Counter-revolution in constitutional criminal procedure? Two audiences, two answers.

• Author: Steiker, Carol S.

"You'd be better informed if instead of listening to what we say, you watch what we do."(1)

1. INTRODUCTION: COUNTER-REVOLUTION?

   When Richard M. Nixon ran for president in 1968, he campaigned on a now-familiar "law and order" platform. Among other things, he pledged to appoint Justices to the Supreme Court who would combat the Warren Court's controversial constitutional decisions limiting the power of law enforcement officials to investigate and prosecute crime. When Nixon won the presidency and then almost immediately had the opportunity to replace Chief Justice Earl Warren and three Associate Justices with appointees of his own, it was widely predicted that the major innovations of the Warren Court in constitutional criminal procedure -- any list would include Mapp,(2) Massiah,(3) and Miranda(4) -- would not long survive. In the almost thirty years since Nixon's victory, the Supreme Court's pulse-takers have offered periodic updates on the fate of the Warren Court's criminal procedure "revolution" in the Burger and Rehnquist Courts.

   The voluminous body of literature formed by these assessments(5) presents something of a puzzle. The unanimity of projection about the future of the Warren Court's criminal procedure soon gave way to widespread disagreement about the nature and extent of the response of the Burger and Rehnquist Courts. On the one hand, many commentators -- usually admirers of the Warren court's handiwork -- have lamented over the years about what they view as a wholesale repudiation of the Warren Court's work; their comments are full of words like "retreat,"(6) "decline,"(7) and "counter-revolution."(8) At the very same time, other commentators -- many of them also defenders of the Warren Court -- have maintained that these laments are "overstated,"(9) and "considerably exaggerated"(10) and that the basic structure of the Warren Court's criminal procedure jurisprudence is firmly "entrenched."(11) As one critic of the Warren Court recently has bemoaned, "The voice that continues to urge repentance [from the Warren Court's criminal procedure] today is truly `[t]he voice of him that crieth in the wilderness.'"(12)

   One could attempt to resolve (or repudiate) this puzzling conflict in a variety of ways. One could, for example, attempt to explain disagreement about the nature of change by distinguishing between levels of abstraction -- between "doctrinal" and "ideological" change.(13) Or one could note that the difficulties inherent in weighing and measuring any sort of jurisprudential shift are exacerbated greatly in the broad, diffuse, and fact-specific jungle that is constitutional criminal procedure. Or one could ascribe the debate to a dispute over semantics: just how much change, after all, is "revolutionary" or "counter-revolutionary"? Or one simply could write off the more extreme statements on either side of the divide as rhetorical flourishes offered in the spirit of academic "spin control."

   I, however, want to resist these temptations to downplay or deny the conflict, because I believe that the debate over continuity and change in constitutional criminal procedure can best be accounted for in an entirely different way-a way that suggests a new kind of critique of the Burger and Rehnquist Courts' criminal procedure jurisprudence. I start with the contention that the Supreme Court has profoundly changed its approach to constitutional criminal procedure since the 1960s at least in the following fairly limited (but obviously important) sense: the Court has clearly become less sympathetic to claims of individual rights and more accommodating to assertions of the need for public order. In the last three decades, the Court has granted review to and found in favor of criminal defendants much less frequently than it did in the heyday of the Warren Court.(14) Thus, at least in Holmes' positivist sense of law as a prediction of what courts will do in fact, the law has changed radically.(15)

   The way in which this change has occurred, however, may help explain the academic divide. My contention is that much of this change has occurred quite differently from what was predicted at the close of the Warren Court era. The Burger and Rehnquist Courts have not altered radically -- and indeed, occasionally have bolstered -- the Warren Court's constitutional norms regarding police practices. The edifice constructed by the Warren Court governing investigative techniques under the Fourth, Fifth, and Sixth Amendments remains surprisingly intact. Rather than redrawing in any drastic fashion the line between constitutional and unconstitutional police conduct, the Supreme Court has revolutionized the consequences of deeming conduct unconstitutional. This revolution has not taken the form of wholesale abolition of the Fourth Amendment's exclusionary rule, or the Fifth or Sixth Amendments' mandates of exclusion; rather, the Court has proliferated a variety of what I would term "inclusionary rules" -- rules that permit the use at trial of admittedly unconstitutionally obtained evidence or that let stand criminal convictions based on such evidence. Examples of "inclusionary rules" are the doctrines regarding standing, the good-faith exception to the warrant requirement, the "fruit of the poisonous tree,"(16) impeachment, harmless error, and limitations on federal habeas review of criminal convictions.

   Thus, for the purposes of my argument, I adapt Professor Meir Dan-Cohen's distinction (which he in turn borrowed from Jeremy Bentham)(17) between "conduct" rules and "decision" rules. Bentham and Dan-Cohen make this distinction in the context of substantive criminal law; for their purposes, "conduct" rules are addressed to the general public in order to guide its behavior (for example, "Let no person steal") and "decision" rules are addressed to public officials in order to guide their decisionmaking about the consequences of violating conduct rules (for example, "Let the judge cause whoever is convicted of stealing to be hanged"). But as any teacher of both substantive and procedural criminal law knows, constitutional criminal procedure is a species of substantive criminal law for cops. Thus, for my purposes, "conduct" rules (my "constitutional norms") are addressed to law enforcement agents regarding the constitutional legitimacy of their investigative practices and "decision" rules (my "inclusionary rules") are addressed to courts regarding the consequences of unconstitutional conduct.

   My primary descriptive claim, elaborated in Parts II and III, is that the Supreme Court's shift in constitutional criminal procedure from the 1960s to the 1990s has occasioned much more dramatic changes in decision rules than in conduct rules. I illustrate this claim by comparing the relative stability of constitutional norms regarding police practices under the Fourth, Fifth, and Sixth Amendments to the profusion of significant inclusionary rules affecting these same areas. This claim is qualitative rather than quantitative, and comparative rather than absolute. I do not mean to say that the Supreme Court has deployed decision rules more than conduct rules in any strict numerical sense, nor do I contend that constitutional norms have not shifted at all; rather, I argue that the Court's decision-rule cases have diverged far more from the Warren Court's starting point than have its conduct-rule cases. Thus, the dichotomy between decision rules and conduct rules helps to explain the existence of such a deep academic divide. The proponents and debunkers of the "counter-revolution" hypothesis turn out to both be right: the Burger and Rehnquist Courts have accepted to a significant extent the Warren Court's definitions of constitutional "rights" while waging counter-revolutionary war against the Warren Court's constitutional "remedies" of evidentiary exclusion and its federal review and reversal of convictions.

   This primary descriptive claim, if accepted, leads to a secondary descriptive claim, which I explain in Part IV. Professor Dan-Cohen used the distinction between conduct rules and decision rules to illustrate the concept of what he termed "acoustic separation." Certain areas of substantive criminal law, observed Dan-Cohen, reflect such divergence between the decision rules courts use to enforce the law and the conduct rules announced to the general public, that it is as if the decision-makers and the members of the public are in separate, sound-proof rooms, unable to hear the rules announced to each other.(18) I argue that the transformation of decision rules in constitutional criminal procedure creates a similar sort of "acoustic separation" between the law enforcement community and the general public. The law enforcement community, through training and on-the-job experience, has direct access to the decision rules used by courts. The general public, which receives its information largely through the media, has much greater access to conduct rules governing police behavior (i.e., the public's "constitutional rights") than to decision rules in criminal procedure cases as they are implemented by courts (i.e., which violations of constitutional rights actually result in a court-imposed sanction).

   This second descriptive claim leads to a normative question, which I raise in Part V: should we worry or even care about the relative sophistication or naivete of the police and the people regarding the Supreme Court's constitutional criminal procedure? I think we should both care and worry. The law enforcement community's easy access to decision rules should create concerns that sophisticated law enforcement agents will see some incentives to violate conduct rules when no court -- imposed sanction will follow. And the public's lack of access to decision rules should cause us to worry that the public overestimates the court-imposed constraints on law enforcement. Some available empirical data about the attitudes of law enforcement...