Breaking out of 'custody': a feminist voice in constitutional criminal procedure.

• Author: Raigrodski, Dana

1. INTRODUCTION

   Voluminous literature has been written in an attempt to understand and construe the law of constitutional criminal procedure in general and the Fifth Amendment's privilege against self-incrimination in particular. This task, however, has proven to be normatively and socially complex. The vast case law and legislation intended to implement the constitutional guaranties of human liberties are neither technical nor simple. Surely, the importance and implications of these norms for the criminal justice system and the constitutional regime, on both the theoretical and the practical levels, cannot be overstated. Alas, the controlling legal norms and doctrines of constitutional criminal procedure seem to many lawyers, legal scholars, and ordinary citizens as inconsistent, even arbitrary at times, and have been subject to many public debates.(1)

   In this Essay, I suggest that reexamination of this field of law through a feminist lens can shed new light and add to the understanding of constitutional criminal procedure. These insights, in turn, can and should generate a positive feminist jurisprudence of criminal procedure--a distinctive feminist voice to be integrated systematically into our constitutional criminal procedure and our criminal justice system.(2) Applying feminist legal theories to particular areas of constitutional criminal procedure may help guide us through the more difficult task of constructing a positive feminist jurisprudence of constitutional criminal procedure.(3) Many areas of constitutional criminal procedure lend themselves as potential subjects of feminist critique. Due to the central role interrogations and confessions continue to play in solving and preventing crime, and due to my own familiarity with police interrogations, I chose to begin developing such possible feminist jurisprudence within the Fifth Amendment's protection against self-incrimination. Specifically, I will examine one of the most studied, debated, and glorified Supreme Court decisions--Miranda v. Arizona(4)--and the key determination of "custody" it entails.

   The following critique differs from more common critiques of overt bias in constitutional criminal procedure and the criminal justice system.(5) Such critiques do not challenge the facial objectivity and neutrality of the legal norms themselves, but examine their discriminatory applications by police officers, prosecutors, jurors, and courts. This Essay, to the contrary, questions the normative structure itself, arguing that its objectivity and neutrality mask an embodiment of masculine values and perspectives, and that it systematically disadvantages women as well as other members of society. We should thus concentrate our efforts not only at eliminating indicia of overt bias in the criminal justice system, an undeniably valuable and important goal in itself, but also at exposing and acknowledging the structural normative biases inherent in this field of law, as in law in general, and transform it accordingly.

   Finally, I would like to emphasize the broad objective of my own feminist agenda. By and large, most feminists share the goal of bringing about gender equality and ending oppression of women qua women. As I see it, however, the subordination of women is inherently intertwined with other forms of social oppression, such as racial oppression and class subordination, which should be of concern as well for feminism. Not only do different forms of oppression share dominance ideologies and structural subordination, but they also often intersect. Thus, for example, underprivileged minority women are often subjected to multiple and complex manifestations of gender, race, and class subordination, which cannot, and should not, be addressed separately.(6) In these instances, more than in general, limiting our feminist project to gender issues alone will not only be essentialist, but will prevent us from truly improving the material lives of these women. Hence, I follow some feminist scholars in advocating a more inclusive objective, which seeks to include and promote excluded viewpoints and unheard voices in general.(7)

   Accordingly, I endorse Professor Minow's call to move beyond gender and develop feminist critiques in contexts such as race, ethnicity, socioeconomic class, handicap, sexual orientation, and age.(8) For we cannot challenge the oppression and exclusion of women and at the same time exclude other voices and impose our own essentialist perspective.(9) Our goal should be to facilitate the inclusion of marginalized groups for whom it can be said: "When they enter, we all enter."(10)

   The non-essentialist standpoint I advance in this Essay is concerned with two distinct yet interconnected facades of "essentialism." First, essentialism, in this context, treats gender (and often race) as a set of fixed and inherent properties residing in each woman by virtue of being a woman.(11) To essentialists, either biology, socialization, or both give us certain relatively immutable traits and life experiences. Hence, from an essentialist standpoint, being a woman necessarily (subject to few exceptions) means having a unique "woman" epistemology and experience, regardless of race, class, education, age, and so forth. Such an approach disregards individual differences and minimizes the role of current experiences with power differentials as part of the cause of gendered and racial differences in how we perceive the world. Although I believe women, by and large, share epistemologies and experiences of oppression arising from our ideological and material subordination in society, I argue that patriarchy manifests itself in many different forms, and is experienced and conceived differently by each woman according to each one's unique and multifaceted identity, in which gender is but one variable factor. The multiple perspectives women have are reflected in the multiple and even contradictory critiques we offer and the paths we suggest taking to improve the conditions of our lives. Thus, neither my critique nor my proposed reform claims to be the feminist theory of custodial interrogations or of constitutional criminal procedure necessarily arising from The Woman Experience, but rather reflects a possible feminist theory, based on my own beliefs and personal convictions.

   Second, from an epistemological standpoint, essentialism treats gender/sex as the sole, or at least prevailing, explanation for our current social and legal structure.(12) Unfortunately, many feminist scholars fall into this trap, either by depicting gender-based explanations as the new grand theory able to provide a comprehensive explanation of our social, legal, and economical structures, or by simply disregarding other available explanations. In my opinion, the dominance of patriarchy and gender relations provide an important and viable structural explanation, but not necessarily an exclusive or superior explanation of the world as we know it. This in itself, however, is no reason to reject feminist theories, as I see no difficulty in developing and accepting multiple explanations of the world or particular aspects of it. Race-based, class-based, and gender-based theories, for example, are not and should not be regarded as mutually exclusive, but can rather co-exist and cross-fertilize each other. It should be emphasized, nonetheless, that my broad objective and non-essentialist epistemology does not render a feminist critique superfluous. The uniqueness of feminist methodologies and epistemologies distinguishes them from traditional socialist or critical theories, and demonstrates their jurisprudential contribution to the understanding and shaping of law in general, and not only to "women's issues."(13)

   Part II reviews the critical feminist legal theories, concepts, values, and methodologies which I chose as a framework for this Essay. This framework represents my own position within the complex and diverse field of feminist theories and viewpoints, and does not, and cannot, portray the full array of feminist legal theories. Part III describes the so-called objective standard that is used to determine "custody," and hence the applicability of Miranda warnings, as construed and developed in Miranda v. Arizona(14) and its progeny. Part IV then examines this standard through a feminist lens, and concludes that it deprives the interrogated person from actual protection of one's right against self-incrimination, while perpetuating male domination and stereotypical thinking about women. Part V concludes with an alternative jurisprudence of the custody inquiry, based on feminist methodologies and epistemologies, and attempts to answer some of the possible critiques against its adoption.

2. CRITICAL FEMINIST LEGAL THEORIES

   Traditional legal theories have continually tried to effectuate a sharp separation between law and politics, so that law appears as an independent, neutral, and nonpolitical entity. In contrast, critical legal theorists, building upon the legal realists, have argued that the law is indeterminate and instrumental, and as such not only reflects social structures and long-standing inequalities but also exacerbates and perpetuates them. These critiques attack the notion of objectivity in legal decisionmaking, arguing that the latter inevitably involves subjective ideological judgements.(15) Critical feminist theories, which grew out of "a commitment to gender as a focus of concern" and out of conscious attempts to respect women's voices and experiences, have developed analytical tools to examine how those voices are heard and how those concrete experiences are processed.(16)

   Although feminist scholars are extremely diverse, and fiercely debate issues within the feminist agenda, they share the core argument that the current human society is, and has been throughout history, male dominated, socially and normatively.(17) Therefore, what seems to be natural and neutral is...