abstract. For more than a century, the Supreme Court has applied the unconstitutional conditions doctrine in many contexts, scrutinizing government efforts to condition the tradeoff of rights for benefits with regard to speech, funding, and takings, 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 often do—surrender their constitutional rights under the Fourth, Fifth, and Sixth Amendments in return for some benefit. Despite its insistence that the unconstitutional conditions doctrine applies broadly across the Bill of Rights, the Court’s 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 height 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 leveraging 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.

authors. Kay L. Levine is Professor of Law and Associate Dean for Research, Emory University School of Law. Jonathan Remy Nash is Robert Howell Hall Professor of Law and Co-Director of the Center on Federalism and Intersystemic Governance, Emory University School of Law. Robert A. Schapiro is Dean and C. Hugh Friedman Professor of Law, University of San Diego School of Law. This work benefitted enormously from the thoughtful questions and comments we received from participants at the Neighborhood Criminal Justice Roundtable at the University of Virginia School of Law, the Emory-UGA Summer Symposium at the University of Georgia School of Law, Crimfest at Cardozo School of Law, the Markelloquium! at New York Law School, and the Colloquium Series Workshop students at Emory Law School. We owe a particular debt of gratitude to Lynn A. Baker, Mitchell Berman, Darryl K. Brown, Russell Gold, Philip Hamburger, Orin Kerr, Steven A. Koh, Michael J.Z. Mannheimer, Robert Mikos, Eve Brensike Primus, Nirej Sekhon, and Ron Wright. Valuable research assistance was provided by Amar Adam, J. Michael Babineau Jr., Maxim Belovol, Suresh Boodram, Eitan Ezra, Quinn Fetterly, Danielle Fong, Adriano Iqbal, Lucy Lansing, Kaela Palmiter, Anne Reid, and Ryan Smith.

Government is a monopoly provider of countless services, notably law enforcement, and we live in an age when government influence and control are pervasive in many aspects of our daily lives. Giving the government free rein to grant conditional benefits creates the risk that the government will abuse its power by attaching strings strategically, striking lopsided deals and gradually eroding constitutional protections.

—United States v. Scott (9th Cir. 2005)1

I’m thinking about all of the criminal law rights . . . where a state will condition your . . . getting a lesser recommendation . . . at sentencing, for example, with you giving up your right to a trial, giving up your right to appeal. I mean, those are really significant things. And the Court apparently doesn’t ask the question, is an unconstitutional condition happening in that circumstance?

—Justice Ketanji Brown Jackson (2022)2

Introduction

For more than a century, Supreme Court jurisprudence addressing when the government can legitimately require a person or entity to yield a constitutional right in return for a benefit has centered on the First Amendment, the Fifth Amendment’s Takings Clause, and, more recently, Article I’s Spending Clause. In contexts as diverse as taxation, licensing, federal employment, and funding for reproductive care, the Justices have considered the burdens imposed by conditional offers made by the government by referring to a range of factors that implicate or signal coercion. The factors include the strength of the government’s interest, the strength of the individual’s interest, the germaneness of the condition, and the degree of proportionality between the condition and the government’s interest.3 Taken together, these factors comprise the Court’s “unconstitutional conditions doctrine.” While scholars contest how coherent the doctrine is—some even asserting that it is not a “doctrine” in the formal sense of the word4—its influence on the scope of many government programs and regulatory schemes is beyond dispute.

But as the opening quotation from Justice Jackson makes clear, the unconstitutional conditions doctrine and the accompanying set of analytical factors have remained conspicuously absent from the Supreme Court’s jurisprudence on coercive rights-for-benefits arrangements in the criminal procedure context. When considering government tradeoff schemes that implicate the Fourth Amendment right to be free from unreasonable searches, the Fifth Amendment privilege against self-incrimination, the Fifth Amendment right to substantive due process in plea deals,5 and the Sixth Amendment rights to a jury trial and to confront witnesses, the unconstitutional conditions doctrine is nowhere to be found. When it comes to criminal procedure rights, the Justices appear utterly unwilling to police the fairness of the exchange for proportionality, germaneness, abuse of leverage by the government, or other signs of coercion.

We contend that the disparity between the Court’s treatment of rights-for-benefits schemes in the criminal procedure context and in other contexts is harmful and unwarranted. It seems to elevate certain provisions of the Bill of Rights over others: free speech and property rights receive favored treatment,6 while rights against police or prosecutorial coercion are given the cold shoulder.7 Moreover, the Court applies constitutional principles inconsistently across the population, because different categories of rights are generally exercised by different categories of people. Property owners, organizations receiving federal funds, and government employees are permitted to use the unconstitutional conditions doctrine to challenge zoning regulations or burdens on their First Amendment rights.8 But the Court has refused to recognize unconstitutional conditions arguments made by individuals accused of crimes and those receiving social benefits—persons who tend to struggle socioeconomically.9 The Court’s differential use of the unconstitutional conditions doctrine thus makes a bad situation worse, further marginalizing already marginalized populations and giving advantaged populations one more mechanism to help advance their interests.

In keeping with Justice Jackson’s recent observation, this Article is the first to thoroughly examine the complete absence of the unconstitutional conditions doctrine in the Court’s criminal procedure jurisprudence and to discuss the consequences of that omission for vulnerable populations.10 The rights of the American populace have long been burdened by statutory schemes that impose, for example, implied consent to blood-alcohol testing on drivers (in exchange for the privilege of driving on public roadways),11 drug testing on employees or students (in exchange for a job in the public sector or a place in a public-school extracurricular program),12 evidentiary rules on prisoners (in exchange for a grant of parole or probation), and plea bargain terms on those charged with crimes (in exchange for the guarantee, or prospect, of a reduced sentence postconviction).13 The unconstitutional conditions doctrine would offer a new way to gauge the constitutionality of these rights-for-benefits schemes and to evaluate the level of government coercion experienced by those charged with or suspected of crimes. We advocate embracing the doctrine as a mode of analysis in the Court’s criminal procedure docket and offer the first sustained exploration of what the doctrine might accomplish for rights jurisprudence in that area.

To be sure, application of the unconstitutional conditions doctrine would not always invalidate prosecutorial or police practices, but sometimes it will—resulting in more protection for disadvantaged populations.14 For example, the doctrine would prompt courts to carefully assess plea bargain terms on the basis of the level of coercion they impose, and to judge them accordingly as either appropriate or out of bounds. Distinctions between terms might take several forms. First, they might differ as to core function. Waiver of the rights to a jury trial, to cross-examine witnesses, and to examine physical evidence are implicit in the core bargain required for a defendant to plead guilty, but waiver of the right to appeal is not. For that reason, the appellate waiver should require more justification because it binds the individual too far into the future, beyond the trial itself.15 Second, terms differ in their ability to chill even an innocent person’s desire to go to trial; terms that drastically increase the penalty a person faces after conviction at trial compared to conviction by plea have—in rare instances—been identified as unacceptably coercive, but with the unconstitutional conditions doctrine this conclusion should be more frequent.16 And terms that insulate the government from appellate review of structural errors or that “embargo . . . judicial and advocate mistakes,”17 such as waiver of the right to appeal or waiver of the right to raise habeas claims,18 should be rejected in the absence of significant and specific justification. In other areas of law, courts have recognized that certain structural interests are so important that the government cannot condition a benefit on their waiver;19 the same standard should apply here. Invoking the doctrine to address Fourth, Fifth, and Sixth Amendment questions should, in other words, force the Court to directly and transparently address how the coercion faced by those charged with crimes compares to the coercion faced by other rightsholders, using concepts such as germaneness, proportionality, and the like. The Court should acknowledge the various ways in which the tradeoff of rights-for-benefits exploits the vulnerability of people throughout the population. The selective shield of the unconstitutional conditions doctrine should no longer extend only to those wielding rights to free speech or property.

The Court’s choice of favored rights and rightsholders seems hard to justify under any theory of the judicial role. In its unconstitutional conditions jurisprudence, the Court has expressed compassion for rightsholders who are “especially vulnerable”20 to government coercion—and its attention to the “vulnerable” represents a logical focus of judicial concern. But the Court uses this language most prominently in its Takings Clause cases and in recent fiscal-federalism jurisprudence, not in the criminal procedure docket.21 In our view, those involved in the criminal legal system or in the public-benefits system—who do not receive any protection from the doctrine—are much more “vulnerable” to coercive government pressure than property owners who seek zoning exemptions or states that resist federal entreaties to expand Medicaid coverage.22

The Court’s discounting of criminal procedure rights in the unconstitutional conditions line of cases also directly contradicts its language in the incorporation line of cases. Considering incorporation under the Fourteenth Amendment requires the Court to assess whether state (and local) law enforcement and courts should be held to the same standard as their federal government counterparts.23 In this set of cases, the Court has repeatedly stressed that the Fourth, Fifth, and Sixth Amendment protections are “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.”24 They are the literal foundation of our justice system.25 Viewed from this perspective, even within the self-referential jurisprudential universe that it has created, the Court’s decision to embrace property owners and states while neglecting those charged with crimes appears asymmetrical.

Some might argue that injecting the unconstitutional conditions doctrine into the criminal procedure realm would severely disrupt the criminal legal system, or perhaps render it unworkable. While those fears ought not to be taken lightly, we believe that they are misplaced. Lower courts have invoked the doctrine to evaluate a range of state statutes and regulations;26 these efforts show that unconstitutional conditions analysis is entirely compatible with the criminal legal system’s administrative requirements. What the unconstitutional conditions doctrine offers is a greater respect for the rights of the defendant population than the jurisprudence we have now. Moreover, even if using the doctrine imposes a significant practical burden on the government in some instances, such burdens also accompany other areas of government-citizen encounters, such as zoning rules. These are the costs associated with identifying rights as fundamental.

We begin in Part I by situating our project within the existing scholarly treatment of the unconstitutional conditions doctrine. Unlike other commentators, we focus not on the overall coherence of the doctrine, nor on the factors that courts employ when applying it, but instead on the doctrine’s limited reach based on Supreme Court precedent. Part II takes the reader on a quick tour of the existing doctrinal landscape, reviewing the primary contexts in which statutory or regulatory rights-for-benefits schemes have been litigated before the Supreme Court.

The heart of the article begins in Part III, as we examine the neglected fields of criminal procedure in which the unconstitutional conditions doctrine could have, but so far has not, played a role in developing the underlying jurisprudence. We consider first the range of Fourth Amendment warrant exceptions that have emerged independently of the unconstitutional conditions doctrine and then address two issues in Fifth and Sixth Amendment jurisprudence that likewise have not received the doctrine’s protection: self-incrimination in post-conviction prisoner proceedings and the set of rights that must be waived during plea deals. In this Part of the Article we also spotlight instances of lower courts using the unconstitutional conditions doctrine to address Fourth, Fifth, and Sixth Amendment controversies. These cases serve three purposes in this Article: they establish that the doctrine can be effectively deployed in these areas; they provide concrete, real-world examples of what the unconstitutional conditions analysis looks like in the criminal procedure context; and they show the effect on case outcomes that the doctrine sometimes produces. The Supreme Court’s consistent failure to invoke the doctrine to address criminal procedure issues thus appears to reflect not an inherent limitation of the doctrine, but a choice by the Court to protect only certain rights and certain rightsholders.

The final two Parts of the Article offer the reader a chance to step back from the particular doctrines discussed in Parts II and III, to examine the origins and larger implications of the overall pattern we have documented. In Part IV, we explore potential reasons for the Supreme Court’s refusal to apply the unconstitutional conditions doctrine in the context of criminal procedure. We turn our attention first to features of the legal system and then address aspects of the social and political landscape that might explain the Court’s decision-making in this area. In Part V, we consider what it means for the Court to have excluded entire sections of the Bill of Rights from the shield provided by the doctrine. We begin by looking closely at two cases from the lower federal courts in which use of the doctrine led to clear victories for the defendants. We then analyze the harmful impact produced by the Court’s preference for protecting property and monetary rights over the rights of vulnerable populations in its analysis of government coercion. We argue that the shield offered by the unconstitutional conditions doctrine must be stripped of its selectivity, and that the Court must bring criminal procedure rights into alignment with the remaining provisions of the Bill of Rights in order to afford equal justice under law to people across the socioeconomic spectrum.