Supreme Irrelevance: The Court's Abdication in Criminal Procedure Jurisprudence

95 Pages Posted: 22 Jun 2018 Last revised: 20 Jul 2018

Date Written: June 6, 2018


Criminal procedure is one of the Supreme Court’s most active areas of jurisprudence, but the Court’s rulings are largely irrelevant to the actual workings of the criminal justice system. The Court’s irrelevance takes two forms: objectively, on the numbers, its jurisprudence fails to protect the vast majority of people affected by the criminal justice system; and in terms of salience, the Court has sidestepped the major challenges in the United States today relating to the criminal justice system. These challenges include discrimination in stops and frisks, fatal police shootings, unconscionable plea deals, mass incarceration, and disproportionate execution of racial minorities. For each major stage of a person’s interactions with the criminal justice system — search and seizure, plea-bargaining, and sentencing — the Court develops doctrines that protect only a tiny percentage of people. This is because the Court focuses nearly all of its attention on the small fraction of cases implicating the exclusionary rule, trial rights, and the death penalty, and it ignores the bulk of real-world criminal procedure — searches and seizures that turn up no evidence of crime, plea bargains that occur outside of the courtroom, and the sentencing of convicts for terms of years — leaving constitutional rights unrecognized and constitutional violations unremedied. Consistently, each issue the Supreme Court neglects has a disparate impact on traditionally disadvantaged racial minorities. Together, this constitutes an abdication of the Court’s responsibility.

Keywords: criminal procedure, supreme court, death penalty, search and seizure, terry stops, plea bargaining

JEL Classification: K00

Suggested Citation

Jacobi, Tonja and Berlin, Ross, Supreme Irrelevance: The Court's Abdication in Criminal Procedure Jurisprudence (June 6, 2018). UC Davis Law Review, Vol. 51, No. 3, 2018, Available at SSRN:

Tonja Jacobi (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

Ross Berlin

Minnesota Court of Appeals #315B ( email )

25 Rev. Dr. Martin Luther King Jr. Blvd.
Saint Paul, MN 55155
United States
(651) 297-7832 (Phone)

Northwestern University - Northwestern Pritzker School of Law ( email )

750 N. Lake Shore Drive
Chicago, IL 60611
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Abstract Views
PlumX Metrics