Brooks Holland, Race and Ambivalent Criminal Procedure Remedies, 47 Gonz. L. Rev. 341 (2011)
A prominent scholar recently observed, “[t]he 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 has largely 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 again 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 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.