A retrospective is also, however, a moment for analysis, introspection, criticism, and speculation. 5   See William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 YALE L.J. SCI. 303, 389 (2001) (noting that the Court has stated explicitly its desire to narrow the category of infractions to which fundamental fairness analysis can apply). Id. at 213.2005]                           EVERYTHING OLD IS NEW AGAIN 111The social science of criminal justice system legitimacy dovetails nicely with the origins of the Supreme Court’s constitutional criminal procedure doctrine. anomalous for [the] Court to ignore the clear evidence that members of disadvantaged groups generally bore the brunt of most unlawful police activity” 8 as well.
Beginning in the late 1920s and continuing throughout the 1930s, the Court began to interpret the Due Process Clause of the Fourteenth Amendment to invalidate state criminal convictions. at 458.OHIO STATE JOURNAL OF CRIMINAL LAW                  [Vol 3:105threshold showing for discovery. 64  See Barbara D. Underwood, Ending Race Discrimination in Jury Selection: Whose Right Is It, Anyway?, 92 COLUM. at 204. 30  287 U.S. 45 (1932). 54  See Jerold H. Israel, Freestanding Due Process and Criminal Procedure: The Supreme Court’s Search for Interpretive Guidelines, 45 ST. LOUIS U. L.J.

Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 CAL. 75  See Yick Wo v. Hopkins, 118 U.S. 356 (1886).OHIO STATE JOURNAL OF CRIMINAL LAW                  [Vol 3:105At first glance it might appear that my conclusion is less straightforward than the jury composition argument. L. REV. 61  It is the second part of Batson’s holding that is important. constitutional criminal procedure. These decisions were replete with references to what I call the “public-regarding” vision of fairness.3  Third, I will tie parts one and two together by exploring the implications for public legitimacy of the criminal justice system of the Warren Court’s choice to develop a code of criminal procedure through incorporation of the Bill of Rights as opposed to fundamental fairness. Kalven saw the positive influence of the civil rights movement on the Court’s First Amendment jurisprudence as counteracting the negative influence of McCarthyism on it. There is nothing about the argument that implies that the prosecutor, say, will concoct evidence to insure that the chosen offender will be prosecuted. . I think it is fair to say that the Court’s emphasis on formalism in its interpretation of the Bill of Rights distracted it from specifying normative constitutional values in the criminal procedure arena relevant to addressing racial injustice. In an extension of this work on procedural justice, Tom Tyler has demonstrated that individual perceptions of legitimacy are importantly connected to compliance with the law.22  Tyler points to normative bases for compliance rather than instrumental ones. While the Warren Court’s approach led to reform of state criminal justice, that reform came at a cost. While the values articulated in the opinions were weighty, the actual regulation of state criminal procedure at the end of the day was quite light. It is true that the fundamental fairness jurisprudence likely was not well-suited to produce rapid and widespread reform of state criminal justice practices compared to selective incorporation. L. REV.

This benefit of formalism, like the benefit of prophylaxis, may also be costly.
1267, 1272 (1996) (“[C]riminal trials are a form of civic theater that allows us to define who we are as a people . If you are not satisfied by our service, you can either request for refund or unlimited revisions for your order at absolutely no extra pay. 86  See id. 31  Id. 12  See Tracey L. Meares, Norms, Legitimacy, and Law Enforcement, 79 OR. Tyler and Lind, by focusing on group value, do divorce procedure assessment from its effect on outcomes. 70  See Underwood, supra note 64, at 740 (arguing that Justice White agreed with Justice Marshall’s due process holding but invoked federal law in order to limit the holding to race). 27  See id. The defendants had presented the district court with affidavits summarizing evidence that white offenders were prosecuted in state court rather than federal court, but the Court held that this evidence was insufficient to entitle the defendants to discovery.


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