University of Southern California

Does Liberal Procedure Cause Punitive Substance? Preliminary Evidence from Some Natural Experiments

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Article by Donald A. Dripps
From Volume 87, Number 3 (March, 2014)

During the 1960s, the Warren Court’s “criminal procedure revolution” imposed constitutional limits on criminal procedure in the states, limits that persist in some form to this day. During the 1980s, criminal justice in the United States took a “punitive turn” that resulted in the largest per capita prison population on the planet.[3] In this Article, I consider the claim, advanced by the late Professor William J. Stuntz, that a sinister causal relationship inhabits this striking paradox.

Professor Stuntz made many superb contributions to the scholarly literature. For me, and I suspect for many, his greatest contribution was to expose the always complicated, but seemingly always perverse, relationships between the procedural and the substantive sides of criminal law. One can discern two quite distinct views of the relationship in Stuntz’s work.

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