The Constitution and Criminal Procedure: First Principles.

AuthorBandes, Susan

The Constitution and Criminal Procedure: First Principles. By Akhil Reed Amar. New Haven: Yale University Press. 1997. Pp. xi, 272. $30.

Let me give you a lesson in American history: James Madison never

intended the Bill of Rights to protect riffraff like you.(1)

Akhil Amar(2) chides legal scholars for believing that the current system of criminal procedure, both substantive and remedial, is constitutionally compelled. He writes, "Scholars should know better, but too few of those who write in criminal procedure do serious, sustained scholarship in constitutional law generally, or in fields like federal jurisdiction and remedies" (p. 115). Amar believes, as I do,(3) that criminal procedure has been impoverished by its failure to connect to "larger themes of constitutional, remedial and jurisdictional theory" (p. 115). But as one who has done serious, sustained scholarship in all the areas Amar mentions -- or so I like to think -- I have grave concerns about Amar's first principles and their remedial implications. As an admirer of his work in the field of federal jurisdiction, I have been deeply puzzled by his treatment of the Fourth, Fifth, and Sixth Amendments, which is fundamentally at odds with his attitude toward the substantive and remedial structure of the remainder of the Constitution.

My thesis is that Amar has been led astray by the very fact that these amendments are about criminal procedure. His attitude toward crime and criminals has led him to conclude that the first principles underlying the criminal procedure amendments are the protection of the innocent and the pursuit of truth. Indeed, he conflates even these two principles, so that the pursuit of truth becomes another way of saying that the innocent must be sorted from the guilty. Amar's monolithic focus on protecting the innocent is wrongheaded as a matter of constitutional text, history, structure, and spirit. It has led him to make startling claims about the reach of the Fourth, Fifth, and Sixth Amendments and the remedies that ought to flow from their violation.(4)

It is important to examine Amar's claims carefully for a number of reasons. First, Amar is absolutely correct about the need to discuss the values animating constitutional criminal procedure. Amar's ambition is nothing less than to "fundamentally reorient the field" (p. ix). He is energetic and fearless in his determination to examine a concededly ingrown, contradictory, and polarized field from a fresh perspective. He seeks to take nothing for granted, and he does succeed in raising hard questions about some of the Warren Court's conventional wisdom. It seems de rigeur to refer to Amar's analysis as provocative,(5) and surely he would not excite so much critical comment if he had not hit a nerve. Amar deserves appreciation for taking great intellectual risks. He is correct that it is time to take a long, careful look at the current state of criminal procedure and ask whether we are comfortable with the values and interests it embodies, whether it is a workable system, and where it fits in the greater constitutional scheme.

Second, it is important to respond to Amar's substantive analysis because it rests on assumptions that are disturbingly ascendant in current criminal jurisprudence. Amar's analysis must be critiqued for its misidentification of the values of innocence and truth seeking as animating the criminal procedure amendments, its focus on ultimate disposition and away from process, its unworkable remedial proposals, and its consistent undervaluing of the concern with the abuse of governmental power. Ironically, despite Amar's sense of his scholarship in this area as revolutionary, the same values and assumptions he espouses have increasingly informed the Court's criminal procedure jurisprudence. In my opinion, this approach signals a deeply unfortunate turning away from "enduring values that Americans can recognize as our values" (p. 155).

Finally, it is important to respond to Amar's analysis because it is Amar's analysis. He is a highly respected legal scholar with a well-deserved reputation for brilliant iconoclasm. His early works advocated a generous and attractive vision of full remediation for governmental wrongs, and indeed this theme recurs in his current work. Yet, despite his stated desire to integrate the criminal procedure amendments into the Constitution as a whole, his vision for these amendments is far less generous or attractive. More accurately, its superficial attractiveness lies in its appeal to simplicity and "common sense" -- dangerous attributes when they jibe so neatly with the reflexive us/them attitude that too often pervades debate in this area. In practice, Amar's proposals, would weaken greatly the substantive and remedial structure undergirding the Fourth, Fifth, and Sixth Amendments. Amar has testified in Congress and elsewhere on these issues, advocating, among other things, an end to the exclusionary rule.(6) Such testimony coming from one viewed as a liberal, civil libertarian law professor is extremely powerful -- and extremely troubling. Thus, the disjunction between Amar's views on protections for noncriminal litigants and his views about criminal defendants must be illuminated.

  1. "WE THE PEOPLE" AND OUR ENDURING VALUES

    Amar's chapter on the future of constitutional criminal procedure contains a key paragraph about his interpretive vision for this field:

    A Constitution proclaimed in the name of We the People should be

    rooted in enduring values that Americans can recognize as our values.

    Truth and the protection of innocence are such values. Virtually

    everything in the Fourth, Fifth and Sixth Amendments, properly read,

    promotes, or at least does not betray, these values. [p. 155]

    This paragraph cries out for the punch line: "What do you mean, we?" I do not mean this comment glibly. Amar's assumptions about what we value, and indeed about who we are, are deeply problematic. Amar claims, here and throughout the book, to be describing societal values that are both deeply rooted in history and at the core of contemporary concerns. To the extent he roots his claim for enduring values in the concerns of the Founders, his historical analysis is unpersuasive. It suffers from precisely the same flaw as does his analysis of the contemporary factors shaping the evolution of the criminal procedure amendments: it consistently underplays or even denigrates the concern for the abuse of governmental power. This concern is our value in the sense that it animated the framers, and in the sense that it has endured. The exclusive focus on truth and innocence reads out the values of fairness, judicial integrity, equality, and, most of all, the political concern for the abuse of government power that -- I will argue -- are the enduring values we do and should recognize as our values.

    When Amar fails to include the fear of abuse as one of our enduring values, it is important to understand how he defines the "We." He consistently uses the phrase "We the People" to describe innocent people, as, for example, when he suggests that instead of excluding tainted evidence, damages ought to be assessed to comfort victims of violent crimes, which would "be more apt to make the people `secure in their persons, houses, paper, and affects' than would freeing murderers and rapists."(7) There is "We the People," and then there are the criminals.

    There are a number of problems with a theory of criminal procedure that rests on separating the innocent from the guilty and ensuring that innocent people are protected and guilty people are not. Even assuming that truth and innocence are the values that belong at the pinnacle of the hierarchy, Amar makes several errors. He employs a simplistic, whodunit version of the concept of innocence. In addition, although he identifies the pursuit of truth as a primary value, he conflates the pursuit of truth with the protection of innocence. Finally, his chronology is problematic: he assumes that innocence can be determined prior to determining what protections are due.

    1. When Truth and Innocence Are Overrated

      [T]he thing is, you don't have many suspects who are innocent of a

      crime .... If a person is innocent of a crime, then he is not a suspect.

      --Remarks of Attorney General Edwin Meese(8)

      In exalting the value of innocence protection, Amar has signed on to one of the fastest growing, and most dangerous, trends in contemporary criminal jurisprudence: the trend toward separating the innocent from the guilty before determining what protections to afford. Taken to its logical extreme, it has the potential to gut constitutional protection for those accused of crime.

      Consider the Fourth Amendment. In a group of cases in the late 1970s and early 1980s dealing with the definition of a search and the requirements for standing -- a group of cases that Amar calls "one sensible corner of current Fourth Amendment law" (p. 112) -- the Court transformed the Katz v. United States(9) reasonable expectation of privacy test into a legitimate expectation of privacy test. Whereas Katz itself had found a reasonable expectation of privacy in the contents of a phone call, despite the fact that the call concerned illegal gambling activities, United States v. Jacobsen(10) and United States v. Place(11) put a moral spin on the reasonableness standard. These cases held that a suspect had no legitimate expectation of privacy in illegal activity -- that he could assert a Forth Amendment claim only to the extent that the government intruded on his noncriminal activities. In Rawlings v. Kentucky,(12) the Court held that a suspect had no legitimate possessory interest in contraband and thus could not complain about the seizure of that contraband, though he was ultimately convicted of its possession.(13)

      In short, the question of whether a defendant can claim Fourth Amendment protection now hinges on whether the defendant can show, at the outset, that...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT