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The Warren Court’s work is justly celebrated, for who would not support the right to counsel for indigent defendants or the requirement that an arrested person be informed of her right to counsel, including appointed counsel if she could not afford one? Nonetheless, it is useful to recall the regime replaced by selective incorporation, the method by which the Warren Court established its body of constitutional criminal procedure. In the early days of constitutional criminal procedure, the Supreme Court relied upon notions of fundamental fairness in the Due Process Clause of the Fourteenth Amendment to review state court criminal judgments. While it is true that those early decisions were too weak to engineer widespread reform of the state criminal justice processes, it is also true that fundamental fairness jurisprudence had notably positive features. In particular, fundamental fairness jurisprudence was replete with references to what I call a “public-regarding” vision of fairness. This notion importantly includes the public, as well as the defendant, in the articulation of constitutional values relevant to the fair operation of criminal justice. Moreover, the decisions articulating these views considered racial injustice as part and parcel of constitutional review. While the Warren Court’s approach led to reform of state criminal justice, that reform came at a cost. The Warren Court’s selective incorporation approach did not admit of the candid evaluation of various aspects and practices of the states that fundamental fairness analysis did. The focus on fundamental fairness captured society’s normative aspirations and provided a primer on fair treatment of citizens. To illustrate the potential of fundamental fairness analysis to address lingering vestiges of racial injustice in the criminal justice system, I focus on two problem areas that often implicate race—petit jury composition and selective prosecution claims.
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