This Land Is My Land?

Abstract

Book review of Vagrant Nation by Risa Goluboff. New York, N.Y.: Oxford University Press. 2016. Almost twenty years ago, I wrote in a piece with Professor Dan Kahan that one of the central features of modern criminal procedure was its unrelenting hostility toward institutionalized racism.' Specifically, we argued that the Supreme Court in a series of cases such as Mapp v. Ohio, Miranda v. Arizona, Gideon v. Wainwright, and Papachristou v. City of Jacksonville, all decided in about a decade from 1961 to 1972, voiced a deep concern on the Court's part about the machinery of ordinary criminal justice in a context of very little federal oversight, especially in the South. Before the so-called Warren Court revolution, federal court oversight of state criminal justice was sporadic and shallow, advanced through case-by-case consideration of state criminal court adjudications as opposed to oversight and review of the police investigations that generated those convictions. The Warren Court's cases created what Kahan and I called a "muscular" doctrine8 designed to address the fact that, in a context in which African Americans were systematically disenfranchised and despised, it was impossible to expect the communities in which they resided to apply criminal laws to them evenhandedly.