Dubber on the Criminal Process in the Dual Penal State

Markus D. Dubber, University of Toronto, has Criminal Process in the Dual Penal State: A Comparative-Historical Analysis, which appears in the Oxford Handbook of Criminal Process:

This paper is about a way of thinking about criminal process, with bits and pieces of criminal process making an appearance for illustrative purposes. Actually, it’s about two ways of thinking about criminal process, from parallel perspectives that correspond to two modes of state governance, law and police, characteristic of the law state (Rechtsstaat) and the police state (Polizeistaat), respectively. Using comparative-historical analysis, this chapter, locates the study of criminal process within the two-track project of critical analysis of penal power in the modern liberal state as penal law and penal police: the dual penal state. Illustrations include lay participation, plea bargaining, the legality principle, habeas corpus, and possession offenses, among others.