The and the Future of Criminal Justice in America. Edited by John T. Parry and L. Song Richardson. Cambridge: Cambridge University Press, 2013. 348 pp. $36.99 paper.The and the Future of Criminal Justice in America asks the question, is the future of constitutional criminal law in the United States? (p. 2). In seventeen chapters, the volume provides an array of responses by an outstanding collection of scholars to issues at the intersection of constitutional doctrine and criminal justice. In so doing, the volume's title invites an understanding of a single, unified object of study-the Constitution-directed towards something yet to be realized-the future-in which a governing system-criminal justice-might function in a specific place. But, what we discover in the pages that unfold is not one Constitution but a multiplicity of constitutional doctrines, often in significant internal tension, that are highly dependent on past political and interpretive decisions creating a fragmented, at times inconsistent, system. More than being trapped between past and future, in Hannah Arendt's phrase, we are trapped in a doctrinal present, on which the volume focuses unapologetically (p. 9) in its attempt to shed light on the current state of constitutional law so that we can better understand how we might intervene to shape the future. This is an ambitious volume that rewards careful study.Across a range of constitutional criminal procedure doctrines, the volume addresses familiar stories of constitutional failures with new insights and recommendations. A few examples will be illustrative. Though fundamental to the effective functioning of an adversarial system, as Stephen Bright explains, the right to counsel is in a crisis created by neglect, indifference, underfunding, and excessive workloads. Doctrines related to consent searches belie the underlying social reality, as Janice Nadler makes clear. Racial bias is deeply imbedded in doctrinal implementation of stop and frisk and other policing practices, as L. Song Richardson demonstrates. Fourth Amendment doctrine is focused on physical searches, but Christopher Slobogin argues that this doctrinal paradigm fails to protect against the growing use of technologically-enabled virtual searches. Richard Leo shows how Miranda warnings, and the doctrine on which they are based, fail to protect against use of false confessions. And in light of subsequent Supreme Court opinions undermining its efficacy, Emily Hughes argues that police have conflicting incentives to engage in interrogation practices outside of the Miranda framework. Acquiring additional, and exceptional, powers to combat the threat of terrorism leads to mission amnesia that alters ordinary criminal procedure, as Susan Herman explores, and according to Stephen Vladeck, leads to increased civilianization of military court jurisdiction over nonservice members and with expanded categories of offenses. In each of these varied cases, existing constitutional doctrines fall short, requiring either their reconsideration or new institutional development.At every turn, this volume illustrates how past political and interpretive decisions constitute a present that is described in these essays in roughly one of three overlapping ways: a state of crisis relative to particular consequences; a failure of ht between doctrine and social fact; or a change in institutional practice ungoverned by existing values. If we are to avoid giving too much power to a national security sovereign (p. 310) over criminal law enforcement authority increased by the domestic effects of transnational processes, we must take action through judicial and congressional checks on executive power. …
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Feb 20, 2023
Cassandra Philippon + 3
