Constitutional Risks to Equal Protection in the Criminal Justice System

Abstract

This Note has examined the consequences of a shift in the equal protection context - a move from a traditional particularized harm perspective to a constitutional risk perspective focused on systemic harms. It has also acknowledged the significant remedial difficulties associated with constitutional risk, but by focusing on discretion as the source of most equal protection risks, this Note has proposed a moderate doctrinal change: discretionary safeguards. To be sure, this Note leaves the project substantially incomplete. Constitutional risk's focus on statistical evidence requires careful discussion of the pitfalls judges face in this area and of how they can develop expertise in response. Additionally, because one need not confine the constitutional risk perspective to equal protection, it may usefully be extended to inform other constitutional doctrines, such as facial challenges and prophylactic rules. In extending constitutional risk, however, one should remember that shifting to a risk-based view of constitutional law represents a genuine policy decision. Never have laws protected every individual against every risk - to do so is neither practical nor possible. Therefore, one must determine which risks are substantial enough to warrant a remedy. Even more crucially, one must decide if constitutional risk is a transsubstantive doctrine, or whether only some constitutional harms are serious enough to require a more systemic and nuanced look. All this remains for another day.