The Unconstitutional Conditions Vacuum in Criminal Procedure

66 Pages Posted: 2 Mar 2023

See all articles by Kay L. Levine

Kay L. Levine

Emory University School of Law

Jonathan Remy Nash

Emory University School of Law

Robert A. Schapiro

University of San Diego School of Law

Date Written: February 26, 2023

Abstract

For more than a century the United States Supreme Court has applied the unconstitutional conditions doctrine across a variety of settings, scrutinizing government efforts to condition the tradeoff of rights for benefits in the speech, funding, and takings contexts, among others. The Court has declined, however, to invoke the doctrine in the area of criminal procedure, where people accused of crime are often asked to—and typically do—surrender their constitutional rights under the Fourth, Fifth, and Sixth Amendments in return for some benefit. Despite the Court’s insistence that the unconstitutional conditions doctrine applies broadly across the Bill of Rights, its jurisprudence demonstrates that the doctrine functions as a selective shield that offers no support for certain rightsholders.

We argue that the Court’s approach undermines vital rights, with especially harmful consequences for people who most need judicial protection. Since individuals accused of crime are often extremely vulnerable to coercive government measures, the important safeguards offered by the unconstitutional conditions doctrine should be at their apex in the criminal procedure setting. Indeed, lower federal courts and some state courts have applied the doctrine to criminal procedure issues, demonstrating the doctrine’s utility in this domain. We conclude that the Supreme Court’s aversion to using the unconstitutional conditions doctrine in its criminal procedure docket rests not on a principled doctrinal distinction, but on a failure to take seriously the constitutional predicaments facing those charged with crimes. In accordance with its obligation to render equal justice under law, the Court must apply the unconstitutional conditions doctrine in this most critical area.

Keywords: constitutional law, criminal procedure, vulnerable populations, rights of accused, Bill of Rights, plea bargaining, search and seizure, unconstitutional conditions

JEL Classification: K10, K14, K19

Suggested Citation

Levine, Kay L. and Nash, Jonathan and Schapiro, Robert A., The Unconstitutional Conditions Vacuum in Criminal Procedure (February 26, 2023). Yale Law Journal, Forthcoming, Emory Legal Studies Research Paper No. 23-2, San Diego Legal Studies Paper No. 23-011, Available at SSRN: https://ssrn.com/abstract=4371277 or http://dx.doi.org/10.2139/ssrn.4371277

Kay L. Levine (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

Jonathan Nash

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

Robert A. Schapiro

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

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