Academic journal article Vanderbilt Law Review

The Troubling Influence of Equality in Constitutional Criminal Procedure: From Brown to Miranda, Furman and Beyond

Academic journal article Vanderbilt Law Review

The Troubling Influence of Equality in Constitutional Criminal Procedure: From Brown to Miranda, Furman and Beyond

Article excerpt

This Article identifies and critiques a view of the criminal-procedure clauses in the Bill of Rights that is revealed in Supreme Court decisions after Brown v. Board of Education. Professor Howe argues that the Court has gone astray in constructing these clauses by focusing on equality. He contends that the criminal-procedure clauses are better understood as discrete protections of individual liberty than as reflecting a unified theory or separate theories about equality. Building on this perspective, the Article proposes a reformulation of doctrine in varied realms of constitutional criminal procedure, including police -interrogation, capital sentencing, and administrative searches and seizures.

The Article also calls on a more general level for rethinking how judges should implement a call for equality as they regulate criminal procedure under the Constitution. The Fourteenth Amendment directs states to provide "equal protection of the laws" to all persons, a command that applies to the criminal process. However, equality is a derivative idea in that it always requires an external substantive standard for judging likeness and difference. …

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