The Definition of Suspicion in an Era of Modern Policing

Jane Bambauer, Hassle, 113 Mich. L. Rev. 461 (2015).

Every Fourth Amendment scholar is familiar with the concept of “individualized suspicion.” The classic example comes from Terry v. Ohio, where Officer McFadden watched two men walk up and down in front of a storefront numerous times, consult with another individual, and then return to checking out the storefront. The Supreme Court held that, while McFadden did not have probable cause for arrest, he had a “particularized” belief that the three men were up to no good and thus could stop them and, when they gave unsatisfactory answers about their activity, frisk them as well.

That type of case is often contrasted with what are sometimes called “suspicionless” searches and seizures. The classic example of that type of police action is the license or sobriety checkpoint that stops individuals who drive up to it. The Court has indicated that such seizures are permissible despite the absence of suspicion that any particular driver seized has an expired license or is drunk, as long as the police stop everyone who comes to the checkpoint or rely on neutral criteria in deciding whom to stop (such as whether the car occupies a pre-selected position in line). Continue reading "The Definition of Suspicion in an Era of Modern Policing"

Are Prosecutors the Constitution’s Gatekeepers?

Russell M. Gold, Beyond the Judicial Fourth Amendment: The Prosecutor’s Role, 47 UC Davis L. Rev. 1591 (2014).

This is a bad time for the police officers. Last year, a series of cases in New York federal court exposed the NYPD’s stop and frisk policy as unlawful and racially biased. Following the shooting in Ferguson and the death of Eric Garner in Staten Island, thousands took to the streets to protest. The prosecutors in these two cases were widely criticized as well for failing to obtain indictments against the officers. Many wondered whether the prosecutors were complicit in a system fraught with inequality and prejudice. Secretary of State, Hilary Clinton, responded that the criminal justice system is “out of balance.” In a new article, Russell Gold argues that we can help restore the reputation of the criminal justice system by implementing what he calls, “administrative suppression.”

Administrative suppression would require prosecutors to decline to use illegally seized evidence even if courts would rule the evidence admissible. Prosecutors, in other words, have a constitutional and ethical obligation not to use evidence seized in violation of an individual’s Fourth Amendment rights. In the past few decades, the Court has radically restricted the scope of the exclusionary rule, and as a result, illegally seized evidence is often admissible in criminal cases. Gold argues that these decisions only pertain to the judicial branch. Rather than exploit the increasingly weak remedy to obtain more convictions, prosecutors, in their role as arbiters of justice and agents of the executive branch, should respond by refusing to use the tainted evidence in their cases. Continue reading "Are Prosecutors the Constitution’s Gatekeepers?"

Democracy as a Cause of and a Solution for Hyper-Incarceration

Andrew E. Taslitz, The Criminal Republic: Democratic Breakdown as a Cause of Mass Incarceration, 9 Ohio St. J. Crim. L. 133 (2011).

One of the last articles written by the late Andrew Taslitz (known as Taz to his friends) was entitled The Criminal Republic: Democratic Breakdown as a Cause of Mass Incarceration. The piece is quintessentially Tazian. It brings together Taz’s concern for racial minorities and criminal defendants, his belief in the reformist potency of democracy, and his fascination with social scientific findings (including research on “happiness”!), in a provocative effort to tackle the single biggest problem in our criminal justice system today: mass incarceration. His prescriptions in the article—in particular his assertion that “populist, deliberative democracy” can be a way of softening the harshness of American criminal justice—are worth taking seriously.

As Taz described it, populist, deliberative democracy (or PDD) is not regular old democracy. Rather, in the criminal justice context it involves all “social groups,” including convicted offenders, in deliberations that take place in multiple venues, with the expectation that “compromise rather than domination” will occur. He contrasts this type of democracy with “raw populism” that is not deliberative and that tends to be based on less information about competing interests. Although Taz did not think PDD would by itself result in less reliance on incarceration, he does marshal some strong evidence that it could move the country in that direction. Continue reading "Democracy as a Cause of and a Solution for Hyper-Incarceration"

Crime, Surveillance, and Communities

Crime, Surveillance and Communities, 40 Fordham URB. L.J . 959 (2013).

Timing is everything. I started reading Crime, Surveillance and Communities in the midst of the unrest in Ferguson, Missouri. The community north of St. Louis was the site of civil unrest in the wake of the shooting of Michael Brown, an unarmed black teenager. I could say that Prof. Capers’ article, which explores the use of technological surveillance as a mechanism to police the police, is prescient. However, given the number of such shootings, especially those that have risen to national attention, I would instead describe the article as a thoughtful effort to assess how technology might be used to assist and address interactions between police and community members, especially interracial interactions. Let me explain.

Capers argues that because the Fourth Amendment does protect some actions in public from technological surveillance, reasonable privacy intrusions must be balanced with the public good. Thus, technological surveillance in public is legitimate only so long as the surveillance is reasonable. Capers begins by introducing the many ways in which surveillance technology is already being used to watch our public movement and activities, be it through video cameras, biometric technology, zoom and movement capabilities, license plate readers, car trackers, CCTV, facial recognition technology, or apps. All of these, he says, combine to amount to “warrantless mass surveillance.”1 Thus, the Big Brother possibility, and the Foucauldian panoptican, are already a part of our lives. (P. 964.) Continue reading "Crime, Surveillance, and Communities"

What Comes After Mass Incarceration?

The “grand social experiment” that is hyper-incarceration in the United States is coming to an end, and we need to be ready to reinvest correctional resources in more community-oriented programs. That, in a nutshell, is the message of The Punishment Imperative: The Rise and Failure of Mass Incarceration in America, by Todd Clear and Natasha Frost, well-known criminologists who have been writing about punishment practices for decades. Many of the general points made in this book will be familiar to criminal justice lawyers and professors who have paid any attention to the literature on punishment. But the book’s 200 pages of detail and its prescriptions will be intriguing even to those who know the field.

Here is the authors’ summary of research about the effects of this country’s four-decade obsession with putting increasing numbers of people behind bars for increasingly longer periods of time (Pp. 152–53):

  • “Longer prison sentences do not deter the people who receive them from crime; there is almost no relationship between the length of a prison stay and the likelihood of recidivism.”
  • “Going to prison does not deter; people who receive probation are no more likely (and may be slightly less likely) to recidivate.”
  • “Incapacitation effects of prison are small, primarily due to replacement.”
  • “Rehabilitation programs offered in prison are less effective than when they are offered in the community.”
  • Victims are no happier with the (more punitive) criminal justice system today than they were forty years ago.
  • Expanding the prison system has contributed to intergenerational criminality, broken families, problems in school, sexually transmitted diseases, teenage births, anti-conventional attitudes, depleted labor markets, racial inequality and crime.

In short, government policies such as truth-in-sentencing, mandatory minima, three-strikes laws, increased collateral consequences, and imprisonment after technical parole violations have not made communities safer and probably have aggravated the crime problem. Continue reading "What Comes After Mass Incarceration?"

How Much Information Can Government Collect to Protect National Security?

The recent revelations about the National Security Agency’s dragnet surveillance programs highlight three significant developments that have occurred in the national security domain in the past decade. First, the most significant foreign threats to national security are no longer nation-states but individuals armed with powerful weapons who operate independently of any country. Second, technology has vastly enhanced the government’s capacity to discover and prevent these threats. Third, technology has also both reduced individual privacy and conditioned people to surrender it without qualms.

These three developments, Simon Chesterman argues in One Nation Under Surveillance, mean that regulation of intelligence agencies needs to be rethought. While the traditional civil libertarian efforts to limit camera surveillance, data mining, biometric identification, and other types of intelligence gathering are “worthy,” he says, ultimately they are “doomed to failure because modern threats increasingly require that governments collect [such information], governments are increasingly able to collect it, and citizens increasingly accept that they will collect it.” Instead, Chesterman argues, governments should concentrate on regulating the use of the intelligence it collects, pursuant to publicly debated laws that provide a transparent framework for making decisions about how and when to disseminate the information obtained. As the subtitle suggests, this regime can be seen as a form of “social contract” in which citizens grant access to information about them in return for “a measure of increased security and the convenience of living in the modern world.” Continue reading "How Much Information Can Government Collect to Protect National Security?"

Toward Real Criminal Justice

William Stuntz, The Collapse of American Criminal Justice (Harvard University Press, 2011).

William Stuntz, who died last year, was the preeminent criminal procedure scholar of his generation.  His early work on criminal procedure doctrine was breathtakingly insightful, providing deep explanations of the Court’s decisions and new ways of thinking about the law of search and seizure, interrogation, plea bargaining and sentencing.  His recent book, The Collapse of American Criminal Justice, weaves together his earlier doctrinal perspectives with brilliant analysis of criminological data, legal and cultural history, and the sociology of criminal justice, all in an effort to explain why our criminal justice system suffers from unnecessary mass incarceration, horrendously long sentences, racially imbalanced charging and sentencing, and a host of other flaws.

Stuntz attributes the current state of affairs to a number of factors, not all of which are obvious.  He is particularly bothered by the loss of local influence over crime policies.  He argues that until the mid-twentieth century police, prosecutors, juries and judges were very responsive to the community and that, outside the South, this attention to local morés resulted in a relatively lenient, non-discriminatory punishment regime.  Today, in contrast, police and prosecutors are more distant from their polity, most cases do not go to trial (making them invisible to the public), and when cases do go to trial juries and judges have much less flexibility in imposing punishment, all of which contributes to more punitive outcomes. Continue reading "Toward Real Criminal Justice"

Reducing Reductionism

Donald A. Dripps, The Substance-Procedure Relationship in Criminal Law, in Philosophical Foundations of Criminal Law (Antony Duff & Stuart Green eds., Oxford University Press, 2011).

Because books chapters tend to get less exposure, scholars and policymakers might easily miss this provocative revisitation of the substance-procedure distinction in criminal cases.  Don Dripps begins his new look at this issue by recasting the traditional procedural dyad—usually dubbed inquisitorialism and adversarialism—into three distinct categories—rationalist, pluralist and reductionist.   For Dripps, rationalism, which comes closest to the usual view of the European continent’s inquisitorial process, is “the rational discovery of the historical facts and the logical application of the substantive law to the facts so found.”  Pluralism, more closely associated with the Anglo-American adversarial system, assumes that rationalism is just one of many values the criminal justice system might hope to achieve and generally not even the most important.   Reductionism is the idea that “the substance-procedure distinction is illusory” because the applicable procedural structure allows decision-makers to ignore or at least minimize the influence of offense definitions and sentencing rules. (Pp. 410-11).

Using these categories Dripps examines the oft-discussed phenomenon of convergence, the fact that criminal systems around the world are slowly moving toward one another, with European systems in particular increasing lay participation and the use of exclusionary rules.   From Dripps’ theoretical perspective, that movement is not surprising; rationalism and pluralism, he says, are much more compatible than is commonly thought. That is because either type of system will depart from a pure truth-finding mission if that mission “conflicts with the legality principle’s prohibition of extra-judicial institutional violence” or “conflicts with an extrinsic value that is very important and can be accommodated with minor damage to material proof.” (Pp. 422-23). Under the first exception, even the privilege against self-incrimination can be accepted by a rationalist to the extent it is understood as a means of ensuring that coercive interrogation practices do not become the principal means of gathering evidence.  Other evidentiary limitations—the journalist privilege, the ability of witnesses to claim a right to silence, the courts’ authority to exclude an alleged sex offense victim’s sexual history—all protect important interests, usually without preventing the state or the defense from getting at the truth in some other way, and thus might be acceptable to rationalists, as well as pluralists, under the second exception.  At the same time, pluralism’s commitment to all-lay decision-makers does not clearly undermine the search for truth.  And its willingness to exclude illegally seized evidence, which does compromise that search, is counter-balanced by the pervasiveness of plea bargaining, which is in part the result of exclusionary pressures and features an inquisitorial bureaucrat (the prosecutor) who is only rarely subject to an“appeal” (to the jury), thus providing further evidence of convergence. Continue reading "Reducing Reductionism"

Government Dragnets

All commentators agree that the Fourth Amendment’s second, “Warrant Clause”—providing that search and arrest warrants be based on probable cause and describe with particularity the place to be searched and person or items to be seized—was meant to do away with general warrants. The general warrant is still very much with us today, however. Without any individualized suspicion, homes and businesses are subject to health and safety inspections, school children must undergo drug testing, motorists are stopped at roadblocks and checkpoints, important documents maintained by banks, credit card companies and other entities are mined for data, pedestrians in our major cities are monitored by camera systems, and everyone’s personal effects are uniformly scanned and searched at borders, airports, and various other major travel hubs.

The Supreme Court has pretty much allowed all of this to go on without any constitutional restriction.  In the case of drug interdiction, roadblocks, and drug testing of pregnant mothers, it has declared that individualized suspicion is needed.  But otherwise the Court has either held that the Fourth Amendment does not apply because the government action is not a search (as with data mining) or concluded, in effect, that any government search and seizure program that avoids irrationality is permissible.  Many commentators have deplored this state of affairs and proposed a number of alternatives, usually either requiring some sort of individualized suspicion (which would probably put an end to all general searches and seizures) or adopting a variant of strict scrutiny analysis, which would require courts to determine whether the program is narrowly tailored to meet a compelling state need (and would involve some very difficult, and arguably improper, judicial calculations about programmatic costs and benefits). Continue reading "Government Dragnets"

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