62 Pages Posted: 4 Oct 2019 Last revised: 1 Dec 2020
Date Written: 2019
Across the United States, thousands of newly-arrested people disappear. They languish behind bars for days, weeks – or even months – without ever seeing a judge or an attorney. Yet, the Supreme Court requires more constitutional process for the seizure “of a refrigerator, . . . temporary suspension of a public school student, or . . . suspension of a driver’s license,” than it does for a person who has just been arrested and detained. A new arrestee has no clearly-established constitutional right to a prompt initial appearance procedure. As a result, there is no constitutional doctrine that guarantees her the right to appear promptly before a judge, to challenge the evidence that supports her arrest, to receive the prompt assistance of counsel, or to participate in an adversarial bail hearing.
Amidst our national conversation about the need for criminal justice reform, this Article is the first scholarly work to address the initial appearance crisis. Part I of the Article describes the epidemic of detention-without-process that plagues our criminal justice system. Part II explores the legal landscape that produced this crisis. It describes the Supreme Court’s commitment to a narrow Fourth Amendment jurisprudence and critiques the Court’s rejection of early-stage criminal due process rights. Part III marshals substantive and procedural due process doctrines that can vindicate the constitutional right to a prompt and thorough initial appearance procedure. Part IV proposes an agenda for research and reform of early-stage criminal proceedings.
Keywords: criminal justice system, criminal law, detention-without-process, due process right, due process of law, criminal procedure
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