Judicial Drift

59 Pages Posted: 19 Jun 2020

See all articles by Elizabeth Nevins-Saunders

Elizabeth Nevins-Saunders

Hofstra University - Maurice A. Deane School of Law

Date Written: April 1, 2020


Although there is broad consensus on what constitutes procedural due process in criminal cases, in courtrooms around the country, those ideals are often disregarded. In the wake of rising public attention to misdemeanors, be it through marijuana decriminalization or concern over unduly punitive fees and surcharges, a few scholars have pointed to theories explaining the gulf between rights and reality for low-level defendants. Yet none have expressly considered the impact of administrative rules made (or not made) at the courthouse level. This Article analogizes the courthouse to an administrative agency and borrows the doctrine of “bureaucratic drift” to explain how Supreme Court, legislative, and ethical norms of due process get fltered through a courthouse bureaucracy that ultimately leaves poor defendants without access to basic rights. The argument draws on fndings of a fve-week court observation project, which documented the daily injustices — in violation of established law — that individuals charged with low-level crimes experienced as defendants in a New York court. To remedy the drift, the Article proposes the appointment of an independent due process ombuds to oversee procedural justice court-wide.

Keywords: administrative law, local courts, judges, due process, defendants, low-income, right to counsel

Suggested Citation

Nevins, Elizabeth, Judicial Drift (April 1, 2020). American Criminal Law Review, Vol. 57, No. 2, 2020, Available at SSRN: https://ssrn.com/abstract=3610813

Elizabeth Nevins (Contact Author)

Hofstra University - Maurice A. Deane School of Law ( email )

121 Hofstra University
Hempstead, NY 11549
United States

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