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.
REFERENCES
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.