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Brooks Holland

Excerpted from: Brooks Holland , Race and Ambivalent Criminal Procedure Remedies, 47 Gonzaga Law Review 341 (2011-2012) (124 Footnotes Omitted)

A prominent scholar recently observed, The story of the development of our criminal procedure jurisprudence is largely a story about race. One therefore might expect a robust body of race-conscious criminal procedure doctrine inviting lawyers and judges to explore racial inequities in the criminal justice system. But quite the opposite exists: race largely has played a background role to race-neutral doctrine in the world of constitutional criminal procedure. As an explicit constitutional claim, race has been confined to equal protection violations under the Fourteenth and Fifth Amendments. Therefore, to argue that racial injustice necessitates a criminal procedure remedy, a defendant must prove intentional discrimination against him or her on the basis of race--a difficult story to tell.

Because of this demanding legal standard, one might expect to find clear criminal procedure remedies in place to sanction each and every proven equal protection violation. Yet, a fairly ambivalent picture of remedies exists. For example, the United States Supreme Court has not recognized an equal protection exclusionary rule, and several lower courts have rejected this proposed remedy. Many lower courts also have subjected racialized evidence and argument offered by prosecutors to traditional preservation and harmless error doctrine. As a result, equal protection violations, even if proven, often lack a meaningful criminal procedure remedy. If our criminal justice system is a story of race, lawyers will find little constitutional doctrine through which to tell this story in an individual defendant's case.

This paper theorizes that this framework reflects no accident in jurisprudence. On the contrary, courts appear committed to remedying equal protection violations in criminal cases when the violation harms an innocent victim, such as a juror during jury selection. But, when the equal protection violation affects only the guilty criminal defendant, many courts revert to a position of ambivalence--not outright disregard, but mixed feelings of ambivalence contributing to notably hushed tones in criminal courts on the subject of race. This judicial ambivalence, I will suggest, may reflect judicial deference to misguided utilitarian and moral premises about the role of race in our criminal justice system.

This paper .. .propose that courts instead should commit to remedying all equal protection violations in criminal cases, consistent with the nature and gravity of this wrong. To illustrate, this paper will highlight the concurring opinion of Washington State Supreme Court Chief Justice Barbara Madsen in State v. Monday. In Monday, Chief Justice Madsen argued that [r]egardless of the evidence of [a] defendant's guilt, the injection of insidious discrimination . . . is so repugnant to the core principles of integrity and justice upon which a fundamentally fair criminal justice system must rest that only a new trial will remove its taint. This paper concludes that only this approach properly will curb and sanction intentional discrimination in criminal cases, and ensure that the law engages the important and ongoing story of race in our criminal justice system.

. . .

This paper does not propose that consistent equal protection remedies in criminal cases would operate as a panacea to the problem of racial bias and disparity in our criminal justice system. On the contrary, this paper addresses the small number of cases where an equal protection violation can be established. Nor does this paper attempt to delineate the precise trial or appellate remedies necessary for every possible equal protection violation. Instead, I argue that the law should assure a meaningful criminal procedure remedy for proven equal protection violations that does not hinge on whether the remedy will deter future violations, or on whether the defendant preserved the violation and can survive harmless error analysis. Racial injustice denies a criminal prosecution of any semblance of justice. A criminal case must be cleansed of this taint.


. Assistant Professor of Law and Gonzaga Law Foundation Scholar, Gonzaga University School of Law.