Regulation or Resistance? A Counter-Narrative of Constitutional Criminal Procedure
63 Pages Posted: 15 Jun 2016
Date Written: November 1, 2015
As soon as modern constitutional criminal procedure appeared, the police were at center stage. In judicial opinions and in academic commentary, the Fourth Amendment and some provisions of the Fifth and Sixth Amendments have been framed for decades as regulations of the police. The regulatory project is now widely viewed as a failure, and some judges and many commentators seem ready to abandon, or at least scale back dramatically, the whole field of constitutional criminal procedure. But the framing of that field as police regulation was always a mistake. The enterprise of constitutional criminal procedure is, by design, a vehicle for defendants to resist punishment rather than a mechanism to regulate police. The prototypical Fourth or Fifth Amendment claim alleges police misconduct, to be sure, but the immediate goal is not better policing. Instead, the prototypical claim is an individual’s act of resistance against state coercion: it is an effort to avoid punishment by claiming that the state has overstepped its powers. Regulatory effects of such a claim are derivative of, and subsidiary to, the resistance. Importantly, the defendant's act of resistance is itself constitutionally sanctioned. The Bill of Rights sets conditions for legitimate punishment, including minimum standards for investigative procedures. Thus it is open to individual defendants to resist punishment by alleging an unreasonable search or seizure, or an unconstitutional interrogation. We should recognize and even celebrate this resistance as part of a truly adversarial system. Even when punishment is ultimately and appropriately imposed, the resistance itself pushes the state to articulate and defend the principles of coercion that underlie the operation and enforcement of the criminal law.
Keywords: criminal procedure, policing, Fourth Amendment, Fifth Amendment, resistance
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