The Coming Crisis of Criminal Procedure

Posted: 4 Aug 1998  

Dan M. Kahan

Yale University - Law School

Tracey L. Meares

Yale University - Law School

Abstract

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."

Suggested Citation

Kahan, Dan M. and Meares, Tracey L., The Coming Crisis of Criminal Procedure. Georgetown Law Journal, Vol. 86, No. 2, 1998. Available at SSRN: https://ssrn.com/abstract=112168

Dan M. Kahan (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

HOME PAGE: http://www.culturalcognition.net/kahan

Tracey Louise Meares

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-4074 (Phone)
203-432-4876 (Fax)

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