The Failure of the Criminal Procedure Revolution
The title of this chapter seems inconsistent with the discussion that has preceded it. The criminal procedure revolution, at least from the perspective of its instigators on the Warren Court, along with their supporters, would seem to have been a huge success. Criminal procedure law was revolutionized and, despite the political reaction to the Warren Court, those significant innovations largely survived subsequent changes in Supreme Court personnel. Moreover, despite the inevitable failure of law reforms to alter behavior in the field fully, there is substantial evidence that police respect for constitutional rights has increased considerably. Police and federal law enforcement officials receive training in criminal procedure law, prosecutors put pressure on police to follow that law, and trial judges, at least in most states, regularly exclude evidence because of, and in order to deter, constitutional violations by the police. The "third degree" seems to have largely disappeared from the American scene.
At trial, all defendants are generally afforded a speedy trial, are represented by at least reasonably competent counsel, and have a right to a jury. Moreover, all states afford convicted defendants at least one appeal with free counsel and a transcript given to those who cannot afford to pay. Finally, federal courts, exercising habeas corpus jurisdiction as to all but fourth amendment claims,1 oversee this whole process to ensure that state courts are toeing the line.2 Even many conservative critics of the Warren Court, while still adamantly opposed to extending the exclusionary rule to the states, have grudgingly conceded that Miranda was not so bad 3 and seem to have accepted that the reforms of the criminal trial were, by and large, a good idea.4 I too agree with this list of achievements.
Despite this impressive list of substantive achievements, the crimi-