ARCP Fifty-Second Edition Preface: Tucker Carrington

by Tucker Carrington

The title alone—“Annual Review of Criminal Procedure”—plants a flag. It is not conditioned. There are no caveats. It swings for the fences. Referring to it as merely “authoritative” seems kind of shabby. At close to 1,300 pages and footnoted to within an inch of its life, it could well be the print embodiment of sui generis. Upwards of 11,000 copies are produced and distributed each year. Judges read and refer to it. So do prosecutors and defense attorneys. Pro se litigants—many of them prisoners—rely on it. In a pinch it could double as a doorstop. Which begs the question: Why spend the next few pages discussing its shortcomings? After all, most are baked in. Its yearly publication date, for example, coincides with the exact start of its obsolescence. But its most prominent shortcoming is worth some time. It’s also built in. But it’s less like a minor-flaw-not-of-its-own-making and more like a tragic one. Think of it as the inevitable result of its doomed mission: documenting the law as it is, not necessarily as
it should be.

Sometimes the law as it is and the law as it should be are one and the same; other times they’re more like overlapping Venn diagrams. Often, they are neither. Sometimes the law as it is can be settled. Other times not. Sometimes it’s correct; often it is flawed. Occasionally it is just; often it isn’t. The law as it should be is both more static than the law as it is, but also more elusive. Static in the sense that what is just and true can be envisioned and articulated; elusive, because the legal path to getting there is often ill-defined, dimly lit. Until the day that it’s not. To get to that place—to truth, to justice, to the law as it should be—“we need all angles, all distances, all perspectives,” U.S. District Court Judge Carlton W. Reeves recently observed. Footnote #1 content: Honorable Carlton W. Reeves, Defending the Judiciary: A Call for Justice, Truth, and Diversity on the Bench, Prepared Remarks upon Receiving the Thomas Jefferson Foundation Medal in Law 3 (Apr. 11, 2019). “[W]hat Judge A. Leon Higginbotham called ‘a multitude of different experiences.’ That is what justice requires.” Footnote #2 content: Id. (quoting LINN WASHINGTON, BLACK JUDGES ON JUSTICE: PERSPECTIVES FROM THE BENCH 11 (1994) (interview with Honorable A. Leon Higginbotham (Oct. 20, 1993))).

Continue reading the 52nd Preface.