Faculty Publications

Although there is broad consensus on what constitutes procedural due process in criminal cases, in courtrooms around the country, those ideals are often disregarded. In the wake of rising public attention to misdemeanors, be it through marijuana decriminalization or concern over unduly punitive fees and surcharges, a few scholars have pointed to theories explaining the gulf between rights and reality for low-level defendants. Yet none have expressly considered the impact of administrative rules made (or not made) at the courthouse level. This Article analogizes the courthouse to an administrative agency and borrows the doctrine of “bureaucratic drift” to explain how Supreme Court, legislative, and ethical norms of due process get fltered through a courthouse bureaucracy that ultimately leaves poor defendants without access to basic rights. The argument draws on fndings of a fve-week court observation project, which documented the daily injustices — in violation of established law — that individuals charged with low-level crimes experienced as defendants in a New York court. To remedy the drift, the Article proposes the appointment of an independent due process ombuds to oversee procedural justice court-wide.

Finding no valid policy or theoretical justification (apart from incapacitation) for this failure to adequately address the disjuncture between actual culpability and criminal liability, this article offers a new, comprehensive approach to cases charging defendants with mental retardation. Specifically, it proposes a new default rule, where non-violent cases against them would be presumptively dismissed. More serious cases charging violent crimes could proceed to trial with the standard mens rea requirements, but would require that any sentence imposed be the least restrictive alternative necessary to accomplish an articulable sentencing goal. This proposal redresses a major flaw in current criminal law doctrine, one which unjustly permits a finding of guilty minds among defendants whose true culpability may not be presumed.

When prosecuted as a strict liability offense, statutory rape precludes the fact-finder from considering the defendant’s state of mind altogether. The total exclusion of mens rea is an anomaly in criminal law, where a finding of guilt typically requires proof not only of an “evil act,” but also of an “evil mind.” Commentators have criticized the strict liability doctrine, but have ignored how the standard is especially unjust when applied to defendants with mental retardation.