Tuesday, February 28, 2012

The Unintended Longer Term Effects Of The 1960s Warren Court's Expansion Of Criminal Defendant Procedural Rights

An interesting summary and review of the book, "The Collapse of American Criminal Justice"by William Stuntz and published by Harvard University Press.

From Boston.com (reprinted from The Boston Globe), "Where American criminal justice went wrong" by Leon Neyfakh:
But as Stuntz saw it, the Warren Court’s reforms had another, far less obvious effect: They created new incentives that changed the way defense lawyers and prosecutors did their jobs. Stuntz described it as a chain reaction, set off by the fact that the court had focused all its efforts on procedure, and had failed to impose any substantive limits on what legislators could criminalize and the punishments they could impose. The result was that defense attorneys--especially overworked public defenders--realized they could score easy victories for their clients by getting charges dismissed on procedural grounds; legislators, in turn, reacted by criminalizing a much broader range of activities and imposing harsh minimum sentencing requirements, which prosecutors could use as leverage to win guilty pleas.

“He [Stuntz] suggested that the question of guilt or innocence had been lost in the shuffle,” said Yale Kamisar, professor emeritus at the University of Michigan Law School, who is considered the intellectual godfather of the Warren Court’s rulings. “The way the system worked, it wasn’t really the dominant thing anymore. ”
"It is the lawyer’s conceit to believe, on some level, that if you can get the procedure to be perfect, that will ensure that the results will be perfect," said Joseph Hoffmann, a professor at the Indiana University Maurer School of Law, who has known Stuntz since the two of them clerked together on the Supreme Court. "It’s the way most lawyers look at the world....They would say procedural justice is how you get to substantive justice."

Stuntz believed one needed only to look at the extraordinary racial disparity in America’s prisons to know that notion was wrong. And it was this belief that caused him to take a position that truly distinguished him from his fellow conservatives: that America’s higher courts shouldn’t just restrict themselves to procedural doctrine, but should think instead about the substance and the effects of laws, and be willing to strike them down if they are not enforced fairly.

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