Against Professing: Practicing Critical Criminal Procedure
12 Pages Posted: 28 Aug 2018
Date Written: 2015
I continue to “teach” Criminal Procedure as one of my core courses. I do so while trying my best to stay true to my values and commitments, surfacing the tensions and deficits I have described, and using concrete examples to drive home the many disparities and dysfunctions that still exist in this country despite the development of decades of criminal procedure doctrine. I try to encourage students to embrace their roles and responsibilities both as representatives of clients and change agents in this deeply imperfect system—urging them to consider what it might take to be an effective advocate for individuals and communities within current structures while still working towards fundamental reform. I try to engage in these efforts through a variety of means—from the way in which I set forth expectations at the start of the semester, to creating norms for our community of learning, to the materials I include in our readings, to the ways in which I attempt to have students grapple with the applications and implications of constitutional doctrinal principles and other concepts—both inside and outside of our classroom. Of course, I do not purport to be pedagogically perfect. There are surely students who might prefer a different take on the course. And all of this does not resolve my internal dilemma or absolve me of some level of responsibility for the state of the world today, particularly as I continue to enjoy a relative position of privilege in an exclusive and elite institution of higher learning. But thus far it has provided somewhat of a middle path where I try to contextualize criminal procedural rules and consider current doctrinal principles while also questioning them. Where I push students to ask hard questions, speak truth to power, and encourage them to embrace their roles as the next generation of advocates who can continue to try to impact and improve institutions to ensure equal justice for all. And, to date, despite my internal struggle, a good number of students have reported that they appreciate my approach to the course. An approach I would characterize as different from professing or theorizing about the law—but instead practicing a form of critical criminal procedure. What follows are a few specific thoughts about, and examples from, this ongoing effort (and impasse).
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