Michael L. Smith (University of Oklahoma – College of Law) has posted Criminal Reform and Originalism’s Limits (Ohio State Journal of Criminal Law, forthcoming) on SSRN. Here is the abstract:
In the face of a harsh criminal legal system and unforgiving doctrine, some proponents of reform suggest that a turn to originalism may be warranted. Historical practices and founding-era understandings of the Constitution’s text, they argue, are inconsistent with modern treatment of those investigated, charged, and convicted. This Article argues that a turn to originalism is unlikely to make a substantial difference due to the Court’s selective application of originalism—a selectivity exacerbated in the criminal context by the Court’s focus on adjudicative considerations like federalism and deference to law enforcement. History also contains plenty of evidence supporting harsh treatment, and shifts focus away from immediate, profound harms current practices cause. While originalism may be a tool worth considering for advocates who must make every available argument, it may work best outside the courtroom to ground arguments for reform that might appeal to those otherwise inclined against change.
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