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June 30, 2018

"Supreme Irrelevance: The Court's Abdication in Criminal Procedure Jurisprudence"

The title of this post is the title of this new paper authored by Tonja Jacobi and Ross Berlin now available via SSRN. Here is the abstract:

Criminal procedure is one of the Supreme Court’s most active areas of jurisprudence, but the Court’s rulings are largely irrelevant to the actual workings of the criminal justice system.  The Court’s irrelevance takes two forms: objectively, on the numbers, its jurisprudence fails to protect the vast majority of people affected by the criminal justice system; and in terms of salience, the Court has sidestepped the major challenges in the United States today relating to the criminal justice system.  These challenges include discrimination in stops and frisks, fatal police shootings, unconscionable plea deals, mass incarceration, and disproportionate execution of racial minorities.

For each major stage of a person’s interactions with the criminal justice system — search and seizure, plea-bargaining, and sentencing — the Court develops doctrines that protect only a tiny percentage of people.  This is because the Court focuses nearly all of its attention on the small fraction of cases implicating the exclusionary rule, trial rights, and the death penalty, and it ignores the bulk of real-world criminal procedure — searches and seizures that turn up no evidence of crime, plea bargains that occur outside of the courtroom, and the sentencing of convicts for terms of years — leaving constitutional rights unrecognized and constitutional violations unremedied.  Consistently, each issue the Supreme Court neglects has a disparate impact on traditionally disadvantaged racial minorities.  Together, this constitutes an abdication of the Court’s responsibility.

June 30, 2018 at 03:02 PM | Permalink


I urge all law students to spend a half a day in the back of Traffic Court, run in accordance to the Rules of Criminal Procedure. Nothing they have learned about will be used. Nothing they see going on will they have learned about. Traffic Court will be the most common contact for the entire population with criminal procedure. I suggest law schools have a course in it. While there are 2 million prosecutions, there are 50 million traffic tickets. These take in $10 Billion. I estimated one traffic court made $20,000 an hour. The fees and hijinks had the violations of constitutional rights meter spinning at supersonic speed.

Posted by: Dsvid Behar | Jun 30, 2018 6:33:27 PM

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