Publications - 21/09/20

Ruth Ginsburg and the American Criminal Proceedings

On September 18, 2020, the global legal community lost Ruth Bader Ginsburg, one the most notable lawyers and judges of recent times. By the 1960s, the US municipalities and states had laws that made discriminatory distinctions against women and afro-descendants. Thurgood Marshall was a great advocate of  African Americans rights, while Ginsburg pursued her career defending women´s rights, in academia, as a lawyer, and as a judge.

In the month of her passing, it is worth going through the cases she worked as a lawyer and as Justice in the US Supreme Court. These cases, sometimes, sought the defense of men who, interestingly, were argued to be harmed precisely by unequal rules in the treatment of men and women.

In Durren v. Missiouri (1979), for example, defendant Billy Durren was charged with murder and contested the formation of a panel of judges, composed only by men, which would violate his right to a jury whose composition was reasonably represented by the various members of the community, based on a cross-sectional selection, in an alleged violation of the 6th Amendment of the United States Constitution.

In that state, jurors were selected from a list of voters. The seventy thousand people annually selected from such list received a letter with questions in order to determinate their eligibility for being a part of a jury. The questionnaire had two questions that were queried, the first one asked the person to indicate their gender, and the second question mentioned that if the person was a women and did no want to incorporate the jury, she could go straight to the end of the form and renounce that right. In addition, subpoenas for jurors had an indication that if the juror were a women and did not want to go to court, she could simply report her wish and inform her absence. If she did not show up, it was already understood that she did not wish to be a juror. These questions and this consolidated practice would favor the lack of female participation in the jury, even without any justification for that, being the cause of the low female representation in the juries (less than 15%).

The State Supreme Court understood that the right to a jury composed by a cross-sectional origin in society was intact despite these consolidated rules and practices. In her oral argument before the US Supreme Court, Ginsburg claimed that these rules and practices were only in effect because they reflected a certain way that women were perceived in society, lesser citizen than a men, and therefore should not be on juries. Rather than being a privilege for women, they were actually an impediment from women to actively participate in the administration of justice. The Court ruled in favor of Durren, applying a precedent that dealt with a similar matter. (Taylor v. Louisiana).

As a judge, until 2008, Ginsburg sentenced around 337 criminal law and criminal procedure law cases[1]. In 198 of them (votes written by her and votes that she joined the majority), she decided in favor of the defense. An example to be cited is Greenlaw v. Unites States (2008), in which she wrote the decision by the majority and voted for the unconstitutionality of the 8th Circuit Court of Appeals decision against the American adversarial system.

Michal Grennlaw was convicted of several crimes and the US District judge understood that the minimum mandatory sentence should not be applied to part of the convicted crimes, establishing a penalty less than the minimum mandatory standard, which would be an error in the application of the law at the time.

Greenlaw appealed for his overall sentence to be reduced. The Court of Appeals denied his appeal, but decided to revoke the decision and order the District judge to increase the sentence according to the minimum mandatory. At the Supreme Court, the decision established that the possibility of reversing plain errors ex officio by the Court of Appeals could not mean derogating the adversarial system and the premise that the State should file an appeal for a change of judgment.

The first case mentioned is a living proof of the argumentative strength and tenacity with which Ruth Ginsburg worked in her practicing years as a lawyer. The second case is an example of the search for perfection with which she wrote her opinions. In the month of her death, the memory of at least two cases in which she worked, as a lawyer and as a judge, is made by us in honor of the legacy she left to the legal work, which undoubtedly loses the liveliness of her professional example.


[1] Justice Ginsburg’s Gradualism in Criminal Procedure. Cristopher Slobogin. Ohio State Law Journal. 70:4.