Rights Translation and Remedial Disequilibration in Constitutional Criminal Procedure
70 Pages Posted: 18 Aug 2009 Last revised: 7 Apr 2010
Criminal procedure rights are widely understood both as individual constitutional guarantees and as conduct-regulating norms, enforcement of which guides the behavior of criminal justice actors. This regulatory dynamic of constitutional criminal procedure flows from both criminal and civil litigation, and as a consequence criminal procedure rights are shaped and adjudicated in recursive remedial regimes. Little notice has been paid, however, to the fact that the contours of criminal procedure rights are not consonant across the criminal and civil remedial regimes. Instead, courts in civil actions reshape criminal procedure doctrine in a manner that erects new, conflicting, and often more lenient conduct norms for law enforcement.
This Article contends that this reformulation of recursively litigated rights is not accidental but rather flows from the role of remedial context in shaping constitutional doctrine - a role that is brought into complicated relief when adjudication of a right spans remedial realms. Drawing from emerging schools of thought in constitutional implementation scholarship, the Article provides a thick description of the problems of cross-remedial adjudication in criminal procedure, focusing in particular on how unprincipled or incoherent approaches undermine the regulatory force of constitutional criminal procedure. The Article then proposes and applies a framework of 'rights translation' to ameliorate these deficiencies. While rights translation in criminal procedure involves certain unique remedial and systemic dynamics, the model of adjudication developed in the Article promises to illuminate other cross-remedial arenas of constitutional adjudication.
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