In Locking Up Our Own, James Forman described the work of public defenders as “the unfinished work of the civil rights movement.” Nearly two generations after the Warren Court’s due process revolution—which was supposed to protect minorities and the poor in the criminal justice system—our country is grappling with mass incarceration (and mass arrests, according to recent scholarship that has shed light on the much larger proportion of misdemeanor cases that never end in imprisonment). It seems that not a day goes by without another story in the papers highlighting the themes of poverty, race, and criminal (in)justice.
In recent years, there’s been a reexamination of the due process revolution, especially as we’re confronting a carceral state with a prison population made up disproportionately of racial minorities and the poor. To explain how we got to this point, Linda Greenhouse and Michael Graetz argued in The Burger Court and the Rise of the Judicial Right that any progress that the Warren Court had made was undone by the subsequent Burger Court’s counter-revolution. By contrast, William Stuntz argued that the Warren Court had erred by creating procedural rights rather than establishing substantive rights. The technical nature of proceduralism, he maintained, worsened inequality in the criminal justice system.
I don’t disagree with the main contours of these accounts. But they share a premise that the Warren Court was indeed revolutionary and that the justices took sides in the “battle” between crime control and due process. Herbert Packer famously coined the “Two Models of the Criminal Process,” a paradigm that has deeply informed histories written on American criminal justice (see more here).
Much of my scholarship so far has focused on telling a different history. For example, one of the main arguments in Policing the Open Road is that twentieth-century jurists—beginning with Chief Justice Taft and including liberal justices on the Warren Court, not to mention Chief Justice Warren himself—embraced proceduralism in order to legitimize discretionary policing. Many midcentury jurists, and not just law enforcement advocates, argued that liberty and security were compatible. The perspectives of those who appreciated order and security while celebrating American due process have been overshadowed in the literature about the Warren Court.
One explanation for this oversight may be that the adversarial nature of criminal litigation can tend to overemphasize conflict. Another reason may be that those writing about the Warren Court themselves view criminal justice in battle mode. But it’s one thing to describe past historical actors as thinking within a dualistic framework and quite another for a historian herself to adopt that perspective. Making this distinction in my writing has been surprisingly challenging, in part because the opposition between crime control priorities and individual rights is entrenched in our understanding, perhaps even more so today than when Packer published his article in 1964.
As a result, there’s been a general over-emphasis in the literature not only on the dichotomy, but also on one side of it, the due process side. What I mean here is that many histories of twentieth-century criminal procedure focus on the landmark cases that have most advanced due process rights. And if we look only at cases like Miranda v. Arizona, Gideon v. Wainwright, and Mapp v. Ohio, then it makes sense that our current woes would lead us to conclude that these cases either got it wrong (Stuntz) or that later developments gutted them (Greenhouse and Graetz). Focusing on a limited set of cases makes it more difficult to see that our issues are not the same as those the Warren Court was trying to address, and that that might be the reason why Miranda, Gideon, and Mapp have not been, and may not be, the solutions to today’s problems.
So, what did midcentury reformers, lawyers, and judges see as problems in the criminal justice system? How did the Warren Court think its criminal procedure decisions would solve those problems? What were the justices hoping to accomplish? Did they think they were starting a revolution?
Because I offer my answers to these questions in Policing the Open Road, I’ll end this post with what it doesn’t tackle. The book focuses on the Fourth Amendment cases that expanded the police’s powers, so the Court’s landmark cases on due process receive fuller treatment in “Democratic Policing before the Due Process Revolution.” This essay offers a theory for synthesizing the Warren Court’s Fourth, Fifth, and Sixth Amendment jurisprudence by examining how midcentury jurists understood due process as a democratic constraint on the police. It took me years to finally realize that their concept of due process was not the same as my concept of due process.
Once I was able to set aside my own entrenched understandings, it became clear that the midcentury idea of due process was not intended to constrain discretionary policing. No wonder, then, that the Supreme Court’s criminal procedure cases have done little to stem the imprisonment crisis. In fact, by sanctioning police discretion, they’ve done more to facilitate the buildup of our carceral state.