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Race and Ambivalent Criminal Procedure Remedies

24 Pages Posted: 28 Jun 2012  

Brooks Holland

Gonzaga University School of Law

Date Written: 2012


This paper reflects the author's comments at the 2011 Race and Criminal Justice Conference at Gonzaga University School of Law. The paper posits that courts overall are ambivalent to remedying racial discrimination in criminal cases, even in cases where the defendant has proven an equal protection violation. For instance, courts remain ambivalent about whether the Equal Protection Clause includes the exclusionary rule remedy. Courts also apply traditional harmless error and preservation doctrine to avoid remedying proven equal protection violations during trial, at least when the defendant was the object of that discrimination. This paper argues that because of the unique gravity and harm of racial discrimination in a criminal case, including the clear culpability required to prove an equal protection violation, any such violation should necessitate a meaningful criminal procedure remedy.

To illustrate this kind of judicial commitment to equal protection remedies, this paper highlights the recent concurring opinion of Washington State Supreme Court Chief Justice Barbara Madsen in State v. Monday, 257 P.3d 551 (Wa. 2011). In this opinion, the Chief Justice argued that harmless error analysis should not apply to the proven racial discrimination by the prosecution in this criminal case. On the contrary, the Chief Justice concluded, “[r]egardless of the evidence of [a] defendant’s guilt, the injection of insidious discrimination ... is so repugnant to the core principles of integrity and justice upon which a fundamentally fair criminal justice system must rest that only a new trial will remove its taint.”

Keywords: race, criminal procedure, exclusionary rule, remedies, equal protection

Suggested Citation

Holland, Brooks, Race and Ambivalent Criminal Procedure Remedies (2012). Gonzaga Law Review, Vol. 47, No. 341, 2012. Available at SSRN:

Brooks Holland (Contact Author)

Gonzaga University School of Law ( email )

721 N. Cincinnati Street
Spokane, WA 99220-3528

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