This Article considers aggregation in criminal law. In criminal law, fundamental constitutional rights to an individual day in court sharply limit the occurrence of procedural aggregation, such as joinder, during trials. By way of contrast, in civil cases, courts permit a range of aggregate litigation, including consolidation and class actions. Nevertheless, the boundaries between civil and criminal law approaches to aggregation are more permeable than conventionally understood. Courts now aggregate criminal cases, and they do so without violating constitutional rights, by joining cases only before trial and during appeals. I present five case studies examining novel aggregative procedures that courts employed to remedy systemic criminal procedure violations such as the lack of proportionality in death sentencing, wrongful convictions, forensic fraud and inadequate indigent representation. Second, I frame due process safeguards to structure future aggregation in criminal law. Finally, I develop a possible second wave of institutional reform that could flow from intermediate models that do not aggregate but accomplish similar goals, using innocence commissions, prosecutorial case review, special masters, and two-tier models of judicial review. I conclude that appropriate use of aggregation can potentially transform criminal adjudication, by providing an avenue to vindicate criminal procedure rights, and by encouraging efforts to create a more efficient, accurate, and fair criminal justice system.
Brandon L. Garrett, Aggregation in Criminal Law, 95 California Law Review 383-450 (2007)