Rehabilitating Criminal Justice: Innovations in Policing, Adjudication, and Sentencing
Author: Christopher Slobogin
Publisher: Cambridge University Press, 2025. 332 pages.
Reviewer: Guha Krishnamurthi | Spring 2025
In Rehabilitating Criminal Justice, Professor Christopher Slobogin embraces a comprehensive approach to identifying and rectifying the problems with the American criminal justice system. The book has twelve chapters addressing a variety of problems with the criminal justice system at the investigatory, adjudicatory, and post-conviction stages. His recommendations target better policing, more apt sentencing, and more efficient judging. In virtue of the book engaging such distinct problems, I did not see an explicit overriding thesis. That said, Slobogin offers a few overarching points about what rehabilitating the criminal justice system means.
Because the breadth of the book is extraordinary, I will focus on three problems Slobogin addresses that coincide with my own research interests: street policing, confessions, and judicial structure.
Chapter 1, Equality in the Streets, tackles the issues with street-crime policing. An animating concern in the chapter is the peril and harm associated with routine police stops, which have an outsized impact on black and brown people. (The epigraph of the chapter is Fats Waller’s statement, “My only sin is my skin. What did I do, to be so black and blue?”) Here, the book is at its best. Slobogin makes a persuasive case that routine police stops cause great harm because they can terrorize civilians and erode confidence in the criminal system. Slobogin then explains how this tendence has been exacerbated by the Supreme Court’s jurisprudence, in Terry v. Ohio, Utah v. Strieff, and Whren v. United States. Through these cases, the Court has set forth a Fourth Amendment doctrine that permits wide discretion by law enforcement to hassle civilians and invade their bodily privacy. Indeed, it has only gotten worse since—the Supreme Court, through a shadow docket order in Noem v. Vasquez Perdomo, ruled to allow racial profiling by law enforcement engaged in immigration raids.
Slobogin then observes that these rules on police stops are discordant with the Supreme Court’s Fourth Amendment doctrine on technological privacy. There, Slobogin notes that (in cases such as Kyllo v. United States, United States v. Jones, and Carpenter v. United States) the Supreme Court has been much more protective of personal technological privacy against government intrusion. Against that backdrop, he suggests that the Fourth Amendment of street policing be harmonized with the Fourth Amendment of technological privacy. Concretely, that would require doing away with Terry stops that are supported only by reasonable suspicion and instead requiring probable cause that a person is engaged in criminal activity to conduct a stop. Similarly, it would require probable cause to justify any concurrent search. Slobogin goes on to argue against exceptions for so-called “community caretaking” that have often allowed officers to circumvent probable cause and warrant requirements in both searches and arrests.
All of this is music to my ears. I share Slobogin’s concern with the gap between policing of the streets and policing of technological spaces. The doctrinal difference is unjustified, and the seeming justifications seem rooted in classism and racism. But the reality of policing in the streets suggests to me that Slobogin’s solution of equalizing the doctrines will make less impact than he suggests. First, as he points out, lots of Terry stops will actually meet the threshold of probable cause for seizure and search. But that just means we won’t have fewer such stops. And it was unclear to me what kinds of stops currently occurring under Terry’s rubric would not meet the probable cause standard—here, an explicit example would have helped. If the set of stops that would be excluded under the higher standard is small, then we won’t mitigate the animating problem.
Perhaps that set is large. If so, that has potential downsides too. Policing in the streets must reckon with something that policing of technology doesn’t—the ubiquity of guns held by dangerous people in perilous encounters. The arguments for Terry are that police need to be able to investigate and intervene, especially when people are armed and dangerous. As Peter Salib and I have argued, this is in serious tension with the Supreme Court’s recent Second Amendment jurisprudence.[1] Nevertheless, if police are disallowed from such Terry stops, there might be some implications for their ability to intervene in dangerous encounters with firearms. Perhaps that’s a bullet Slobogin is willing to bite. I think that is a justifiable position. But this issue regarding street policing remains open.
Chapter 3, Making Interrogation Transparent, takes on the issue of false confessions. The principal concern is that police interrogation has long been plagued by various types of police intimidation, coercion, and hard tactics that can lead to subjects of interrogation feeling compelled to confess—even to crimes that they have not committed. The Supreme Court dealt with this in Miranda v. Arizona, where it set forth some guidelines for the way police interrogations take place. Those guidelines principally included warning defendants that they have a right to remain silent, that anything they say could be used against them in a criminal proceeding, that they have a right to an attorney present during questioning, and that if they cannot afford an attorney, one will be provided to them by the government. Slobogin adeptly observes that Miranda’s promise in protecting defendants from police overreach has largely been unfulfilled. Because Miranda rights may be waived by defendants, police now spend their efforts in coercion and hard persuasion in first extracting a Miranda waiver and then use those same tactics to obtain the confession. In effect, this process revives the pre-Miranda woes of interrogation. Slobogin’s solutions to this quagmire are two-fold: first, we must reintroduce a robust voluntariness requirement for confessions and, second, we must constitutionally require taping of interrogations.
I think both of these fixes are welcome, but I am somewhat dubious they will significantly mitigate false confessions. The key issue is that there are often compelling reasons for defendants to falsely confess. One such reason concerns the disparities between a pleaded sentence and the potential sentence after a trial. Even an innocent defendant may not have confidence that they will be adjudicated so. If so, then it may not take any overt police wrongdoing to compel the false confession, and so nothing will be evident from the taping. Moreover, a decision to falsely confess will usually meet any voluntariness strictures, even if these are made more robust. (Incidentally, this is why I have called for an abolition of criminal confessions.[2]) Now, one response is that even if these fixes don’t fix it all, they will still make some progress. Maybe. But maybe police will alter their strategies, just as they did after Miranda. Slobogin does not leave these threads loose. He just addresses them elsewhere—for example, in discussing the problems of plea bargaining and our adversarial system of justice. But what emerges is that the solutions to any of these problems Slobogin has identified may not be isolated or separable. We’ll need everything to fix anything.
Against this backdrop, Slobogin proposes wide-ranging reforms to criminal adjudication in Chapters 7 and 11. Specifically, he contends that we should borrow from the inquisitorial model of adjudication in many European systems to endow judges with more authority in the trial. He also proposes that we have specialized criminal courts. In general, I think more robust involvement of judges—in holding prosecutors to the requisite standards—is key to reforming the criminal system. To wit, I think that plea bargains should be supported by a quantum of evidence that meets the beyond a reasonable doubt standard, and that judges must be empowered to ensure that this standard is met. But the “judge as inquisitor” model is a change that may be more fraught than friendly. As Slobogin notes elsewhere, judges are often appointed from the prosecutor class. Because of this fact, a genuine concern arises that this empowering judges as inquisitors may do more to erode defendant rights than to protect them. Of course, we could also reform our judicial selection. But if we did that, then we might not need to change the judicial role. As for the feasibility of these proposals, some questions linger. For example, with respect to reforming the federal courts, Slobogin starts with a premise that obvious solutions like expanding the bench are unlikely to make headway because of partisan gridlock. He postulates that Congress would be much more willing to consider separate, specialized criminal courts. But why would that be the case? Criminal cases are at least as important as other cases, raising just as many politically fraught issues that divide right and left. It seems highly questionable to me that we could circumvent the normal partisan rancor in reforming the whole federal criminal system. That aside, however, Slobogin makes compelling points about the value of specialization, in terms of promoting efficiency and fairness in speed of decision and judicially crafting better rules.
Slobogin ends the book in Chapter 12 with a discussion of Abolition versus Minimalism. The chapter, using Thomas Frampton’s The Dangerous Few: Taking Seriously Prison Abolition and Its Skeptics[3] as a foil, considers the arguments for criminal abolition and argues that criminal minimalism advances all the goals without the same pitfalls. I speak very much from Slobogin’s camp here, and I think he makes the case that criminal enforcement and prisons are inevitable given the needs to address natural human conflict. Acknowledging many of the criticisms of the criminal system that abolitionists put forth—indeed many of those animated the prior chapters of Slobogin’s work—he contends that minimalism is the way forward. This conclusion seems correct. Some level of policing and incarceration will be necessary for the most dangerous of criminals, such as serial killers or terrorists. But reducing the imprint of the criminal system is the way to reduce the associated suffering of the carceral state. Yet donning my abolitionist hat—and it is not my hat—I can see why this proposal is unfulfilling. It can appear light on details. What does it mean to shrink the criminal system without first defining what the system’s boundaries be? Consider a simple example: traffic laws. Under minimalism, the criminal law would (one presumes) generally not criminalize traffic violations. But of course we need people to follow the traffic laws. At some point, if someone shows continued intransigence in following the traffic laws, then the criminal law must enter. The question is when. That’s a tough question for the minimalist proponent. The minimalist can fairly respond that there is no categorical answer to such questions—it’s case by case, issue by issue. The point is that minimalism is a methodology and a commitment to shrinking the criminal system. That is what I apprehended as the underlying thesis of the book, the thread that unifies the many chapters. Slobogin dutifully and rigorously applies the minimalist program, using a data-driven approach with transparency on his normative commitments to arrive at concrete proposals that may reduce the negative impacts of the criminal system. That, according to Slobogin, is how we rehabilitate criminal justice.
Guha Krishnamurthi is a Professor of Law at the University of Maryland Francis King Carey School of Law.
[1] Peter N. Salib & Guha Krishnamurthi, Will Bruen Kill Cops?, 93 Fordham L. Rev. Online 11 (2024).
[2] Guha Krishnamurthi, The Case For the Abolition of Criminal Confessions, 75 S.M.U. L. Rev. 15 (2022).
[3] Thomas Ward Frampton, The Dangerous Few: Taking Seriously Prison Abolition and Its Skeptics, 135 Harv. L. Rev. 2010 (2022).
