Race, Rights, and Remedies in Criminal Adjudication

Once upon a time, back before the Warren Court, criminal procedure and racial justice were adjacent hinterlands in constitutional law’s empire. In 1954, the fifth edition of Dowling’s constitutional law casebook contained one chapter on “procedural due process” in which six of the eight cases were about criminal justice, and three of those – Powell v. Alabama, Moore v. Dempsey, and Bailey v. Alabama – were as much about race as they were about crime. A few pages later, two slender chapters on the “national protection of civil rights” and “equal protection of the laws” contained seven and nine decisions, respectively, a substantial number of which were criminal cases. By 1965, the seventh edition of Dowling and Gunther contained a dramatically expanded chapter on “procedural rights in the administration of criminal justice.” Questions of civil rights and equal protection now appeared, not only in the section on individual rights, but also in the earlier, more prominently placed discussion of governmental power. But by 1975, in the ninth edition of Gunther, while civil rights issues were at the forefront of the discussion of governmental power, criminal procedure had disappeared entirely. As the preface explained, “[w]hat was once the fate of administrative law … has now become appropriate for the constitutional requirements of criminal procedure.” Although Powell, Moore, and Bailey remain in the table of cases, their text is long gone.