Trading (waiving) Rights

Emma Kaufman, ​The First Criminal Procedure Revolution. ​139 Harv. L. Rev. 543 (2025).

​The Abstract.

Today, it seems obvious that criminal defendants can waive constitutional rights. Plea bargains make up the vast majority of criminal convictions, and defendants routinely trade their rights — to indictment, to remain silent, to an attorney, to a jury — in exchange for a faster trial or a lesser charge. The modern criminal legal system is a regime of negotiated justice. Rights used to have more force. In the nineteenth century, the rules we now call criminal procedure rights were hard limits on judicial power. Defendants could not forfeit rights, and constitutional violations deprived courts of jurisdiction. But then, in an underappreciated and radical shift, courts changed their mind. One by one, rights became individual options, alienable upon consent. The rest is history: Grand juries declined, plea bargains soared, prosecutors became power brokers, and the system of mass processing was born. This Article recovers a lost chapter of American criminal procedure. It mines a trove of overlooked sources and traverses multiple disciplines to advance a simple claim: Between Reconstruction and the New Deal, courts transformed the rights of the accused. Long before the Warren Court revolutionized criminal procedure, there was a first revolution in constitutional criminal law. The story of that revolution reorients the field’s core assumptions, embarrasses modern doctrines, and expands the canon. It also advances our collective understanding of what it could mean to protect criminal procedure rights.

Cheers.