Document Type

Article

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“The Coming Crisis of Criminal Procedure” (with Dan Kahan) 86 Georgetown Law Journal 1153 (1998)

Abstract

Constitutional doctrines have life cycles. They are born of practical need, flourish in an atmosphere of general utility, and decline as changing conditions drain them of their vitality. When the contradiction between a doctrine and social necessity finally becomes too intense to be endured, the doctrine expires-sometimes peacefully, sometimes convulsively-and is superseded by another doctrine that is fated to enjoy the same career.

Our purpose in this article is to anticipate the imminent death of certain prominent doctrines of criminal procedure. These doctrines-in particular, the constitutional standards used to evaluate discretionary community policing- have outlived their utility. It's now time to construct a new criminal procedure, one uniquely fitted to the conditions that currently characterize American social and political life and that are likely to characterize it into the foreseeable future.

The need that gave birth to the existing criminal procedure regime was institutionalized racism. Law enforcement was a key instrument of racial repression, in both the North and the South, before the 1960's civil rights revolution. Modem criminal procedure reflects the Supreme Court's admirable contribution to eradicating this incidence of American apartheid. Supplanting the deferential standards of review that had until then characterized its criminal procedure jurisprudence, the Court, beginning in the 1960's and continuing well into the 1970's, erected a dense network of rules to delimit the permissible bounds of discretionary law-enforcement authority. Although rarely couched as such, the unmistakable premise of these doctrines was the assumption that communities could not be trusted to police their own police because of the distorting influence of racism.

Date of Authorship for this Version

1998

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