More on the separation of criminal law (and procedure) from "constitutional theory"

Sandy Levinson

I want to elaborate some on Mark Graber's extraordinarily incisive and important post on why "constitutional theorists" are obsessed by, say, Obergefell and have almost literally nothing to say about Ferguson.  With regard to the self-conscious group of "constitutional theorists" in the legal academy, I think it's fair to say that extremely few are in fact interested in issues raised by the criminal justice system, save, of course, for such issues as the validity of criminalizing "hate speech" or abortion, etc. or, on occasion, capital punishment.  TWith regard to "constitutional criminal proceure," I think it's accurate to suggest that only Akhil Reed Amar, among "major constitutional theorists," has written extensively about the subject; his views are typically interesting and idiosyncratic.  Frankly, I have no idea to what extent they have been influential among the "criminal procedure" community.

My impression is that relatively few people who teach "constitutional law" also teach "criminal procedure" (just as relatively few, for that matter, teach copyright as well as First Amendment--largely devoid of copyright--or property law--and, therefore, zoning and eminent domain).  Perhaps the two courses (of "constitutional law" and "constitutional criminal procedure) were once joined together in the days before the explosion of the domain of "constitutional law"--and, for that matter, "constitutional criminal procedure" after "incorporation"--after World War II and, particularly, the heyday of the Warren Court.  It now takes so much time to teach the now-standard subject matters of introductory constitutional law courses that "we" happily cede coverage of the Fourth and Fifth Amendments to our colleagues who are interested in them.  They are, obviously, very able people, but relatively few get caught up in the great "methods of interpretation wars" that constitute too much of the subject matter of "constitutional theory."

Constitutional law casebooks--including the one that I co-edit with Jack, Akhil, and Reva Siegel-- give very scant attention to criminal procedure matters.  Substantive criminal law gets more attention insofar as we a significant number of pages on  abortion and certain sexual practices.  But, of course, we don't ever ask about the constitutional implications of criminalizing, say, shoplifting, drinking in public (as distinguished from carrying guns in public), or failing to give the proper signal when one is preparing to turn.   My naive hope, incidentally, is that the justices who were so concerned about "coercing" the defenseless states in the second part of Sibelius will pay more attention to the coercion that underlies the American system of plea bargaining, which begins with the power of the prosecutor to overcharge (in the specific sense that the DA does not have a good faith belief that protecting the public "requires" charging the defendant with X and putting himaway from Y years, but, instead, uses the threat of such a prosecution, and subsequent sentence, as a way of forcing vulnerable defendants, who can't make bail, to plead out to lesser offenses that some of them may in fact be truly innocent of having committed).  


As Charles Epp,  Steven Manard-Moody, and Donald Haider-Markel point out in their essential book Pulled Over:  How Police Stops Define Race and Citizenship, the roots of, say, Sandra Bland's tragedy, lie in part in several quite obscure cases (at least from the perspective of "constitutional theorists."  (I know of these cases only because of having read Pulled Over.  Start with Whren v. US (1996), in which the Court unanimously ruled, to quote Epp et al., "that stops are legitimate if based on any objective violation of the law, no matter how minor, and offficers may now use minor violations as pretexts to seek evidence of more serious criminal wrongdoing."  To be sure, it would be unconstitutional to stop someone if race were the primary cause of the stop, but, as every lawyer knows, to prove "intentional discrimination," in the absence of "smoking gun" written materials or taped conversations, is nearly impossible to prove, especially if we are concerned, as a practical matter, with the behavior of low-visibility, popularly elected judges.  Adam Liptak had a terrific piece in the NY Times earlier this week on the fatuity of believing that Batson has truly eliminated racially-oriented peremptory challenges.  He quites one social scientist who says, altogether accurately, that judges charged with enforcing Batson in effect have said that "stupid" reasons do not in fact run afoul of constitutional limits, and prosecutors have become quite adept in offering stupid reasons that make little sense, other than to the judges who are willing to tolerate them.

Mark could also have noted that the contemporary Supreme Court--i.e., the one that unanimously legitimated the modern regime of "investigative stops" going back to Terry (a Warren Court decision, recall) and then Whren. Knowles v. Iowa (1998), and U.S. v. Arvizu (2002)--has been totally devoid since Thurgood Marshall's retirement of a single justice who has ever represented a criminal defendant criminal in the actual criminal justice system (unless John Roberts ever represented a white color criminal defendant or, perhaps, even took part in a pro bono death penalty case that, whatever its result, is of no relevance to Freddie Gray or any poor wretch (quite literally) who is languishing in a jail because of an inability to make bail (the subject of another excellent Times piece),  It will be interesting to see if Justice Kennedy gets any support regarding his concerns about the "American exceptionalism" that is our system of long-term "solitary confinement," including youngsters of 14.  According to Linda Hirshman's forthcoming joint biography of O'Connor and Ginsburg, Sisters in Law,  then-Judge Ginsburg, when she was on the DC Circuit, took her clerks, every other year, to see the Lorton jail.  Good for her.  I gather that she sees no need to do this for her Supreme Court clerks.  (I'd be interested, incidentally, to know if any clerks arrive at the Supreme Court with experience as public defenders.)  It was literally front-page news when Obama became the first president in our history actually to visit a prison.  I don't know if he actually saw any of the solitary confinement sensory deprivation cages that are part of the "supermax" federal prisons.  (I do wonder, incidentally, if the people incarcerated at Guantanamo would really be better off if sent to such a facility within the US.)   Just as our foreign policies are often made, de facto, by people who are stunningly ignorant of the actualities of the countries they wish to invade, so it is true that our "criminal justice" policies are made in important ways by people who are equally ignorant and are blithely indifferent to the consequences for the victims of their "get tough on crime" posturing.  And, I am afraid, American law schools do relatively little to educate our students, save for those who are self-motivated to learn through, e.g., taking often excellent clinics. 

Bill Clinton has apologized, more or less, for signing really dreadful legislation during the 1990s that directly contributed to our mass incarceration system.  Hillary Clinton is clearly concerned about what she should say, given her apparent collaboration with her husband 20 years ago in such efforts, and Joe Biden (should he actually jump into the race) will have to explain his eagerness to carry the legislative weight to get the legislation passed.  I suspect that hell will freeze over before anyone on the Supreme Court acknowledges their own responsibility for the contemporary reality of "investigative stops" coupled with aggressive policing.  Epp et al. quote from the journal Police Chief:  "Police chiefs and administrators should always hve their officers articulate the dangers they are facing and how those dangers affect their decisions.  Often, that will be the difference bewteen winning and losing a case."  And then Epp et al. go on to add, "In other words, the difference between a legal and illegal stop is not what the officer saw and did but how he or she describes it." (emphasis in original)

Finally, one of my (genuine) hopes for Rand Paul, which so far, at least, is not particularly being realized, is that he would really try to educate the public about the implications of our becoming ever more of a police state, even though most of "us," of course, don't feel this because we're not likely to be the recipients of the kind of police behavior directed at Eric Garner, Sandra Bland, etc., etc., etc., nor are "our" children likely to be shot by police (who will then be defended by their unions and by "expert witnesses" like William Lewinski who will tell us that police are always legitimately worried that people they think are criminals are out to kill them and, therefore, must be killed first).   
Posted 3:54 PM by Sandy Levinson [link]