•  
  •  
 

Publication Date

2011

Abstract

Criminal procedure has undergone several well-
documented shifts in its doctrinal foundations since the
Supreme Court first began to apply the Constitution's
criminal procedure protections to the states. This Article
examines the ways in which the political economy of
criminal litigation-specifically, the material conditions
that determine which litigants are able to raise criminal
procedure claims, and which of those litigants' cases are
appealed to the United States Supreme Court-has
influenced these shifts. It offers a theoretical framework
for understanding how the political economy of criminal
litigation shapes constitutional doctrine, according to
which increases in the number of indigent defense
organizations expand the Supreme Court's freedom to
select cases that frame constitutional issues in ways that
conform to the ideological preferences of the Court's
Justices.
This framework exposes a potential, but heretofore
unidentified, link between the Warren Court's decision in
Gideon v. Wainwright and the relative conservatism of
contemporary criminal procedure doctrine. Specifically,
by mandating the creation of a vast number of state-
subsidized organizations representing poor defendants,
the Court's decision in Gideon weakened the power that
such organizations once had to constrain the Supreme
Court's criminal procedure agenda. This Article thus
complicates the traditional narrative of constitutional
criminal procedure's doctrinal shifts-a narrative in
which the liberal innovations of the Warren Court were
simply eclipsed by the decisions of later and more
conservative Courts-by attending to the economic and
institutional conditions that underpin those shifts.

Download

Share

COinS