Abstract

http://ssrn.com/abstract=1466061
 


 



Fourth Amendment Federalism and the Silencing of the American Poor


Andrew E. Taslitz


American University - Washington College of Law

September 1, 2009

Chicago-Kent Law Review, Forthcoming

Abstract:     
In a recent case, Virginia v. Moore, the United States Supreme Court held that it was irrelevant under the Fourth Amendment that police made in arrest contrary to a state statute prohibiting arrest for certain minor violations. In doing so, the Court declared that the Fourth Amendment may not vary from "place to place." This paper takes issue with that statement, both as being descriptively incorrect given contrary precedent and as being unwise constitutional policy. Specifically, the paper argues that poor, urban, racial minorities are ill-represented on matters of state criminal justice policy and lawmaking, though they receive better represetation of their views at the local level. To allow the state to bar arrests for minor offenses but to provide no remedy grants police discretion to violate the statute with impunity – violation most likely to be visited upon precisely the groups with the least political representation at the state level. That limited power, moreover, means that ordinary political mechanisms will not work to right this balance. Moreover, those groups most hurt by the state legislation are most likely to favor therapeutic over punitive approaches to crime. By disempowering these groups, the Court thus further amplifies excessively punitive punishment philosophies. To let the state recognize that its interest in arrest for minor offenses is too small to justify an arrest yet to ignore that conclusion in engaging in Fourth Amendment reasonableness balancing is thus to magnify existing criminal justice policy distortions and to undermine voice for those most affected by such distortions. The article ends with a response to seven likely objections to the argument.

Number of Pages in PDF File: 47

Keywords: Fourth Amendment, search, seizure, poverty, state legislature, federal legislature, voice, exit, arrest, minor offenses, reasonableness, privacy, representation

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Date posted: February 9, 2010  

Suggested Citation

Taslitz, Andrew E., Fourth Amendment Federalism and the Silencing of the American Poor (September 1, 2009). Chicago-Kent Law Review, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1466061

Contact Information

Andrew E. Taslitz (Contact Author)
American University - Washington College of Law ( email )
4801 Massachusetts Avenue N.W.
Washington, DC 20016
United States
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