The real-world shift in criminal procedure.

• Author: Bibas, Stephanos

RONALD JAY ALLEN, WILLIAM J. STUNTZ, JOSEPH L. HOFFMAN, & DEBRA A. LIVINGSTON, COMPREHENSIVE CRIMINAL PROCEDURE. (NEW YORK: ASPEN LAW & BUSINESS, 2001). PP. XXXII, 1598.

MARC L. MILLER & RONALD F. WRIGHT. CRIMINAL PROCEDURES: CASES, STATUTES, AND EXECUTIVE MATERIALS, (NEW YORK: ASPEN LAW & BUSINESS, 2001). PP. LI, 1866.

For four decades, criminal procedure scholars have focused on federal constitutional rulings by the Supreme Court. (1) These scholars have emphasized the Warren Court's creation of new federal constitutional procedures for defendants and the pendulum-swing back towards prosecutors under the Burger and Rehnquist Courts. (2) The main actors in this drama were appellate judges, retrospectively reviewing convictions after jury trials. Scholars have emphasized Supreme Court constitutional rulings on the exclusionary role and Miranda warnings, which pitted probative evidence in court against federal constitutional rights. Many articles still volley back and forth over the latest major Supreme Court decision on Miranda, United States v. Dickerson. (3)

This focus on Supreme Court doctrine continues to role criminal procedure, in both scholarly articles and casebooks. But a shift is afoot. In the last few years, a competing school of thought has begun to challenge the reigning view. A new, younger breed of scholars has emerged, focused much more on how these abstract rules play out in the real world. Scholars are writing about criminal-procedure topics such as politics (4) and race (5) that do not fit comfortably within the traditional doctrinal approach. Recent major articles have addressed charging decisions, (6) plea bargaining, (7) and sentencing, (8) topics that traditionally have drawn less attention than have jury trials. (9) A few more articles consider state law, not just the United States Constitution. (10) And scholars are paying more attention to other actors in the process-not just juries and appellate judges, but also police, (11) prosecutors, (12) and informants. (13) (By "real world," then, I do not mean the dry approach of a how-to manual. Rather, I mean the myriad sources of law, procedural variants, actors, incentives, and political and social forces that shape, constrain, and contextualize doctrine.) The literature is still dominated by doctrinal analyses of Supreme Court case law and discussions of juries, but the real-world approach is coming into its own.

This coming real-world shift, however, has been slow to hit the classroom. Many professors came of age around the shift from the Warren to Burger Courts and have been shaped by these Courts' doctrinal changes. They are used to teaching criminal procedure as federal constitutional law. Besides, students find it simpler to focus on a single source of law. Professors are more familiar with teaching from case law than from police manuals, prosecutorial guidelines, and social-science literature. Many professors never practiced criminal law or practiced long ago, before the era of guidelines sentencing and other recent developments. Furthermore, bar examiners routinely build criminal procedure questions around Supreme Court doctrine. Most importantly, perhaps, many have invested years in teaching out of criminal procedure casebooks that reflect the traditional emphasis on Supreme Court doctrine. Until recently, no other casebooks existed.

Now, however, a new generation of casebooks is available. Marc Miller and Ronald Wright's book, Criminal Procedures, breaks away from Supreme Court doctrine. Instead of treating criminal procedure as a monolith, it looks at the variety of approaches taken by states and even occasionally by foreign countries. It looks beyond case law to emphasize statutes, procedural rules, and police and prosecutorial policies. It heeds the role of politics and race and includes social-science material that discusses the real-world impacts of procedures. And it explores these real-world materials and issues through classroom problems and drafting exercises, not just traditional Socratic exploration of case law. (14)

Just last year, four leading scholars came out with another casebook along similar lines. Ronald Allen, William Stuntz, Joseph Hoffman, and Debra Livingston's book is entitled Comprehensive Criminal Procedure. Their book emphasizes Supreme Court cases, but it goes well beyond doctrine to consider policy and practice. Like Miller & Wright, they devote chapters to topics that traditionally get short shrift: charging, guilty pleas and bargains, and sentencing. And, like Miller & Wright, they are sensitive to real-world considerations, including the roles played by politics, race, drugs, and money. (15)

These new, real-world casebooks reflect the important shift that is underway in criminal procedure more generally. This review explores the shift in criminal procedure by comparing Miller & Wright and Allen et al.'s real-world casebooks with the more traditional casebooks that focus on Supreme Court doctrine. The traditional doctrinal casebooks still dominate the market: Kamisar et al. is used by fifty-six professors, White & Tomkovicz by forty, Cohen & Hall by thirty-eight, Saltzburg & Capra by thirty-seven, and Dressler & Thomas by thirty-four. (16) In contrast, Allen et al. is used by thirty-five professors and Miller & Wright by thirty-four. (17) The real-world books have grabbed a substantial fraction of the market in the last few years, but theirs remains a minority approach.

What I hope to show is that this nascent shift is of huge significance and is welcome. It promises to expand criminal procedure beyond ivory-tower constitutional law to focus on the real-world impact that millions of citizens feel every year. This shift is important not only for students, but for the professors who teach them. Scholarship often builds on classroom topics and insights, and the shift in teaching will reinforce the fruitful new direction in which scholarship is headed. This review explores how the various innovations of the real-world casebooks advance the field past the old debates over the Warren Court. It not only contrasts the old books with the new, but also explains the significance of each shift for teaching and scholarship more generally. This shift is producing a greater variety of approaches, forcing new teachers and scholars to reflect on these issues. And, though it is more complex to teach and less geared to the bar exam, the real-world approach offers much that the doctrinal approach lacks.

Though the new casebooks and approaches will supplement the old, I am not suggesting that they should supplant them. There is room in academia for a variety of approaches and courses, and this new approach will enrich and diversify the existing mix. Nor do I mean to suggest that casebook contents rigidly determine thought and courses. Professors can and do supplement casebook materials, adding materials and emphasizing perspectives not apparent in the books themselves. My thesis is more modest: The new real-world casebooks stimulate and provoke fruitful thought. They challenge scholars, teachers, and students to confront important issues that we have often overlooked.

Part I considers the significance of looking beyond judges and case law to other actors and sources of law. Part II discusses Miller & Wright's shift of focus from federal law to state law and practice. Part III examines how factors beyond doctrine come into play: politics, race, and drugs. Part IV then looks at the broadening of focus beyond strictly criminal enforcement to civil and quasi-criminal procedures. These include the use of civil and criminal forfeitures, civil commitment of sex offenders, and gang-loitering ordinances. Part V addresses the real-world shift away from jury trials toward the hugely important issues of charging, plea bargaining, and sentencing. This review concludes with thoughts about the significance of these changes for criminal procedure teaching and scholarship. It draws together the various strands into a manifesto for the new real-world scholarship and an agenda for further research. It ends with thoughts on how much further criminal procedure can go toward reflecting the real world.

1. SOURCES OF LAW BEYOND THE COURTS

   The first-year law school curriculum is still in the nineteenth century, the era of the common law. Contracts, torts, and property are common-law subjects, notwithstanding the occasional genuflection toward the Restatements or the Uniform Commercial Code. Criminal law is still predominantly about the common law, though the Model Penal Code does introduce a little bit of statutory interpretation. Even the constitutional law course is really about Supreme Court cases, as it spends little time on history, policy, empirical or textual analysis, or actors other than judges, (18) Civil procedure is about the only first-year course that requires detailed study of rules or a code. A few law schools are experimenting with balancing the first-year curriculum with a statutory or regulatory course. (19) But by and large, entering law students are indoctrinated to think of law as case law.

   Most criminal procedure courses extend this tradition into the upper-level curriculum. That is why we call them casebooks; we think of cases as the paradigmatic instructional materials. (20) Traditional doctrinal casebooks focus on reported appellate cases, which retrospectively review criminal convictions that have already occurred at trial. Table 1 summarizes the numbers of cases, statutes, and rules of criminal procedure excerpted by each casebook. I have counted only quotations amounting to a full paragraph or more, thus excluding paraphrases and brief quotations:

   As Table 1 reveals, apart from Cohen & Hall, the traditional casebooks are quite case-heavy. Kamisar et al. excerpt eight times as many cases as statutes and rules combined. (21) Saltzburg & Capra excerpt twelve times as many cases as statutes and rules...