The Coming Crisis of Criminal Procedure
Dan M. Kahan
Yale University - Law School; Harvard University - Edmond J. Safra Center for Ethics
Tracey L. Meares
Yale University - Law School
Georgetown Law Journal, Vol. 86, No. 2, 1998
This article predicts the imminent demise of certain prominent doctrines of criminal procedure. These doctrines were fashioned in the 1960's primarily to combat the use of discretionary policing to exclude African-Americans from the Nation's political life. The political power of African Americans has risen steadily, however, since the passage of the Voting Rights Act of 1965. Today African-Americans exert significant power in the Nation's inner cities. Many are now using their political strength to secure curfews, anti- loitering laws, and other forms of order maintenance policing, which they support as milder alternatives to severe prison sentences. Ironically, doctrines that were designed to counteract institutionalized racism are now being invoked to impede the efforts of minority communities to free themselves from rampant criminality -- itself both a vestige of racism and a potent barrier to the integration of minority citizens into the economic and social mainstream. A doctrinal regime so ripe with contradiction cannot long endure. This article proposes a new regime in which courts would defer to democratic evaluations of discretionary policing so long as it is clear that the community at large is meaningfully sharing in the burdens that such policing places on liberty. It uses this mode of analysis to defend curfews, gang-loitering laws, and other policies that make up the "new community policing."
Date posted: August 4, 1998
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