Does Liberal Procedure Cause Punitive Substance? Preliminary Evidence from Some Natural Experiments
Donald A. Dripps
University of San Diego School of Law
September 16, 2013
Southern California Law Review, Forthcoming
The late, and justly celebrated, William Stuntz made many contributions to the literature on criminal procedure. Among these is the arrestingly counter-intuitive thesis that the Warren Court’s pro-defense procedural rulings made a causal contribution to the “punitive turn” in the substantive criminal law. This article, contributed to a symposium on Criminal Justice at the Crossroads held at USC on June 7, 2013, and forthcoming in the Southern California Law Review, aims to test this thesis empirically.
Before the Warren Court, criminal procedure was not uniform across the states. Some were more liberal and some more conservative. The article argues that these differences set up natural experiments. We would expect the Warren Court’s decisions to provoke more powerful reactions in jurisdictions where local practice was more radically transformed. We can assess whether conservative jurisdictions increased the severity of the substantive law faster than counterpart jurisdictions with more liberal baseline procedures.
The article measures punitiveness according to an index of prisoners per homicide. It codes eight US jurisdictions as liberal or conservative in their pre-Warren Court criminal procedure. Generally similar jurisdictions with marked differences in their criminal procedure are then compared: liberal California with conservative New York, liberal Illinois with conservative Ohio, liberal Kentucky with conservative Maryland, and liberal DC with conservative Virginia. The data in general do not support Professor Stuntz’s claim that liberal procedural rulings encouraged more punitive substance.
Further study is warranted. The available evidence, however, does not suggest the existence of a general substance-procedure feedback loop that should cause judges, legislators, or law enforcement officials to hesitate to adopt otherwise justified reforms.
Number of Pages in PDF File: 32
Keywords: criminal procedure, criminal law, backlash, Stuntz
JEL Classification: K14, K41, K42
Date posted: September 18, 2013
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