Emma Kaufman explores how rules became rights and transformed US criminal justice
Plea bargains. Bench trials. Pleading the Fifth. Law students—and anyone who has seen Law and Order—will recognize these as familiar features of the US criminal justice system. But, as Emma Kaufman details in a recently published Harvard Law Review article, these now-routine practices were illegal for large parts of American history, and the birth of modern criminal justice has been widely misunderstood.
The standard story of American criminal justice starts in the early 20th century and focuses on the Warren Court, the revolutionary Supreme Court that invented the Miranda warning and extended the exclusionary rule. But, in “The First Criminal Procedure Revolution,” Kaufman, Sarah Herring Sorin Professor of Law, identifies an earlier, forgotten revolution in the history of criminal procedure.
“[M]any of the constitutional rules we now call criminal procedure rights were once understood as threshold requirements for a criminal case to proceed,” Kaufman explains in her article. “…Defects in the criminal process—for example, a jury of only eleven people or a trial in a wrong place—were problems of jurisdiction, and nothing a defendant did or said could authorize a court to hear a flawed criminal case. Criminal procedure rights were inalienable, and violations rendered a conviction void.”
This worldview imploded at the turn of the 20th century, when the jurisdictional rules that had once bound courts became personal rights that defendants could waive. “Rights once understood as belonging to the body politic—protecting communal interests, regulating judicial power, and therefore inalienable—came to be viewed as safeguards for specific defendants,” Kaufman writes. Empowered to assert these individual rights, defendants could equally waive, forfeit, or trade them—and that flexibility, Kaufman claims, came at an enormous cost.
“The invention of defendants’ rights was the foundation for modern criminal justice, including its uglier dimensions,” she writes. “[C]harging by information [rather than indictment], plea bargaining…forum shopping, conviction in absentia —in short, mass processing,” all grew out of the notion that once-ironclad bars to prosecution were optional. “Appreciating the scope and impact of that doctrinal revolution is critical if one wants to understand how American criminal justice came to be so big, so fast, and so unjust,” Kaufman writes.
In addition to her work in criminal law and procedure, Kaufman teaches and conducts research in administrative and constitutional law. She is also the Law School’s Vice Dean for Intellectual Life. We asked her to walk us through some of the background and findings of her latest publication.
The changes you describe to criminal procedure took place over decades. What makes you describe them as a “revolution”?
I use the term revolution because the shift to waivable criminal procedure rights marked a profound, lasting change in how American criminal justice works. As a practical matter, the rise of waiver was a turning point—the beginning of a new legal system built on bargains, deals, and mass processing of criminal cases. Nothing about how the criminal legal system operates today would make sense without the waiver of criminal procedure rights.
As a theoretical matter, the rise of waiver also marked the shift toward a new understanding of the Constitution. In the old paradigm, the one this article uncovers, criminal procedure rights belonged to and protected everyone. Rights were understood as inalienable rules about how legal institutions had to work. The first criminal procedure revolution transformed those communal, institutional rules into individual defendants’ rights. That’s a very different way of thinking about how to interpret and enforce constitutional guarantees.
I also use the word “revolution” to call to mind the Warren Court. Everyone knows the story of that revolution. And yet we’ve missed a whole, earlier chapter in the evolution of American criminal procedure.
What led you to this new understanding of the roots of today’s criminal procedure?
It started with a footnote! A few years ago, I wrote an article called “Territoriality in American Criminal Law,” which explored the erosion of geographic borders in the American criminal justice system. That article was about how and when criminal law started to seep across state lines—when state legislatures started criminalizing out-of-state conduct, police started coordinating across jurisdictions, states began transferring and trading prisoners, and so on. In the course of my research for that project, I discovered that venue, the constitutional right to be tried where a crime occurs, had once been a jurisdictional requirement but became waivable in the early 20th century. I thought to myself: became waivable?! Was jurisdictional? What does that mean, and did that happen to other rights?
I thought I might find one or two other lines of doctrine that worked similarly. But it turned out that an entire field had transformed from a set of jurisdictional rules into a body of law on individual rights. Over and over again, late-19th and early-20th century courts held that once-jurisdictional rights were really protections that belonged to individuals, who could choose how and whether to use them.
We’re talking about lots of rights here: the right to a jury trial; the right to be tried where a crime occurs; the right to a jury of one’s peers; the right to be present at your own trial; the right to an arraignment; the right to an indictment; the right to silence; the right not to be tried twice for the same crime. Each was jurisdictional, and each became a waivable, individual right between 1875 and 1930.
So, like many projects, this one began with a tiny thread that I just continued to pull.
Adam Cox, Robert A. Kindler Professor of Law, similarly focused heavily on developments in the second half of the 19th century to debunk prevailing views about immigration law, and you cite his work in your article. What is it about this period that has led it to be ignored or misinterpreted?
Actually, it’s a period everyone is obsessed with. Adam and I are currently working on a co-authored piece about how American public law changed between Reconstruction and the New Deal. That collaboration began when we discovered that we were both exploring the same ideas, in the same time period, in our respective fields.
As we point out in our new paper, it’s widely understood that the late 19th century was a revolutionary time in American law. Nearly every field of public law tells an origin story that begins at the turn of the 20th century, and in recent years, scholars have driven a resurgence of interest in 19th-century legal thought.
What’s odd, though, is that those stories tend to be siloed in separate fields. Constitutional scholars study the Lochner Court. Administrative law scholars study the foundations of the administrative state. Civil Procedure scholars study the constitutionalization of jurisdiction. Conservative scholars study the abandonment of general law and the decline of the rights-privilege distinction. These stories rarely intersect, and some fields, like criminal procedure and immigration, tend to get left out of the picture altogether. As we explain in our article, which the NYU Law Review will publish later this year, Adam and I think that all those isolated stories of change are connected by a common thread, a foundational shift from thinking about public law in terms of jurisdiction to enforcing public law through individual constitutional rights. Once you grasp that bigger story, conventional wisdom starts to come undone.
So, it’s not so much that this period has been ignored. Instead, I think this era has been splintered into fragmented disciplines, and that we’ve lost sight of important developments and have misinterpreted doctrines as a result.
It’s understandable how plea bargaining is indispensable for what you describe as the “mass processing” in our criminal justice system, but can you explain how other rights fit into the story?
Plea bargains are a nice example because it’s obvious that they make it easier and faster to process criminal cases. But the whole criminal legal system runs on the waiver of rights. You couldn’t have bench trials without waiver of the right to a jury trial. Charging is faster if defendants can agree to waive the grand jury. And the modern bail system only works if the right to be present at trial can be forfeited. Late 19th-century courts worried that, if the presence right were a jurisdictional rule, defendants could jump bail and “block their conviction[s]…forever.” So making presence alienable was key to the emergence of the bail bond industry.
But those are just examples. The deeper point is that criminal procedure rights evolved from inflexible rules into bargaining chips. Today, it’s totally normal to think that the process of criminal adjudication can be bespoke and negotiated, which also means quick and informal. If rights were inalienable rules about how criminal tribunals had to operate for criminal judgments to have the force of law, the criminal justice system would screech to a halt.
Your piece weaves together multiple legal and social developments shaping criminal justice—routinization of judicial review; evolution of habeas corpus doctrine; the rise of prisons, police forces, and professional cadres of prosecution and defense lawyers. Explain why you took such an interdisciplinary approach.
I think that conceptual changes in criminal law are inextricably linked to institutional changes in criminal law enforcement. The way we understand rights is connected to how we enforce them. Pivotal changes in state capacity—like the creation of appellate courts to review criminal cases, or the creation of prisons and police forces—didn’t just expand the government’s footprint; they also changed the content of the law. If you’re committed to the idea that doctrine and enforcement are linked, it seems weird to study criminal procedure rights without thinking about the institutional context that gave them life. So my method follows from a view about the relationship between the substance and the procedures of criminal law.
I’m also just a bit of a stranger to every field. I started my academic career as a prison ethnographer, and my interest in criminal law grew from my interest in prisons. Prisons pop up across the disciplinary structure of American law—they’re in criminal law, for sure, but if you want to understand prisons, you also have to study administrative law, federal courts, and constitutional law. As it turns out, you probably also need to think about civil procedure, which is often the foil to criminal procedure, and about immigration law, because the country uses its prisons to do immigration enforcement. You should probably also learn contracts given how much American punishment is outsourced.
The list goes on, and suddenly, disciplinary boundaries start to feel constraining. Having that experience with the study of prisons early in my career made me more interdisciplinary across the board, and it shaped the way I approach research questions. So you’re seeing a bit of my biography in my method, too.
For the uninitiated, your paper is full of fascinating historical facts—for example, that at the time of the American Revolution roughly half of the colonies prohibited criminal defendants from having lawyers. What are some things you learned that surprised you?
I hadn’t spent enough time studying the right to silence, so I was surprised that the Fifth Amendment prohibition on self-incrimination used to ban defendants from testifying, even if they wanted to. I was surprised what a huge, leading role state courts played in the evolution of constitutional criminal procedure, because the stories we tell focus so much on federal law. I was also surprised by how tame the Warren Court looks in light of 19th-century criminal procedure. That Court is supposed to have been radical and revolutionary, but its jurisprudence was nothing compared to the jurisdictional theory of criminal procedure rights.
Really, though, what surprised me most is the old way of thinking about criminal procedure rights. It seems so wacky and foreign to think that criminal procedure rights belong to everyone and only incidentally (and only sometimes) protect criminal defendants. It’s strange to think about rights as rules for legitimate government rather than as personal protections against the abuse of state power. My main goal was to unearth that lost approach to rights, which feels so new 150 years later.
This interview has been condensed and edited.
