Vol. 3 No. 11 (November, 1993) pp. 123-126
THE FAILURE OF THE CRIMINAL PROCEDURE REVOLUTION by Craig M. Bradley. Philadelphia: University of Pennsylvania Press, 1993. 264 pp.
Reviewed by Roy B. Flemming, Texas A&M University
Craig M. Bradley gives the debate over fourth amendment law and the exclusionary rule a new twist. Bradley, a former prosecutor and clerk for Chief Justice Rehnquist, teaches law at Indiana University. In this brief book, which draws heavily from previously published law review articles, Bradley argues that the Supreme Court's institutional infirmities as a policy making body weaken the Court's ability to make fourth amendment law that is comprehensible to police officers. Bradley claims that "nobody" thinks the system works particularly well. The root of the problem lies in the Court's tradition of developing rules on a case-by-case basis. As a consequence, America has unnecessarily cumbersome, ambiguous, confusing, and incomplete rules, which no amount of fine tuning by the Supreme Court can correct. The United States' failure becomes transparently clear, Bradley feels, when its rules are compared with the legislatively enacted codes of criminal procedure of other major countries. Since the problem is grounded in the Court's defects as a national policy maker, a more appropriate solution, Bradley argues, is to have Congress appoint a rule-making body, similar perhaps to the current Advisory Committee on the Federal Rules of Criminal Procedures, that would then develop a national code of criminal procedure.
Bradley lays out his argument is several short chapters. The first two chapters survey what will be well-mapped territory for readers familiar with the Court's landmark opinions dealing with search and seizure, interrogation, the right to counsel, and the adoption of the exclusionary rule. With WEEKS v. UNITED STATES (1914), the Supreme Court started down the path toward a definition of "reasonable" police activity with the exclusionary rule as its enforcement stick. Bradley suggests the dominant model during these early years involved setting flexible standards based on the fourteenth amendment's due process requirement. Although the Court regularly urged the states to follow its lead and develop their own rules, the states ignored these calls. Consequently, as the Court incorporated the Bill of Rights through the fourteenth amendment, it preempted state action, nationalized the issue, and set the stage for the decisions in 1960s that made up the criminal procedure "revolution" (Bradley feels the Warren Court merely accelerated an evolutionary process begun thirty years earlier by the Wickersham Commission.). The Warren Court adopted a new model, one that set down clear, inflexible rules, as in MIRANDA v. ARIZONA (1966). However, public and political reactions to the Court's decisions during a time of civil unrest and rising crime soon prompted the Warren Court to relax its posture. The second model withered away entirely with the Burger and Rehnquist Courts as exemptions, qualifications, and modifications blurred the clarity of the earlier decisions and blunted the revolution.
In his third chapter, where he documents the revolution's failure, Bradley emphasizes that he is not saying that the Supreme Court's efforts were a complete failure. Indeed, in its most obvious aspects, it was, as he says, a "huge success." Police abuses, such as the "third degree," are now rare. Miranda is an integral part of America's legal culture. Police training in criminal procedure is common. Bradley's indictment rests on other grounds. The revolution failed because the Court, despite its labors, cannot provide adequate guidance to the police. While many people may share Bradley's skepticism that the Court can definitively answer the questions raised in legal disputes, he claims the stakes are higher for criminal procedure. Police officers must be able to apply the law under stress and under urgent conditions. For the law to work on the streets, Bradley argues, "the doctrine must be clear, it must be complete, and it must be stable." (39).
To show that the current rules do meet these standards, Bradley draws on the authority of law professors and judges. He also reviews selected portions of the social science research assessing the impact of the exclusionary rule.
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Bradley's major concern, however, is whether the police and state courts understand the laws. He cites one study in which officers were asked to determine the legality of police searches in six scenarios based on facts from Supreme Court cases where three of the searches were legal and three were illegal. The mean score was 3.4, not much better than guessing; one wonders, though, if these scenarios bore much resemblance to the kinds of situations police officers typically encounter in their work. Bradley also conducted a preliminary study of decisions in fourth amendment cases rendered by nine state appellate courts. He found that 15.7 percent of the 233 opinions reversed the lower court decision. More telling for his argument was the discovery that in another 10.3 percent of the cases the lower courts should have been reversed but were not because, he states, "the appellate court incorrectly applied fourth amendment law" (45). Bradley concludes that these studies when combined with expert and lay opinion provide the necessary empirical underpinning for his pessimistic view of the current state of fourth amendment law.
The causes for this state of affairs, Bradley claims, are the uncertainty and incompleteness of the Court's decisions. Both are endemic to the Court's case-by-case approach to policy and rules, and together they undermined the revolution in criminal procedure. Uncertainty is especially important. Attempts to settle constitutional issues create more, not less uncertainty. So prevalent is this tendency that Bradley refers to it as "the uncertainty principle." In his fourth chapter, Bradley argues uncertainty in the law is very nearly inevitable for several reasons. The justices invariably justify their decisions on various grounds. The Court's opinions reflect the compromises that characterize collective decision making. At the same time, justices who join the majority opinion may remain silent about issues because they do not feel strongly about them even though the issues ought to be ventilated. For these reasons the Court often does not speak clearly. Stare decisis exacerbates the problem. The Court frequently develops new rules on often imprecise precedents or contorts its opinions to maintain the appearance of abiding by the doctrine. The Court's ability to frame comprehensive solutions is limited by its reactive posture and the need for live controversies. Even if the Court propounds a clear and comprehensive rule, it cannot anticipate every factual circumstance where the rule will be applied. The results many times seem unfair or inappropriate, and the Court retreats from its earlier position. Finally, there is the "conservatives' dilemma," which is peculiar to the current Court. Conservative justices eager to overturn precedent must reconcile their desires with their pronouncements about the importance of stare decisis which however binds them to unacceptable precedents. Efforts to elude this dilemma aggravate the increasing uncertainty of fourth amendment law as conservative justices declare portions of key cases to be dicta or they search for unsustainable distinctions between cases.
In the three chapters that conclude his book Bradley considers legislative solutions to the problem. He discusses and compares the criminal procedure rules adopted by other countries, then proceeds to outline and assess the advantages and problems of legislative rules in the United States, and finishes with a sketch of two alternative models of criminal procedure. The chapter on what other countries are doing compares England and Wales, Australia, Canada, France, Germany, and Italy. Bradley devotes most of his attention to the English rules and follows it up with less detailed descriptions of the remaining countries. His approach is formalistic. He compares the rules, notes how they differ, and checks to see how the higher courts are enforcing them. His central theme is that clear legislative rules tend to be wedded to a discretionary exclusionary rule, just the reverse of the situation in the United States. He provides no information, however, as to how well these rules work on the streets, the standard by which he judged America's rules. Bradley then turns to the issue of whether the United States could follow the examples of these countries. He discusses whether Congress has the power to legislate a comprehensive national code, points to previous congressional acts that can serve as authority or models (for example, Title III of the Omnibus Crime Control and Safe Streets Act of 1968 and the United States Sentencing Commis-
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sion), dismisses the issue of federalism as a hurdle, and describes how he thinks the committee charged with promulgating the rules might function.
Bradley places great faith in his proposal. He declares that the commission would not suffer the problems that plague the Court's deliberations. He emphasizes the statutory scheme would be "neutral" in its overall effects since the commission's only purpose would be to clarify and simplify the Supreme Court's fourth amendment law and make it complete. It would not, he stresses, change the ideological direction of the law. Bradley recognizes the threat politics poses to his proposal, yet he believes that somehow the commission can be isolated and insulated from outside pressures. Moreover, Bradley declares the commission's task would be simply a tidying up the law and thus implies that political issues can be divorced from legal matters that affect the authority of the police and the liberties of citizens. Few political scientists are likely to share Bradley's faith, and few are likely to be converted by his book.
Apart from stray mentions now and then about politics, Bradley refuses to see the politics in his proposal and does not bother with the politics behind the evolution of fourth amendment law in this country and criminal procedure rules in other countries. It is extremely difficult to accept Bradley's argument that the problems of fourth amendment law arise solely and entirely from the Court's own processes of decision making, and not from changes in the ideological composition of the bench brought about by Republican presidents who campaigned on the law and order issue and criticized the Warren Court's criminal procedure decisions and the exclusionary rule. It is also extremely difficult to understand how Bradley can think that a codification of existing laws will be neutral in its effects since they necessarily would incorporate the rulings of the recent conservative courts. Why would opponents of these decisions leave the commission to its work? Why would supporters decline to extend the gains they won on the bench?
Bradley offers no convincing answers to these questions. The creation of a commission would open a window of opportunity for numerous interests. Yet, Bradley ignores Oliver Wendell Holmes' famous aphorism that the life of the law is experience and chooses to spend little time on the U.S. Sentencing Commission to learn whatever lessons it might have for his proposal. He reasons that because the function of this commission was to come up with specific sentences for specific defendants, an inherently contentious task which his proposed commission would not have, the criminal procedure commission would confront fewer political obstacles. One wonders, however, if groups and Congress would pass up the opportunity to alter the commission's proposals. The recent battle in Congress over automatic discovery proposed in a reform of civil justice rules brought forward in ways similar to what Bradley proposes provides a cautionary tale. The ongoing battle over habeas corpus reform also offers little comfort for skeptics of Bradley's proposal.
From a comparative perspective, Bradley skips the chance to test his proposal against the experiences of other countries, like Australia, Britain, and Canada, that have law commissions that are supposed to institutionalize law reform and take it out of politics. Moreover, his blinkered view of law and politics greatly narrows his perspective of how criminal procedure has evolved in these and other countries. For example, he relegates to a footnote the information that before 1989 Australian efforts to reform criminal procedure that would bring it up to American standards were rejected twice by Parliament. Police opposition each time was a major factor. On one occasion the police threatened to strike if the bill passed. What effects this opposition might have on the contents or provisions of a third bill proposed by the Law Commission in 1989 does not seem to interest Bradley.
Bradley is especially keen on the England's 1984 Police and Criminal Evidence Act (PACE). Indeed, he is so keen on it that he fills 69 pages of this otherwise slim, 264 page volume with excerpts from it. Yet, the reader will look in vain for comparable attention to the politics that shaped
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this bill. Bradley overlooks that in the run-up to PACE and as possibly a testing of political waters before introducing PACE to Parliament, the Conservatives in 1980 under Margaret Thatcher's recently elected government passed a Scottish bill that considerably enhanced the powers of the police in Scotland (Baldwin and Kinsey 1980). The origins of the Criminal Justice Bill lie in a Scottish Law Commission report issued in the late 1960s while the direction of subsequent legislation reflected changes in British judicial attitudes favoring the police and the depoliticizing effects of referring the issue to a non- parliamentary committee made up of individuals who shared a prosecution view. The Labor Party failed to pass its bill that incorporated most of the committee's recommendations before Thatcher's victory in 1979. The Tories added new provisions that further strengthened police authority. While the Scottish bill sailed through high seas now and then on its way to passage, PACE encountered much rough water.
PACE''s voyage began with a royal commission created in 1977 as concerns over police abuse rose, especially among minorities, and criticism of the shackles impeding police efforts to control crime by law and order groups (including high ranking police officials) increased. When the commission released its report in 1981, it sparked a rancorous, vociferous debate (Reiner 1985). In this same year, the Brixton riots erupted (Unsworth 1982). The following year, the Conservative Party's Home Secretary introduced the first version of PACE which incorporated the royal commission's broadening of police powers but omitted or weakened the commission's recommended safeguards. Parliament greeted the bill by tabling roughly 170 amendments before the bill fell automatically with the call for the 1983 election. The second version of PACE reflected the criticisms raised against the first version as well as the suggestions of the Scarman Report on the Brixton disorders. One observer at the time described PACE as "a package which, as it has accommodated itself to the twists and turns of contradictory pressures, seems to end up really satisfying no one..." (Reiner 1985, 165).
The point here is simple. Assigning law reform to a commission provides no guarantee that the process will be insulated from politics. Nor is a commission likely to be neutral instrument of law reform. Bradley's arguments for a national commission to codify America's fourth amendment law, it seems, reflect either a naive wish to separate law from politics or a rather Machiavellian intent to solidify conservative gains by trying to depoliticize what has been political issue for many years.
Baldwin, Rob, and Richard Kinsey. 1980. "Behind the Politics of Police Powers." BRITISH JOURNAL OF LAW AND SOCIETY 7:242-65.
Reiner, Robert. 1985. THE POLITICS OF POLICING Brighton, GB: Wheatsheaf Books Ltd.
Unsworth, Clive. 1982. "The Riots of 1982: Popular Violence and the Politics of Law and Order." BRITISH JOURNAL OF LAW AND SOCIETY 9:63-85.