The Political Economy of Criminal Procedure Litigation

Criminal procedure has undergone several well-documented shifts in its doctrinal foundations since theSupreme Court first began to apply the Constitution'scriminal procedure protections to the states. This Articleexamines the ways in which the political economy ofcriminal litigation-specifically, the material conditionsthat determine which litigants are able to raise criminalprocedure claims, and which of those litigants' cases areappealed to the United States Supreme Court-hasinfluenced these shifts. It offers a theoretical frameworkfor understanding how the political economy of criminallitigation shapes constitutional doctrine, according towhich increases in the number of indigent defenseorganizations expand the Supreme Court's freedom toselect cases that frame constitutional issues in ways thatconform to the ideological preferences of the Court'sJustices.This framework exposes a potential, but heretoforeunidentified, link between the Warren Court's decision inGideon v. Wainwright and the relative conservatism ofcontemporary criminal procedure doctrine. Specifically,by mandating the creation of a vast number of state-subsidized organizations representing poor defendants,the Court's decision in Gideon weakened the power thatsuch organizations once had to constrain the SupremeCourt's criminal procedure agenda.

This Article thuscomplicates the traditional narrative of constitutionalcriminal procedure's doctrinal shifts-a narrative inwhich the liberal innovations of the Warren Court weresimply eclipsed by the decisions of later and moreconservative Courts-by attending to the economic andinstitutional conditions that underpin those shifts.