Power Over Procedure
64 Pages Posted: 8 Mar 2021 Last revised: 14 Jun 2022
Date Written: May 24, 2022
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 makes trials less necessary. 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
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