in part, be attributed to the myriad levels of discretion that arise throughout various stages of the criminal justice process. Discretionary decision-making inherently permits the interpolation of both subtle and overt bias and prejudice into the process. Thus, for certain categories of defendants, the expansive protections incorporated into our accusatorial system of justice ring hollow and meaningless when juxtaposed against the unfettered discretion that pervades the system.

From a scholarly perspective, it is neither unreasonable nor unprecedented to examine our criminal justice system and conclude that, in many respects, it is a microcosm of societal biases and prejudices. As a result, many have argued for sweeping changes in various aspects of the criminal justice system in order to significantly decrease or eliminate the impact of those biases. None, however, have critically examined the possibility, and potential viability, of a radical shift away from our accusatorial system of justice as a remedial response to systemic bias. To frame the issue more specifically, would the incorporation of inquisitorial elements significantly reduce the level of discretion and result in more race-neutral outcomes in our criminal justice system? This Article contends that a quasi-inquisitorial system of justice, patterned after the revised Italian Code of Criminal Procedure, would provide a more fair, equitable distribution of justice while also promoting the goal of seeking truth in the criminal justice system.

To develop this theory, this Article, in part II, will examine some of the fundamental distinctions between accusatorial and inquisitorial systems of justice through an examination of the ideologies and values that support each system as well as the roles and responsibilities of the primary players in each system.

Then, in part III, this Article will discuss some of the more salient features of the Italian criminal justice system and, more specifically, the Italian Code of Criminal Procedure as a theoretical model for transformation of our accusatorial system.

Finally, in part IV, this Article will systematically analyze how the goals of impartiality and fairness might be more aptly promoted through the adoption of a quasi-inquisitorial system of justice.

[. . .]

The American accusatorial system of justice is in desperate need of modification. Pervasive discretionary authority has produced an intolerable level of systemic bias that demands a remedial response. Such a response must include measures that provide effective checks and balances on that discretion while simultaneously preserving the ideological basis of the accusatorial system. This article has demonstrated how the incorporation of an inquisitorial soul into the accusatorial body of our current system, and the consequent creation of a quasi-inquisitorial system, would provide significant constraints on discretionary authority while preserving the necessary emphasis on due process and protection of individual rights. Additionally, because the quasi-inquisitorial system eliminates many of the vagaries associated with boundless discretion, it would promote a truth-seeking objective that would likely produce fair, uniform results and contribute to enhanced overall confidence in the American criminal justice system. 

Associate Professor of Law, Creighton University School of Law.


Become a Patron!