What Is Remembered (Book Review)
24 Pages Posted: 23 Dec 2019 Last revised: 13 Jan 2020
Date Written: December 20, 2019
Approximately four decades into mass incarceration, it is increasingly unlikely that contemporary scholars will remember firsthand a time when criminal law was not “in crisis.” At the same time, a sense of present crisis can create a temptation toward nostalgia. When we do think of criminal law’s history, we might imagine it as egalitarian, humane, or effective even if it never was any of those things. One of the many virtues of Sarah Seo’s Policing the Open Road: How Cars Transformed American Freedom is its effort to correct a specific type of nostalgia common among criminal procedure scholars—nostalgia for the Warren Court and its supposedly revolutionary efforts to discipline police officers. Seo tells an alternative story in which the Supreme Court repeatedly interpreted the Fourth Amendment to endorse police discretion rather than constrain it. Seo helps us see canonical Supreme Court decisions as accommodations of police authority rather than pronouncements of revolutionary change.
But Policing the Open Road offers its own story of revolution, or rather of radical transformation: it claims that the arrival of the automobile was a unique disruption that “transformed American freedom,” produced the modern police force, and eventually generated the regimes of racialized law enforcement all too familiar today. This review essay suggests reasons to doubt this story of automotive transformation. Though the nineteenth century is nearly absent from Policing the Open Road, histories of that era suggest that police discretion, and racialized law enforcement, arose well before the United States became an automotive society. And even in the twentieth century, the judicial endorsement of police discretion was likely less influenced by the specific technology of the automobile, and less blind to the prospect of racialized enforcement, than Seo suggests. It matters which way we tell the story, for the choices we make about criminal law in the twenty-first century will depend on our account of when and how criminal law’s problems originated.
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