Putting the Practice into Theory
55 Pages Posted: 25 Aug 2009 Last revised: 28 Sep 2009
Date Written: August 25, 2009
Modern criminal procedure, or especially at the Supreme Court level, rests upon a variety of untested regulatory assumptions about the ways in which the police do and ought to interact with the public. These regulatory assumptions depend upon underlying models of police administration that often determine the outcome of cases. Nonetheless, these assumptions are fictional, meaning that they lack any basis in descriptive criminology or social science. Yet they control the development of judicial and academic understandings of what policing is and ought to be about in our modern, fragmented, pluralist democracy. My prescription, at least for the academy, is that we should start examining the criminological evidence to determine whether and how it might support or undermine the Court’s social science speculations.
Constitutional law has always been somewhat marginal in the regulatory universe. Executive branch officials control most of what happens in the criminal justice system. They act according to departmental policies or institutional practices. Though they might have one eye on the courts and the Constitution, they are more concerned with norms of professional ethics or institutional organization. Attending to regulation tilts criminal procedure off its court-centered axis and reminds us just how ineffective we legal scholars may be in setting its terms.
My goal is to trace some of the ways in which criminal procedure doctrine engages with criminology, particularly in its more hermeneutic form. As a starting point, I consider Robert Weisberg’s and David Sklansky’s very different but deeply thoughtful discussions of the relation between criminal procedure, on the one hand, and criminology and social science, more generally, on the other.
Keywords: Sklansky, Weisberg, criminal procedure, criminology, social science, supreme court, democracy, politics, ornelas, whren, katz, miranda, hudson, leon, police, policing, Meares, Harcourt, Simony, penology, punishment
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