Structural overdelegation in criminal procedure.

• Author: O'Rourke, Anthony
• Position: Introduction through II. Overdelegation in Criminal Procedure B. Identifying Overdelegation, p. 407-438

In function, if not inform, criminal procedure is a type of delegation. It requires courts to select constitutional objectives and to decide how much discretionary authority to allocate to law enforcement officials in order to implement those objectives. By recognizing this process for what it is, this Article identifies a previously unseen phenomenon that inheres in the structure of criminal procedure decisionmaking.

Criminal procedure's decisionmaking structure pressures the Supreme Court to delegate more discretionary authority to law enforcement officials than the Court's constitutional objectives can justify. By definition, this systematic "overdelegation" does not result from the Supreme Court's hostility to protecting criminal procedure rights. Instead, it arises from a set of institutional pressures that, in combination, differentiate criminal procedure from other forms of constitutional decisionmaking. By identifying the problem of structural overdelegation, this Article clears away much of the confusion that complicates normative debates about the Supreme Court's criminal procedure decisions. Why does the Supreme Court so frequently grant discretionary authority to law enforcement institutions that other observers find untrustworthy? How can one tell whether the Court has granted "too much" discretion to law enforcement officials, and what does that phrase even mean? By turning attention to criminal procedure 'S structure, this Article offers a framework for answering these questions, and for deepening our understanding of criminal procedure decisionmaking.

TABLE OF CONTENTS INTRODUCTION I. CRIMINAL PROCEDURE AND DELEGATION STRATEGY A. Criminal Procedure as Delegation B. What Do Courts Delegate? II. OVERDELEGATION IN CRIMINAL PROCEDURE A. Defining Overdelegation 1. Overestimating Uncertainty 2. Underestimating Policy Resistance B. Identifying Overdelegation C. Descriptive Limits III. OVERDELEGATION'S STRUCTURAL SOURCES A. Regulatory Complexity (and Single Institutionalism) B. Doctrinal Entrenchment Mechanisms C. Political Economy of Litigation D. Redistributive Rights IV. OVERDELEGATION CYCLES V. AVOIDING OVERDELEGATION A. Announcing Constitutional Objectives B. Deciding Whom to Regulate C. Order of Comparative Analysis CONCLUSION INTRODUCTION

Over the past few years, the Supreme Court has eliminated the Fourth Amendment exclusionary rule as a remedy for negligent policing, (1) allowed officers to resume questioning suspects (including incarcerated suspects) fourteen days after they invoke their Miranda rights, (2) given trial courts broad latitude to admit statements by mortally wounded witnesses under the "ongoing emergency" exception to the Confrontation Clause, (3) and declined to regulate the use of unreliable eyewitness testimony under circumstances where the police were not responsible for rendering it unreliable. (4) In each of these cases, the Court had to choose between imposing constitutional constraints on law enforcement officials and granting them the discretionary authority to go about their business without risking judicial sanction. And, in each of these cases (and many others), the Court chose discretion. (5) Why does the Supreme Court so often make this choice in criminal procedure cases? Is the choice "correct" with respect to whatever constitutional objective the Court is trying to achieve in a given case? If not, what can be done about it? This Article provides a framework that shows how deeply these questions are interrelated and suggests how they may be answered.

Specifically, this Article draws on scholarship from the social sciences and administrative law to defend two novel claims about the nature of criminal procedure decisionmaking. The first is that in function, if not in form, constitutional criminal procedure is a type of delegation. (6) When deciding a criminal procedure case, a court must select some constitutional objective, such as ensuring that officials comply with what the court determines to be their obligations under the Fourth Amendment without threatening their ability to engage in effective law enforcement. Having selected this objective, however, the court must then act as a regulator and craft a set of doctrinal rules designed to ensure that law enforcement officials will implement the constitutional objective] Through these rules, the court creates what administrative law scholars call a "policy space" within which law enforcement officials have the discretion either to comply with the court's constitutional objective or to deviate from it. (8) Just as Congress can choose the amount of discretionary authority it delegates to administrative agencies by drafting legislation broadly or narrowly, a court may choose how much discretionary authority to delegate to law enforcement institutions by crafting permissive or restrictive doctrinal rules. (9)

By recognizing this process for what it is delegation--one can clear away a great deal of normative confusion about the Supreme Court's doctrinal choices. Scholars frequently criticize criminal procedure decisions for granting "too much" discretion to law enforcement officials. (10) Rarely, however, do they differentiate between condemning the Court for choosing a constitutional objective that fails to impose meaningful obligations on law enforcement officials and criticizing the Court for choosing doctrinal rules that fail to implement its constitutional objective. By contrast, congressional delegation theorists are careful to draw a distinction between examining whether Congress has selected a laudable policy objective and evaluating whether it has chosen a delegation strategy likely to achieve that objective. (11)

Building on this distinction, the second claim of this Article is that criminal procedure's decisionmaking structure creates pressure on the Supreme Court to delegate more discretionary authority to law enforcement institutions than can be justified by the Court's constitutional objectives. From police officers conducting investigations and arrests, to prosecutors and trial judges overseeing convictions, and to defense attorneys fighting those convictions, constitutional criminal procedure governs a diverse array of actors and activities within the criminal justice system. Notwithstanding this diversity, however, constitutional criminal procedure rights share a common decisionmaking structure that sets the rights apart from others in constitutional law.

In other contexts, political theorists such as Mark Graber and Keith Whittington have examined structural dynamics that lead other institutional actors to bolster the Supreme Court's authority over constitutional interpretation. (12) Few scholars, however, have explored the structural conditions that may lead the Court to divest itself of authority in certain areas of law. This Article presents such an analysis, identifying a number of structural features that collectively distinguish criminal procedure adjudication from other forms of constitutional lawmaking and examining how these features pressure the Court to systematically delegate more power to law enforcement institutions than is warranted by the Court's constitutional objectives. It also addresses why the Court sometimes refrains from committing this error of overdelegation and examines how the Justices might modify their decisionmaking processes to create a better fit between their delegation choices and their constitutional aims.

As it is defined here, there are two ways in which a court is likely to commit the error of overdelegation. First, a court may overestimate the extent to which law enforcement officials require discretionary authority in order to implement a constitutional objective effectively under conditions of uncertainty. Specifically, the court may overestimate the likelihood that, for reasons it cannot know in advance, officials will be unable to comply with a doctrinal rule without sacrificing other important values such as safety or effective law enforcement, and would thus need to deviate from the rule in order to achieve the policy outcome the court intended. (13) Second, the court may underestimate the extent to which law enforcement officials are unable or unwilling to implement a constitutional objective, and might therefore use the discretion they are accorded to undermine the objective. (14)

So defined, a judge does not overdelegate when she feels obligated as a matter of constitutional interpretation to preserve the discretionary authority of law enforcement officials. Instead, overdelegation typically occurs when judges entrust decisions regarding the implementation of some constitutional goal to other institutions without engaging in a sound comparative analysis of whether those institutions are better positioned than the court to make these decisions. Consider the Supreme Court's decision in Herring v. United States to eliminate the exclusionary rule as a remedy for Fourth Amendment violations involving ordinary negligence by police officers. (15) The Court asserted that it was not seeking to alter the scope of suspects' Fourth Amendment rights, and that the controlling question in the case was whether the exclusionary rule effectively deters violations of those rights. (16) If one were to accept these assertions at face value, then this inquiry should have involved a comparative analysis of whether the judiciary needed to involve itself in guarding against negligent Fourth Amendment violations, or whether this responsibility could be delegated to law enforcement officials. Such a comparative assessment would have required the Court to weigh (1) the deterrent value and social costs of the exclusionary rule and alternative Fourth Amendment remedies (such as civil liability) against (2) the training practices and cultural behaviors of local police departments. (17)

In practice, however, the Court appears to have narrowed the exclusionary rule, and...