Elizabeth Nevins-Saunders (Hofstra University – Maurice A. Deane School of Law) has posted Judicial Drift (American Criminal Law Review, Vol. 57, No. 2, 2020) on SSRN. Here is the abstract:
Although there is broad consensus on what constitutes procedural due process in criminal cases, in courtrooms around the country, those ideals are often disregarded. In the wake of rising public attention to misdemeanors, be it through marijuana decriminalization or concern over unduly punitive fees and surcharges, a few scholars have pointed to theories explaining the gulf between rights and reality for low-level defendants. Yet none have expressly considered the impact of administrative rules made (or not made) at the courthouse level. This Article analogizes the courthouse to an administrative agency and borrows the doctrine of “bureaucratic drift” to explain how Supreme Court, legislative, and ethical norms of due process get filtered through a courthouse bureaucracy that ultimately leaves poor defendants without access to basic rights. The argument draws on findings of a five-week court observation project, which documented the daily injustices — in violation of established law — that individuals charged with low-level crimes experienced as defendants in a New York court. To remedy the drift, the Article proposes the appointment of an independent due process ombuds to oversee procedural justice court-wide.