The Racial Origins of Modern Criminal Procedure

The constitutional law of state criminal procedure was born between the First and Second World Wars. Prior to 1920, the Supreme Court had upset the results of the state criminal justice system in just a handful of cases, all involving race discrimination in jury selection. By 1940, however, the Court had interpreted the Due Process Clause of the Fourteenth Amendment to invalidate state criminal convictions in a wide variety of settings: mob-dominated trials, violation of the right to counsel, coerced confessions, financially-biased judges, and knowingly perjured testimony by prosecution witnesses. In addition, the Court had broadened its earlier decisions forbidding race discrimination in jury selection in ways that made it practically as well as theoretically possible to establish equal protection violations in that context. Altogether, the Supreme Court decided six landmark state criminal procedure cases during the interwar period. Four of these cases involved black defendants from southern states. This Article contends that the linkage between the birth of modern criminal procedure and southern black defendants is no fortuity. For the Court to assume the function of superintending the state criminal process required a departure from a century and a half of tradition and legal precedent, both grounded in federalism concerns. The Justices were not prepared to embark on such a novel enterprise in cases of marginal unfairness – where the police had interrogated a suspect a bit too vigorously or permitted defense counsel a little less time than optimal for preparing a case. On the contrary, the Court was willing to take this leap only when confronted with cases in which defendants were brutally tortured into confessing or the appointment of defense counsel in a capital case was a complete sham. Such flagrant injustices were not frequent occurrences in the United States during the 1920s and 1930s – except in the South, in cases involving black defendants charged with serious interracial crimes, usually rape or murder.