Introduction

The classic story of criminal procedure goes like this: Before the 1960s, courts mostly declined to regulate American criminal justice. The constitutional law of criminal procedure was composed of two lines of cases: search and seizure precedents emerging from Prohibition, which applied only to federal police; and a strand of due process doctrine that attempted, unsuccessfully, to limit racist practices in southern states.1 This state of affairs persisted until the Warren Court revolutionized criminal procedure by applying the Bill of Rights to states and fashioning prophylactic rules to constrain law enforcement.2 In the second half of the twentieth century, a new field was born.

There was, however, an earlier revolution in criminal procedure. This Article mines a trove of forgotten cases and traverses multiple disciplines to advance a simple claim: Between the Civil War and the New Deal, American courts transformed the rights of the accused. Under pressure from a modernizing legal system, federal and state courts revised the content of constitutional rights, laying the groundwork for an entirely new system of criminal adjudication.

The story of this revolution begins in the nineteenth century. Many of the constitutional rules we now call criminal procedure rights were once understood as threshold requirements for a criminal case to proceed. In this now-defunct framework, defects in the criminal process —for example, a jury of only eleven people or a trial in the wrong place — were problems of jurisdiction, and nothing a defendant did or said could authorize a court to hear a flawed criminal case.3 Criminal procedure rights were inalienable, and violations rendered a conviction void. The rules of criminal procedure were limits on judicial power.

At the turn of the twentieth century, those rules became rights. During the Gilded Age, American courts abandoned the idea that constitutional provisions concerning criminal prosecution constrained their power. Instead, courts redefined criminal procedure rules as protections for individual defendants. Venue provisions, the double jeopardy ban, the requirement that a defendant witness his own trial, the prohibition on self-incrimination, the grand jury, the jury trial — each became a “personal”4 right rather than a jurisdictional rule.5 Once these new rights existed, they could be waived, forfeited, and traded. Defendants could agree to move trials, forego trials, expedite charging, and bargain for lesser charges. Criminal procedure ceased to be a body of jurisdictional law and became a set of protections wielded by defendants, alienable upon consent. The rest is history: Grand juries declined, plea bargains soared, judges receded from criminal adjudication, prosecutors became power brokers, and a system of mass processing and negotiated procedure emerged.6

Criminal procedure’s conceptual shift from jurisdiction to rights had profound consequences for American criminal justice. This transition made modern criminal law possible. Yet the first criminal procedure revolution is understudied. While scholars have recognized some aspects of this story, the wholescale nature of the transformation of criminal procedure rights at the turn of the twentieth century has escaped attention, and legal scholarship on criminal procedure doctrine remains too distinct from historical work on the development of law enforcement institutions.7 This Article makes the case that the birth of modern criminal justice and the birth of modern criminal procedure rights went together, half a century before the Warren Court revolutionized the field.

This argument proceeds in three Parts. Part I sets the stage for the criminal procedure revolution. Before courts could transform criminal procedure rights, they needed the power to review criminal cases. Part I traces the development of the criminal appeals system and the evolution of judicial review in criminal cases over the course of the nineteenth century. It describes how state supreme courts got the power to generate binding criminal procedure doctrine and how federal courts gained authority to regulate state criminal justice systems. Part I then connects the expansion of the judiciary to the creation of new law enforcement institutions, including professional police, public prosecutors, and the criminal defense bar. Together, the rise of judicial review and the establishment of a criminal justice bureaucracy brought more courts into contact with defendants arguing that their convictions were unfair. Those encounters transformed the meaning of constitutional rights.

Part II identifies the pivotal moment when criminal procedure became the law of defendants’ rights. Drawing on primary sources and an array of cases — from Fourth, Fifth, and Sixth Amendment law, state constitutional law, the law of habeas, the law of federal courts, and the law of due process — Part II introduces readers to the jurisdictional theory of rights. That theory held that rights belonged to the public and, as a consequence, could not be waived.8 Criminal procedure rights were inalienable rules for legitimate criminal tribunals, which went to a court’s “power to condemn.”9

But then, in the waning decades of the nineteenth century, courts began to articulate a new law of criminal procedure, the one we know today. The central premise of this new body of law was that criminal procedure is a bundle of rights that belong to defendants, who can opt in or out of using them. Courts held that the jury trial guarantee could be waived in favor of bench trials.10 The grand jury requirement gave way to the practice of consensual charging by information. Venue and vicinage rules became individual protections, making it easier to move trials and forum shop. Courts concluded that the right to a public trial, the right to confront witnesses, and the right to counsel could be forfeited by the defendant’s conduct, conferring jurisdiction that would otherwise be lacking. Double jeopardy became an affirmative defense rather than an absolute bar to a second trial. Rights, in short, became options. And those options became bargaining chips.

This intellectual shift was a concerted act of constitutional reinterpretation. Over and again, courts decided that previously inalienable constitutional rights could be waived, either because those rights were really privileges or because defendants had lawyers to protect them. Courts invented a new theory of defendant autonomy, transforming existing constitutional doctrines. At the same time, late nineteenth-century courts also constitutionalized criminal procedure rules that they had previously derived from common law, statutes, or first principles. Criminal procedure became a more overtly constitutional body of law, and constitutional rights became personal shields against state power.

These were remarkable developments. Today, it seems obvious that a criminal defendant can forego a grand jury indictment, agree to a venue transfer, or enter a guilty plea in exchange for a lighter charge. But, in the late nineteenth century, there was an active debate about whether irregularities in the criminal process deprived courts of authority. Many courts held that they did.

Take this statement from the Michigan Supreme Court in 1868: “It is the duty of courts to see that the constitutional rights of a defendant in a criminal case shall not be violated, however negligent he may be in raising the objection. It is in such cases, emphatically, that consent should not be allowed to give jurisdiction.”11 Or this passage, written by soon-to-be–Supreme Court Justice12 Horace Lurton in 1909: “[A] constitutional requirement [is not] . . . a privilege which an accused may exercise or not, as he may elect . . . . The right to waive a right does not exist when the matter concerns the public as well as the individual.”13 Or these lines from Justice Harlan in 1904: “There are some things so vital in their character that they may not be legally done or legally omitted in a criminal prosecution, even with the consent of the accused.”14 “The infirmity . . . would be that the tribunal would be one unknown to the law . . . .”15 These opinions understand criminal procedure provisions as structural limits on judicial power. These sorts of statements appeared throughout cases in the Gilded Age and the early Progressive Era. By the New Deal, criminal procedure rights were rights in their modern form.

Part III distills lessons from the first criminal procedure revolution. It begins within the field, explaining how this overlooked moment in American doctrinal development recasts canonical cases and sharpens the critique of rights. Because rights can be forfeited, the shift from jurisdiction to rights introduced bargaining and bespoke process into criminal law. In practice, that development has undermined the legitimacy of the criminal legal system. Many of the most derided aspects of American criminal justice — excessive prosecutorial power, absentee judges and juries, mass processing — can be traced to the moment when criminal procedure became the law of rights.

Part III then moves beyond criminal law to make several broader points. First, the story of the criminal procedure revolution makes modern habeas law look anachronistic and confused. Current debates about habeas, which are really debates about federal oversight of state criminal justice, have ignored a basic and highly relevant shift in constitutional meaning at the turn of the twentieth century.

Second, a careful account of the evolution of criminal procedure doctrine undermines the dominant story of rights development in constitutional law. In particular, this Article challenges the conventional wisdom that debates about incorporation drove the individuation of rights. Constitutional theorists argue that the Bill of Rights became a set of individual protections after the Civil War as the Supreme Court decided which rights apply to states.16 But it was state courts, local law enforcement institutions, and the death of an old theory of jurisdiction that changed constitutional criminal law.

Third, the criminal procedure revolution was connected to wider shifts in American legal thought. Criminal law’s transition from jurisdiction to rights mirrored similar doctrinal developments in other fields. In administrative law, for example, courts were rethinking the relationship between due process rights and judicial power in order to justify agency tribunals.17 Across multiple domains, the divorce of jurisdiction and rights enabled a new vision of government premised on informal process and appellate judicial review. Part III connects the birth of criminal defendants’ rights to these larger legal trends. In doing so, it notes that the evolution of criminal procedure was integral to the rise of modern public law.

This Article’s basic ambition, though, is to show that criminal procedure is missing a chapter. In the late nineteenth century, courts fundamentally changed constitutional criminal law. Appreciating the scope and impact of that doctrinal revolution is critical if one wants to understand how American criminal justice came to be so big, so fast, and so unjust. The first criminal procedure revolution gave us the criminal justice system we have today. Revisiting it reveals a lost theory of the Constitution, one in which failures in criminal justice harm us all.

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* Sarah Herring Sorin Professor of Law, New York University School of Law. Thanks to Rachel Barkow, Will Baude, Adam Cox, Justin Driver, Barry Friedman, Andrew Hammond, Don Herzog, Lucy Kaufman, Alison LaCroix, Daryl Levinson, Wendy Moffat, Nick Parrillo, John Rappaport, Judith Resnik, Tom Schmidt, Sarah Seo, David Strauss, and John Witt for helpful conversations and feedback on drafts. This project benefited from workshops at Stanford Law School and the University of Toronto Faculty of Law. I am grateful to Clement Lin for tracking down historical materials, to an excellent team of students — Grace Dai, Claire Ewing-Nelson, Colin Heath, Micah Musser, Sam Orloff, and Danny Pita — for research assistance, and to the editors of the Harvard Law Review for superb editorial work.