Vol. 15 No.11 (November 2005), pp.979-983

 

ABOUT GUILT AND INNOCENCE: THE ORIGINS,   DEVELOPMENT, AND FUTURE OF CONSTITUTIONAL CRIMINAL PROCEDURE, by Donald A. Dripps. Westport, CT: Praeger Publishers, 2003. 320pp. Hardback. $85.95/£48.99. ISBN: 0275977307.

 

Reviewed by Adil Ahmad Haque, Law Clerk to the Honorable Jon O. Newman, United States Court of Appeals for the Second Circuit. Email: adil.haque [at] aya.yale.edu.

 

In ABOUT GUILT AND INNOCENCE, Donald Dripps analyzes more than a century of case law and synthesizes many of the positions and techniques he has developed over the course of his career. The result of his efforts is a distinctive and distinguished contribution to both constitutional law and criminal procedure.

 

The first three chapters follow Supreme Court case law through three periods of doctrinal development. In the first period, the procedural provisions of the Bill of Rights are broadly construed and strictly enforced against the federal government, while the states are subject only to discrete directives of fundamental fairness. In the second period, the procedural provisions are selectively incorporated against the states; the law governing state and federal officials merges; and both regimes are weakened as judges narrow and contort language and history to accommodate the felt necessities of law enforcement. In the third period, conservative balancing replaces bright-line rules, and law enforcement interests are privileged over the interests of individual defendants. Chapter Four traces the law of police interrogation through each period and features an incisive analysis and original critique of MIRANDA v. ARIZONA (1966).

 

Chapters 5 and 6 complete the case against earlier doctrinal frameworks and lay out Dripps’ instrumental theory of due process under the Fourteenth Amendment. The instrumental theory insists that searches and seizures must reliably result in crime prevention or criminal prosecution, that trial procedures must reliably result in accurate verdicts (with a preference for acquittal of the guilty over conviction of the innocent), and that arrest and detention must be narrowly tailored to serve compelling state interests. Dripps proposes a contingent exclusionary rule to remedy constitutional violations. Under this rule, courts may present officials with the choice to either proceed without illegally obtained evidence or pay court-calculated monetary damages. The final chapter draws on the instrumental theory as well as Equal Protection principles to frame a number of reform proposals directed at eyewitness identification, the use of police informants, pretrial depositions, and racial discrimination.

 

The first five chapters are lively and perceptive, often dazzlingly insightful; the remainder is provocative and interesting, but somewhat less than wholly satisfying. Dripps devotes large portions of the first and second chapters to his attack on the textual and historical foundations of selective incorporation, [*980] but the textual and historical case for his instrumental theory is presented in a single paragraph (p.142). The third, fourth, and fifth chapters explain how authoritarian judges can arrive at a desired result by weighing the general value of truth-seeking against the interests of a particular (typically guilty) defendant in walking free, yet in the single paragraph acknowledging that his instrumental theory is addressed to a conservative judiciary Dripps simply professes his faith that this too shall pass (p.187). Dripps’ contingent exclusionary rule is designed to reduce pressure on judges to favor the government in suppression hearings but, since the same psychological dynamic is said to result in narrow constructions of constitutional provisions, his proposed remedy could rehabilitate the very theory of selective incorporation he opposes. Dripps denies that his instrumental theory of due process encompasses equal protection (pp.108-09), but does not pause to consider the implications of this distinction for the doctrine of reverse incorporation (BOLLING v. SHARPE (1954)). Finally, Dripps does not engage at length with competing reform proposals; even readers who are convinced that the instrumental theory is preferable to existing doctrine might wonder whether superior alternatives are available elsewhere.

 

Dripps rejects incorporation of the procedural protections of the Fourth, Fifth, and Sixth Amendments, supports incorporation of the substantive protections of the First and Eighth Amendments, but he prematurely terminates his brief attempt to reconcile these two positions (pp.152-55). Dripps ultimately claims that his argumentative burden is only to defend disincorporation of the procedural provisions. Incorporation of the substantive provisions, he writes, “ha[s] at least some support in text and history, and [is] overwhelmingly confirmed by precedent” (p.154). This is cold comfort, since “some support in text and history” is not enough to save the procedural provisions, and since just five pages later Dripps describes a process by which settled precedent can be legitimately overturned when no longer supported by a current majority.

 

Dripps argues that the procedural provisions cannot be “fundamental,” because investigative procedures that reliably result in prosecution or prevention, as well as trial procedures that reliably result in conviction of the guilty and exoneration of the innocent, give the autonomy, privacy, and dignity of criminal defendants all the respect they deserve (pp.105-07). The degree of suspicion adequate to justify a search may depend on the privacy and dignity interests implicated by the type of search, but not, according to Dripps, by the object of the search. Dripps’ proposed cleavage of criminal procedure from substantive criminal law is surprising considering his earlier suggestion that the requirements of the former derive from the structure and function of the latter (pp.101-02). Yet criminal procedure should not, on his view, respond to the substance of the law enforced.

 

In response to Dripps’ content-neutral vision of criminal procedure, the remainder of this short review touches lightly on two procedural provisions—relating to unreasonable searches and seizures as well as to compelled self-incrimination—which may provide [*981] content-based constraints on the enforcement of criminal prohibitions, reflecting values not adequately protected by the substantive provisions alone.

 

Presumably, a just criminal law will prohibit wrongdoing but will not unduly restrict morally important activities. Furthermore, a just criminal law will only punish those forms of wrongdoing that invade rights which must be vindicated or cause harms which must be prevented. Under the Constitution, morally important liberties are protected by the various guarantees of enumerated and unenumerated rights, while the Eighth Amendment ensures that punishment promotes legitimate penal interests in retribution and harm prevention. Substantive Due Process under the Fifth and Fourteenth Amendments synthesizes these constraints in the requirement that prohibition of a protected activity must be justified by reference to a legitimate state interest (Haque 2005).

 

There are, however, forms of wrongdoing which, though deserving of punishment, should not be criminalized or punished because investigation and prosecution would unacceptably infringe upon personal privacy. Similarly, there are forms of punishable wrongdoing which, for the sake of preserving personal liberty, should not result in arrest and pretrial detention.

 

The Fourth Amendment was framed against a background of common law tort remedies (Amar 1997), and this indicates that the concept of reasonableness is best understood not as an epistemic concept but as a moral concept. A reasonable search is not merely a reliable search—one which enjoys a high ex ante probability of uncovering evidence of legal guilt—but a justified search—one which appropriately balances individual and state interests. Eighteenth century courts were apparently willing to balance the intrusiveness of a challenged search against the seriousness of the suspected offense (Rosen 2001, at 36-37, 78), and the Supreme Court has at times claimed to adhere to the same method (e.g., WYOMING v. HOUGHTON (1999)). Ironically, Dripps rejects the Fourth Amendment’s warrant requirement but embraces probable cause (an evidentiary standard) rather than reasonableness (a moral standard) as the constitutional touchstone for searches and seizures.

 

Interestingly, a substantive understanding of Fourth Amendment reasonableness is suggested by Justice Douglas’ opinion in GRISWOLD v. CONNECTICUT (1965). Douglas does not assert the moral permissibility and value of non-procreative sex, and on that basis argue that it should receive constitutional protection. Douglas in fact indicates that restrictions on the manufacture or sale of contraceptives would be permissible even though they would burden the disputed activity. Rather, Douglas indicates that the search of the home for evidence of the underlying offense is per se unreasonable, because such a search intrudes too deeply into marital privacy (GRISWOLD, at 486-87).

 

Though the suggested reading cuts against Dripps’ content-neutral vision of criminal procedure, it provides a strong foundation for his claim that “[t]o permit the police to inflict a sanction in the investigative process that no court could [*982] impose as a sentence would violate” due process (p.106). Finding that the Fourth Amendment permits custodial arrest upon probable cause of any illegal act, the Supreme Court has upheld a custodial arrest for an offense (failure to wear a seat belt) not punishable by imprisonment (ATWATER (2001)). More recently, now-Chief Justice and then-Judge John Roberts found that it is constitutionally (but not morally) reasonable to arrest a 12 year-old girl for eating a single french fry in the Washington, D.C., Metro (HEDGEPETH (2004)). The reliabilist reading of the Fourth Amendment poses as much of a threat to Dripps’ above-quoted principle as to the privacy interests protected by the proposed understanding of constitutional reasonableness. Dripps invokes “minimal substantive due process” to address restraints on liberty not narrowly tailored to serve compelling state interests (p.144), but it remains unclear why this judicial technique is preferable to the reasonableness inquiry directed by the constitutional text.

 

More speculatively, it is possible that the prohibition on compelled self-incrimination, whatever its original rationale, favors the manifest pattern of criminality over the subjective pattern (Fletcher 1978). By obstructing punishment of acts whose wrongfulness depends on an agent’s motivating reasons, the prohibition insulates from effective prosecution the myriad forms of “mendacity, selfishness, treachery, greed, cruelty, hypocrisy, [and] cowardice” (Katz 2002, at 455) that are certainly wrongful and arguably deserving of punishment but probably should not be subject to the criminal process. Morality pervasively regulates our motivations as well as our actions; the criminal law must do so selectively or risk greater oppression than prevention.

 

Despite apparent limitations of the instrumental theory as well as unexamined attractions of selective incorporation, ABOUT GUILT AND INNOCENCE remains an outstanding book. Its doctrinal analysis is clear and compelling; its proposals are thoughtful and interesting, and its exposition is elegant and engaging. The book is a credit to its author and a model for the field.

 

REFERENCES:

Amar, Akhil Reed. 1997. THE CONSTITUTION AND CRIMINAL PROCEDURE: FIRST PRINCIPLES. New Haven: Yale University Press.

 

Fletcher, George P. 1978. RETHINKING CRIMINAL LAW. Boston: Little, Brown.

 

Rosen, Jeffrey. 2001. THE UNWANTED GAZE: THE DESTRUCTION OF PRIVACY IN AMERICA. New York: Vintage. 

 

Haque, Adil Ahmad.  2005. “Lawrence v. Texas and the Limits of the Criminal Law.” Working Paper, available on Social Science Research Network (SSRN), http://ssrn.com/abstract=616942 (October 25, 2005).

 

Katz, Leo. 2002. “Villainy and Felony.” 6 BUFFALO CRIMINAL LAW REVIEW 451-82.

 

CASE REFERENCES:

ATWATER v. CITY OF LAGO VISTA, 532 U.S. 318 (2001). [*983]

 

BOLLING v. SHARPE, 347 U.S. 497 (1954).

 

GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965).

 

HEDGEPETH v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, 386 F.3d 1148 (D.C. Cir. 2004).

 

MIRANDA v. ARIZONA, 384 U.S. 436 (1966).

 

WYOMING v. HOUGHTON, 526 U.S. 295 (1999) (Scalia, J.).

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© Copyright 2005 by the author, Adil Ahmad Haque.