Quasi-Inquisitorialism: Accounting for Deference in Pretrial Criminal Procedure

Police and prosecutorial activities that take place long before a criminal trial are frequently critical to, even dispositive of, the accuracy and reliability of case disposition. At the same time, the regulatory touch of constitutional criminal procedure in the pretrial realm is insistently light. Proposals to address actual or risked deficiencies in this arena have proliferated in recent years, exemplified by pushes for social-science-rooted investigative best practices, for broader defense access to evidence prior to trial, for more oversight in plea bargaining, and so on. But in the face of these critiques, broad pretrial discretion largely reigns. A prevailing explanation for this state of affairs is rooted in our putative preference for an accusatory rather than inquisitorial system of criminal justice. And the leading solutions on offer frequently urge at least a partial turn away from adversarial obsession to embrace more inquisitorial traditions. The central argument of this Article is that this prevailing account is incomplete, and that the gaps have real world consequences for criminal justice reform. The Article uncovers an additional and consequential strain in the doctrinal narrative, one that depicts the pretrial world as the very inquisitorial, Continental mode that is so roundly rejected in the context of adjudication. This “quasi-inquisitorialism” in turn enables the Court to construct a separate realm of prosecutorial and police bureaucracy, professionalism, and expertise that purportedly fills the gap in judicial oversight. In addition to offering a fuller explanation of the structure of the Court’s constitutional criminal procedure doctrine, this account aims for greater leverage for reform. The Article concludes by suggesting that exploiting this quasi-inquisitorial narrative might offer promising inroads—doctrinally, politically, or both—for reformed approaches to investigative oversight, pretrial discovery, and plea bargaining

Reading Taylor\u27s Tea Leaves: The Future of Qualified Immunity

Many observers of qualified immunity doctrine drew a sharp breath when the Supreme Court handed down Taylor v. Riojas in late 2020. The decision, reversing a grant of qualified immunity to prison officials sued under 42 U.S.C. § 1983, reflected a marked break in outcome and tone from the preceding decade of unwavering commitment by the Court to expanding the scope of qualified immunity\u27s protection to sued officials: it was a nearly unheard-of victory for a plaintiff, and it was delivered in an opinion that cautioned against applying qualified immunity\u27s clearly-established-law prong in a manner too protective of officials, rather than the opposite. The decision has prompted speculation among commentators as well as lower courts about the degree to and manner in which Taylor represents a shift in qualified immunity doctrine. This Article considers that question, but does so through the lens of not only the Court\u27s qualified immunity jurisprudence, but also the work of lower federal courts before and after Taylor. The Article posits that appreciating the full range of possibilities for qualified immunity\u27s post-Taylor future requires engagement with the non-trivial degree of hybridity among circuits in the stringency of qualified immunity, mediated by not only the variety of approaches to analyzing the substantive merits of qualified immunity claims, but also an array of procedural rules that feature in qualified immunity litigation. Against that backdrop, the Article sketches three plausible futures that might emerge in Taylor\u27s aftermath. In the least earth-shaking scenario, Taylor might be a one-off, an exceptional case that only serves to illustrate the muscularity of qualified immunity. A more far-reaching possibility is that Taylor signals a softening of the Court\u27s clearly-established law test, which could be accomplished through a variety of mechanisms—from adjusting the level of particularity required by the clearly-established-law inquiry, to less obvious means like tinkering with the legal sources eligible to clearly establish the law. Finally, a more far-reaching though less-determinate prediction is that Taylor might prompt greater experimentation with procedural rules—such as restrictions on interlocutory appeals, or limitations on pre-discovery dismissals—that might diminish the qualified immunity\u27s effects on constitutional litigation. To be sure, the Article does not offer odds on the accuracy of any one of those three possible predictions. Rather, the aim is to demonstrate the degree of hybridity that qualified immunity has featured and will continue to feature—perhaps to a greater degree—as the lower federal courts continue to be the primary interpreters and implementors of the doctrine. The analysis thus exposes qualified immunity as an important arena for considering the relationship between the Supreme Court and the lower federal courts, and, more practically, shines light on the array of doctrinal tools (often less visible in analyses that exclusively center the Court\u27s work) that those wishing to reform qualified immunity might add to their toolboxes

If You Would Not Criminalize Poverty, Do Not Medicalize It

American society tends to medicalize or criminalize social problems. Criminal justice reformers have made arguments for a positive role in the relief of poverty that are similar to those aired in healthcare today. The consequences of criminalizing poverty caution against its continued medicalization