Some constitutional rights of criminal procedure apply unequally, varying based on offense (or punishment) severity. Of these, some vary proportionally, attaching or strengthening as offense severity increases. For example, the Sixth Amendment guarantees the rights to appointed counsel for indigents and jury trial for defendants charged with any felony but only some misdemeanors. In contrast, other rights are inversely proportional. For example, the strength or applicability of some aspects of the Fourth Amendment right against unreasonable searches and seizures and the Eighth Amendment right against excessive bail decrease as offense severity increases. This Article examines whether such rights should vary based on offense severity or whether they should apply equally. After finding the individual rationales for specific rights varying with offense severity unpersuasive, it next argues that the general rationale for allocating rights proportionally conflicts with the rationales for inversely proportional rights. Furthermore, both types of unequal allocation distort and undermine the very protections these rights were meant to afford. They encourage prosecutors to engage in a form of criminal justice arbitrage-exploiting and leveraging differences in rights-and unconstitutionally coerce defendants to relinquish some rights to obtain others. This Article concludes that constitutional rights of criminal procedure should be offense neutral, applying equally regardless of offense severity.
55 Wake Forest L. Rev. 985 (2020).