George C. Thomas III * | 25.4 | Citation: George C. Thomas III, Racial Justice: The Failure of the Warren Court’s Criminal Procedure, 25 U. Pa. J. Const. L. 710 (2023).

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For seventy years after the Civil War Amendments were ratified, the Supreme Court sought to nudge Southern courts and legislatures toward racial justice. But the case-by-case messaging was largely lost on the relevant actors. In 1954, the Warren Court struck a systemic blow for racial justice in Brown v. Board of Education. State legal mandates that segregated public schools were unconstitutional. A few years later, the Court sought systemic solutions to racial injustice in the state criminal justice systems. Although reforms like requiring states to provide counsel for indigent defendants would benefit all races, this article argues that the Court saw Black Americans as particularly affected by injustices in state criminal justice system. From 1961 to 1968, the Court decided five landmark criminal procedure cases that sought to advance racial justice. The problem? States found “workarounds” for most of those guarantees. Defendants, including Blacks and other minorities, might be slightly better off today than they were in 1960, but only at the margin. Could the Warren Court have done better? Can courts do better today? The answer is a modest yes, at least as to some protections.

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* Rutgers University Board of Governors Professor of Law, Judge Alexander P. Waugh, Sr. Distinguished Scholar.