The Warren Court, Criminal ProcedureReform, and Retributive Punishment

I. IntroductionExtensive literature on the legacy of the Warren Court's criminal procedure decisions exists. Scholars have chronicled and assessed in considerable detail how a set of landmark decisions fared both in the Court's subsequent thirty-plus years of case law and in terms of achieving practical success in everyday criminal practice. Instead of attempting to supplement this vast and well-executed effort, I want to draw on the approaches of intellectual and social history to offer a broad thesis concerning the impact of Warren Court criminal procedure decisions on the dramatic transformation of the larger criminal justice system in the three decades since Earl Warren's resignation. I would like to suggest an understanding of how the Warren Court's legacy contributed to the current problematic state of our criminal justice system through an argument about how the Court's decisions contributed to larger social debates and political policy choices. My thesis, in short, is that Warren Court criminal procedure decisions - which largely (but not entirely) embodied a theme of strengthening individual rights and entitlements for the criminally accused1 - indirectly and perversely contributed to the harsh punitivism that characterizes criminal justice today. If that is true, it contributes to a broader thesis about the limited ability of courts to lead large-scale social change, and it also suggests how little courts should worry about the long-term effects of their decisions.II. Current Scholarship on Courts and Social ReformLet me situate this story about the effects of the Warren Court's decisions on the criminal justice system in the context of existing scholarship on criminal procedure and, to a lesser extent, on scholarship that assesses the ability of courts to effectuate substantial social change. One of my building blocks is Bill Stuntz's work on the interaction of criminal procedure and substantive criminal law.2 Stuntz has argued that improving criminal justice - key components of which are fair treatment of suspects and effective checks on abuse of police power - is difficult to achieve by a judicial focus on criminal procedure.3 Yet procedure, of course, was the focus of Warren Court jurisprudence on criminal justice.4 The Court's contributions to constitutional regulation of substantive criminal law are notably sparse and weak.5Other branches of government have in their control two powerful tools with which to respond to criminal procedure decisions. One is enforcement power, which crucially includes funding, but also includes day-to-day discipline, which makes procedural safeguards more or less meaningful.6 So, for instance, while Gideon v. Wainwright7 guarantees counsel to every defendant accused of a jailable offense,8 virtually no judicial regulation of how counsel are paid takes place.9 States can woefully underfund appointed counsel and substantially undercut the meaningfulness of Gideon.10 Or, funding issues aside, police departments still have considerable discretion in their regulation of the meaningful constraints found in Mapp v. Ohio11 ana Miranda v. Arizona,12 regulating unwarranted or pretextual searches13 and incriminating statements14 respectively.The second tool that the executive and legislative branches have to undercut criminal procedure is the power to define substantive criminal law.15 These branches can easily circumvent constitutional limitations on broad, vague criminal statutes16 by enacting numerous specific statutes, such as traffic codes including every conceivable traffic offense. The more conduct that the government criminalizes, the more frequently citizens commit crimes, and the more readily police have probable cause to stop and search citizens.17 If this is true, then we have reason to doubt that the Warren Court's efforts to improve criminal justice through criminal procedure protections yielded a system as substantially improved as the Court and its supporters initially hoped. …