Power over Procedure

58 Pages Posted: 8 Mar 2021 Last revised: 2 Sep 2021

See all articles by Russell M. Gold

Russell M. Gold

University of Alabama School of Law

Date Written: August 5, 2021


American law should better protect people’s bodies from being caged than it should protect people’s money. And yet in so many ways it does the opposite. Instead of calibrating protections for defendants to the importance of the interest at stake, disparities between pretrial protections in federal civil and criminal procedure instead track differences in race and class between defendants in the two systems. Criminal defendants, for instance, can be locked in cages for two days on a mere accusation by police before a magistrate considers the validity of that deprivation. Civil defendants, by contrast, typically cannot be deprived of their property without first having a judge hear their arguments. Criminal defendants sometimes do not learn about the government’s evidence until the eve of or during trial—a trial that comes in scant few cases. Civil defendants would never be forced into such a trial by surprise but rather have numerous tools of formal discovery to compel evidence from the opposing party throughout the pretrial period. This Article argues that comparing federal criminal procedure to federal civil procedure across several substantive areas provides new and valuable insight into the systemic racism and classism woven into the fabric of U.S. law. Criminal defendants are disproportionately poor people of color, while civil defendants are often wealthy corporations whose executives are largely White; those wealthy civil defendants play an outsized role in developing civil procedure.

Trials are scarce in both civil and criminal procedure. But civil procedure—where wealthy White defendants are disproportionately powerful—offers significant pretrial protection for defendants that reduced the prevalence of trials. Criminal law has also made trials largely disappear but not by affording procedural protections to defendants. Rather, criminal law made going to trial much too risky for defendants. Nonetheless, instead of recognizing the lack of trials and shifting procedural protections pretrial, criminal law continues to rest its faith on mythological trials to protect defendants’ rights.

Keywords: criminal law, criminal procedure, civil procedure, systemic racism, institutional racism

Suggested Citation

Gold, Russell M., Power over Procedure (August 5, 2021). U of Alabama Legal Studies Research Paper No. 3799298, Wake Forest Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3799298 or http://dx.doi.org/10.2139/ssrn.3799298

Russell M. Gold (Contact Author)

University of Alabama School of Law ( email )

P.O. Box 870382
Tuscaloosa, AL 35487
United States
205-348-1139 (Phone)

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