The Real-World Shift in Criminal Procedure

Abstract

Traditionally, criminal procedure scholars have focused on the U.S. Supreme Court's constitutional doctrine. This doctrinal approach has dominated not only scholarship, but also teaching, and it continues to rule the leading casebooks. Younger scholars have begun to broaden criminal procedure scholarship to include non-judicial actors, state law, neglected topics such as plea bargaining and sentencing, and factors such as politics, race, and drugs. These changes have, however, been slow to hit the classroom, as until recently all the major casebooks focused on federal constitutional doctrine. Now, however, two more real-world casebooks are available: Marc Miller & Ronald Wright's Criminal Procedures, and Ronald Allen, William Stuntz, Joseph Hoffman, and Debra Livingston's Comprehensive Criminal Procedure. These two books enrich the mix of teaching materials, adding a welcome diversity of approaches to the existing mix. The doctrinal, constitutional approach is not bad, but these new books supplement this approach in rewarding ways. This review essay compares these two real-word casebooks with five leading doctrinal casebooks. It discusses how the newer approach promises to enrich teaching and scholarship as well. Part I considers the significance of looking beyond judges and case law to other actors and sources of law. Part II discusses Miller & Wright's shift of focus from federal law to state law and practice. Part III examines how factors beyond doctrine come into play: politics, race, and drugs. Part IV then looks at the broadening of focus beyond strictly criminal enforcement to civil and quasi-criminal procedures, such as forfeitures, commitment of sex offenders, and gang-loitering ordinances. Part V addresses the real-world shift away from jury trials toward the hugely important issues of charging, plea bargaining, and sentencing. This review concludes with thoughts about the significance of these changes for criminal procedure teaching and scholarship generally.