Criminal Procedure
Combatant Status Review Tribunals: Flawed Answers to the Wrong Question
116 Yale L.J. 667 (2006) Read Geoffrey Corn, Eric Talbot Jensen, and Sean Watts's Response, Understanding the Distinct Function of the Combatant Status Review Tribunals: A Response to Blocher.
Should the Criminal Defendant Be Assigned a Seat in Court?
115 Yale L.J. 2203 (2006) In this Comment I question the U.S. Attorney's claim that every criminal defendant should be required to sit at the table farthest from the jury. Courtroom seating is properly within a trial judge's discretion, and there are good reasons for seating some criminal defendants far from the jury. Yet there are also persuasive arguments, grounded in history and precedent, for why a trial judge should allow a well-behaved criminal defendant to choose for himself where he will sit. In Part I, I suggest that the criminal defendant's autonomy to choose his seat is an important aspect of the American courtroom tradition. In Part II, I argue that the defendant's well-established freedom to control some aspects of his appearance before the jury--by wearing civilian clothes rather than prison garb, for example--implies a freedom to choose the place of his appearance as well. Part III addresses the government's response to Ramsey's letter.
Unaccountable at the Founding: The Originalist Case for Anonymous Juries
115 Yale L.J. 1823 (2006) This Comment argues that the courts overlook important Founding-era evidence on juror accountability. It concludes that the Public Trial Clause does not require juror identification. Part I describes the Public Trial Clause accountability argument made against the anonymous jury. Part II then turns to the evidence rebutting this argument--namely, that the First Congress treated juror identification requirements as statutory law, not constitutional law, and that the accountability argument is inconsistent with the theory of juries that prevailed at the Founding.
A Fair Trial Remedy for Brady Violations
115 Yale L.J. 1450 (2006) This Note proposes a new remedy for criminal defendants when the government fails to fulfill its constitutional duty to disclose favorable evidence. When evidence that should have been disclosed earlier emerges during or shortly before trial, the court should consider instructing the jury on the duty to disclose and allowing the defendant to argue that the failure to disclose raises a reasonable doubt about the defendant's guilt. Even if rarely granted, this remedy could prevent violations by encouraging prosecutorial vigilance.
A Quantitative Look at the Two-Suspect Scenario
115 Yale L.J. 1167 (2006) Two men are placed at the scene of a homicide. Each has an unsavory past and either could be the murderer--or an innocent man. It all depends on whether a witness should be believed, how the evidence is pieced together, and how the prosecutor decides to proceed. Should he try one man and set the other free? If the first prosecution fails, will he then try the second man? Can he try them simultaneously? It seems disconcerting, at best, that a prosecutor would go after two men for the same crime, knowing full well that at least one was innocent. But this is what happened in Bradshaw v. Stumpf, a case in which a prosecutor sought the death penalty against two men--admittedly accomplices--by arguing inconsistently that each was the primary aggressor who fired the fatal shot. John Stumpf was sentenced to death on a theory of the case that the same prosecutor later attacked in the trial of Stumpf's accomplice. On federal habeas review, Stumpf claimed that this tactic violated his due process right to a reliable trial. The Supreme Court left this issue unresolved when it remanded the case to the Sixth Circuit. This Comment presents a quantitative thought experiment to evaluate the claim that prosecutorial inconsistency is fundamentally unreliable. It concludes--perhaps counterintuitively--that when a prosecutor is genuinely unable to decide which of two suspects is guilty, bringing both cases to juries is the most reliable approach so long as there are protections against simultaneous convictions. While there may be other reasons to disfavor dual prosecutions, courts should reject claims of unreliability in cases in which the prosecutor has not manipulated the evidence in order to pursue multiple trials. Part I introduces the debate in the lower courts and sets out the controversy. Part II then offers a model that challenges the reliability claim.
Managing Transitional Moments in Criminal Cases
115 Yale L.J. 922 (2006) As long as some courts review the work of others, there will be situations in which governing precedent shifts during the interval between an initial decision and the underlying dispute's ultimate resolution. Although such "transitional moments" follow many appellate court decisions, several of the Supreme Court's recent criminal procedure rulings would have been especially disruptive if implemented in a maximally retrospective fashion. Focusing on direct review of federal convictions, this Article identifies and critiques one widely used method for limiting the effects of legal change: subjecting defendants who failed to raise objections that were foreclosed by controlling time-of-trial authority to a narrow form of review that virtually guarantees that their appeals will fail. The problem with applying "plain error" rules in this way is that it cannot be justified by the purposes warranting use of forfeiture rules in the direct review context. Given the unsuitability of the forfeiture approach as a means of coping with transitional moments, the Article suggests a reconsideration of the Warren Court's preferred method: nonretroactivity doctrines.
Viewing CSI and the Threshold of Guilt: Managing Truth and Justice in Reality and Fiction
The "CSI effect" is a term that legal authorities and the mass media have coined to describe a supposed influence that watching the television show CSI: Crime Scene Investigation has on juror behavior. Some have claimed that jurors who see the high-quality forensic evidence presented on CSI raise their standards in real trials, in which actual evidence is typically more flawed and uncertain. As a result, these CSI-affected jurors are alleged to acquit defendants more frequently. This Review argues that, while some existing evidence on juror decisionmaking is consistent with the CSI effect, it is equally plausible that watching CSI has the opposite impact on jurors and increases their tendency to convict. The perceived rise in acquittals can also plausibly be explained without any reference either to watching CSI or to viewing crime dramas more generally. For these reasons, and because no direct research supports the existence or delineates the nature of the CSI effect, calls for changes to the legal system are premature. More generally, the issues raised by current attention to the CSI effect illustrate the problems that arise when proposed changes in the legal system are supported by plausible, but empirically untested, "factual" assertions.
Can Attorneys and Clients Conspire?
114 Yale L.J. 1819 (2005) A conspiracy is traditionally defined as "[a]n agreement between two or more persons to commit an unlawful act." The condition that two or more persons be involved is known as the "plurality" requirement. In Farese v. Scherer, the Eleventh Circuit held that an attorney acting within the scope of representation cannot be counted as a conspirator for purposes of the plurality requirement. In other words, there can be no such thing as a conspiracy between an attorney and her client. This Comment argues that the Eleventh Circuit's limitation on attorney-client conspiracies is illegitimate as a matter of statutory interpretation and ill advised as a matter of policy. Part I sets out the facts of Farese. Part II argues that a categorical rule against attorney-client conspiracies is misguided. Part III concludes.
Overlooking a Sixth Amendment Framework
114 Yale L.J. 905 (2005) As the Supreme Court further plunges the world of criminal sentencing into turmoil, state courts in particular are scrutinizing their own statutory sentencing schemes and judicial practices. Ever since the Court's holding in Apprendi v. New Jersey (recently reformulated and expanded in Blakely v. Washington ), states have been called upon to ensure that trial judges do not usurp the jury's exclusive fact-finding power and thereby violate criminal defendants' Sixth Amendment guaranty of a trial by jury. While the legal framework that protected this Sixth Amendment right has been developing for decades, Apprendi formulated a bright-line rule that prohibits a judge from finding by herself during sentencing, instead of submitting to a jury for determination at trial, any fact that increases a defendant's sentence beyond the prescribed statutory maximum absent that fact. Under Apprendi, scores of factual determinations were taken from judges and placed back in the hands of juries. But while courts have continued to occupy themselves with defining the scope of Apprendi and its progeny, they have remained blind to a more fundamental, and increasingly prevalent, problem. By mechanically examining the effect a factor has on the length of a defendant's sentence in determining whether it must be submitted to a jury, courts have permitted the Apprendi bright-line rule to eviscerate the preexisting substantive method for making that determination. Long before Apprendi, the Court applied a less mechanical, more substantive analysis to determine whether a fact must be submitted to a jury. In Mullaney v. Wilbur, the Court analyzed how the presence or absence of a particular fact related to the underlying crime in order to determine whether or not that fact was indeed an essential element of that crime. Apprendi did not replace or eliminate the need for this Mullaney inquiry; it merely short-circuited the inquiry in cases where the finding at issue increased the sentence beyond the otherwise available maximum sentence. The current widespread misapplication of the Apprendi doctrine threatens the very Sixth Amendment and due process protections Apprendi was designed to safeguard. A recent Connecticut Appellate Court case, State v. Kirk R., illustrates this problem. The Kirk R. court, relying primarily on the Apprendi doctrine, failed to conduct a Mullaney analysis and thereby permitted the finding of a particular element of a crime to be removed from the jury's purview, allowing the trial judge to make his own unilateral determination at sentencing. Part I presents the relevant doctrinal background, describing the continuum between "element of a crime" and "sentencing factor" and demonstrating how Apprendi and its progeny do not--and were never intended to--displace the preexisting and entirely discrete element-of-a-crime analysis. Part II discusses the facts and holding of Kirk R. Part III argues that the Connecticut court improperly relied on the Apprendi doctrine as relevant to, and even dispositive of, this issue; in truth, all Apprendi could have done was remove a special protection from the Kirk R. court's arsenal, forcing the court to then apply Mullaney's more basic element-of-a-crime test. Part IV closes by addressing the impact of Blakely on this Comment's thesis.
Solving the Due Process Problem with Military Commissions
114 Yale L.J. 921 (2005) The terrorist attacks of September 11, 2001 prompted the creation of two new adjudicatory bodies within the Department of Defense. First, military commissions were established by presidential order just two months after the attacks in order to prosecute members of al Qaeda for war crimes. The commissions are non-Article III courts (although they adhere to many aspects of conventional criminal procedure) and are empowered to try persons designated by the President as eligible for trial by commission for offenses against the laws of war. No trials have yet taken place, although commissions for four detainees have been convened, and fifteen detainees have been designated for trial. Second, combatant status review tribunals (CSRTs) were created in the wake of Hamdi v. Rumsfeld to determine if detainees at Guantánamo Bay are being properly held as enemy combatants. A plurality of the Supreme Court held in Hamdi that "a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker." The CSRTs aim to provide that "fair opportunity" to individuals who the government alleges are enemy combatants and hence subject to detention until the end of hostilities. This Comment's principal goal is to explore the interplay between the military commissions and the CSRTs. A plethora of law review articles have dealt with military commissions, and the CSRTs have been covered at length in the press. There has been almost no effort, however, to analyze how the two institutions fit together or how the lessons of one could be used to solve the potential constitutional problems of the other. This Comment seeks to fill that gap. In particular, it argues that there is a serious constitutional flaw in the military commissions' procedure for establishing personal jurisdiction and that, in an ironic twist, this flaw can be mended through a modest broadening of the scope of the CSRTs' fact-finding powers. Part I describes the looming due process problem with the military commissions: that there is currently no mechanism by which individuals who dispute their eligibility to be tried by commission can resolve this jurisdictional issue. This Part argues that this aspect of the commissions' procedure is unconstitutional under case law on both Article III personal jurisdiction and unilateral executive designations. Part II contends that this due process problem can best be solved by expanding the decisionmaking range of the CSRTs. Rather than merely determining whether a detainee is an enemy combatant, the CSRTs should also decide whether a detainee found to be an enemy combatant is a lawful combatant, immune from trial by military commission, or an unlawful combatant, subject to such trial. Part II also argues that the CSRTs are better positioned to make this determination than either conventional courts or the military commissions themselves. Part III concludes.
Integrating Remorse and Apology into Criminal Procedure
114 Yale L.J. 85 (2004) Criminal procedure largely ignores remorse and apology or, at most, uses them as proxies for an individual defendant's badness. The field is preoccupied with procedural values such as efficiency, accuracy, and procedural fairness, to the exclusion of the criminal law's substantive moral values. Likewise, most legal scholars either ignore remorse and apology or squeeze them into the individual badness model, neglecting the broader roles that they can play in reconciling and educating offenders and healing victims and communities. This narrow focus on individual badness slights the broader value of remorse and apology and misses a crucial point. Crime is more than just individual wrongdoing; it harms social relationships. Currently, remorse and apology are poor gauges of how much deterrence and retribution individual offenders need. Ideally, these tools would play much larger roles in mending the social, relational harms from crime. Remorse and apology serve only as valuable ways to heal wounded relationships, vindicate victims, and educate, reconcile, and reintegrate offenders into the community. Criminal procedure should encourage and use remorse and apology to serve these substantive values at every stage, from before arrest through charging to pleas and sentences. The broader aim is twofold: to recognize the social dimension of criminal wrongdoing and punishment, and to break down the artificial separation between substantive values and criminal procedure by harnessing procedure to serve the criminal law's substantive moral goals.
Dual Sovereignty and the Sixth Amendment Right to Counsel
113 Yale L.J. 1991 (2004) United States v. Bird, 287 F.3d 709 (8th Cir. 2002); United States v. Avants, 278 F.3d 510 (5th Cir.), cert. denied, 536 U.S. 968 (2002). In Texas v. Cobb, the Supreme Court affirmed that the Sixth Amendment right to counsel is "offense specific" and attaches only to charged offenses. Prior to Cobb, lower courts had created an exception to this rule, holding that the right to counsel also attached to any additional uncharged crimes that were "factually related" to a specific charged offense. But Cobb rejected this exception and held that "offense" in the right-to-counsel context is synonymous with "offense" in the double jeopardy context. For double jeopardy purposes, a single criminal act that violates both state and federal law constitutes two separate offenses, because it violates the laws of two separate sovereigns. Thus, read literally, Cobb implies that the right to counsel can attach to a charged offense against one sovereign, but not to the same (uncharged) offense against a different sovereign.
What Feeney Got Right: Why Courts of Appeals Should Review Sentencing Departures De Novo
113 Yale L.J. 1955 (2004) Last summer, when a panel of the U.S. Court of Appeals for the First Circuit issued its initial ruling in United States v. Thurston, it plunged into a war between federal judges and Congress, as well as between district and appellate courts, over how much flexibility trial judges have to tailor criminal sentences as they see fit. The war began nearly two decades ago with the passage of the Sentencing Reform Act (SRA) of 1984 and the subsequent enactment in 1987 of the comprehensive Sentencing Guidelines regime. It flared up anew in April 2003, with the passage of the Prosecutorial Remedies and Other Tools To End the Exploitation of Children Today (PROTECT) Act of 2003, Congress's latest attempt to rein in the discretion of sentencing judges. Before the PROTECT Act, a district court's decision to choose a sentence that departed from the range recommended by the Sentencing Guidelines was to be given considerable deference by courts of appeals. In accordance with the Supreme Court's 1996 decision in Koon v. United States, appellate courts had been directed to review Guideline departures for "abuse of discretion." But the PROTECT Act's "Feeney Amendment," named after its author, Florida Representative Tom Feeney, changed the standard of review to "de novo," and seemingly invited appellate courts to regularly second-guess the sentences imposed by district judges. The Amendment, which was approved after just fifteen minutes of debate on the floor of the House of Representatives, quickly earned the condemnation of nearly the entire legal community. Until Thurston, however, courts of appeals around the country had danced around the new standard of review, asserting in case after case that their decisions would be the same using either de novo or abuse-of-discretion review. The First Circuit, which in the past had often led other courts of appeals when it came to sentencing decisions, tackled the new law head-on in Thurston.
A Better Interpretation of "Special Needs" Doctrine After Edmond and Ferguson
112 Yale L.J. 2591 (2003)
Why Contempt Is Different: Agency Costs and "Petty Crime" in Summary Contempt Proceedings
112 Yale L.J. 1223 (2003) For as long as they have existed, contempt proceedings have been the source of significant controversy, their necessity and abuse hotly contested by the legal community, the legislature, and the judiciary. The raw, unchecked power of summary contempt--the ability of a judge to imprison an individual instantaneously without trial, hearing, or counsel--is arguably a discretionary authority of unparalleled magnitude. At the same time, such authority has also been hailed as indispensable to the judiciary's function as an effective arbiter and administrator of the law. Given these polar traits of summary contempt, it is not surprising that the legitimacy and scope of the contempt power was once a topic of heated debate as well as intense academic and political scrutiny. In 1963, just five years before the Supreme Court handed down the last of a series of landmark contempt decisions in Bloom v. Illinois, one author described contempt as "a volatile, focal point of significant and timely political issues" that had been "the vehicle for deciding a variety of dramatic and significant social problems." But in the three and a half decades following Bloom--a decision that guaranteed a jury trial for any direct criminal contempt with a term of imprisonment greater than six months--the issue of contempt has gradually disappeared from judicial and academic discourse. This lack of modern-day discussion should not be taken as a sign that the contempt power is no longer exercised: It may rather evince a widespread acceptance that Bloom achieved the proper balance for contempt by placing it on the same footing as other crimes. The true reach of summary contempt in today's court system is impossible to determine, in great part due to the very opacity of its procedures. Because summary contempt, by its very nature, does not involve a prosecutor, does not fall under the federal sentencing guidelines, and is adjudicated without any published ruling and often without the defendant ever leaving the courtroom, sources of judicial statistics that might otherwise be expected to provide data on criminal proceedings are unavailing in determining the extent of the judiciary's use of summary contempt. The single collected source of reporting on contempt--appellate cases reviewing lower court contempt proceedings--may thus vastly understate the procedure's true prevalence in the judicial system. But even in the underrepresentative pool of appellate court decisions, it is clear that summary contempt is alive and well: Recent cases demonstrate that such simple provocations as an off-color remark, a late request for a jury trial, or merely staunch advocacy run the risk of costing an alleged contemnor a hefty fine or up to a half a year of his freedom. As these cases show, the exercise of the contempt power lives on, and with it questions of judicial bias and unchecked self-dealing--questions that Bloom, this Note argues, failed to address adequately. This Note seeks to reopen the discussion and pick up where Bloom left off, by reconsidering the right to a jury trial in contempt-of-court proceedings. More specifically, the following pages address whether and in what instances the right to trial by jury is constitutionally guaranteed to those accused of direct criminal contempt. It is the thesis of this Note that the current doctrine, founded upon the Court's opinion in Bloom, provides insufficient constitutional safeguards for such contemnors. Contempt proceedings differ from ordinary crimes: They raise unique concerns of impartiality and separation of powers that the jury was designed to address. By analogizing contempt to other crimes, and by extending to contempt proceedings the "petty crimes" analysis that underlies the right to a jury trial in criminal cases, the current doctrine loses sight of the purpose behind the guarantees of jury trial found in Article III of the Constitution and the Sixth Amendment. Alluring though the "petty crimes" analysis for the right to a jury trial may be, Bloom's application of that standard to contempt proceedings was erroneous, and the historical record of both the jury right and the contempt power support a more limited scope of summary adjudication than that standard provides. Accordingly, this Note strives to present a new framework within which to conceive of the right to jury trial in contempt proceedings--a framework that is more consistent with both the history of the contempt power and the theory behind the limits on jury trial for ordinary crimes. To present and justify such a framework, this Note proceeds in four parts. Part I discusses the role of the jury, examining historical sources to demonstrate that one of the jury's primary purposes was to act as a guard against consolidated power, corruption, and self-dealing. As the political discussion surrounding Article III and the Sixth Amendment demonstrates, a central function of the jury was to align incentives of the judiciary with those of the citizenry from which it derived its authority--to act as a solution to what is now commonly known as the "principal-agent problem." By permitting the "principal" to make decisions when the stakes were high, the jury ensured that the judiciary was accountable to the people it purported to serve. For the same reason, juries were deemed unnecessary when the potential for judicial self-dealing and the stakes of adjudication were both low: There was no right to a jury trial when the offense was a "petty crime" that did not affect the judge and that carried a relatively minor punishment. Part II considers why, given the functional role of the jury outlined in Part I, contempt is different from other crimes for the purposes of the right to a jury trial. Although the punishments for contempt and ordinary crimes may be analogous, the incentives for judges in both instances are not. Contempt provides a greater temptation for judges to deviate from the will of the citizenry, and accordingly generates greater agency costs than do other crimes. Part III discusses why this difference matters from the perspective of the right to a jury trial. Combining the analysis in Parts I and II, it concludes that summary adjudication of contempt, if allowed at all, should be more limited in scope than the current doctrine requires. To supplement this critique, Part IV proposes a number of potential means by which the conclusions of Part III might be implemented. Although the appropriate balance between summary contempt and jury trials may be impossible to determine, the summary contempt power as it currently stands is unjustifiable in its breadth. Accordingly, this final Part offers possible solutions to achieve a more appropriate standard for the adjudication of contempt and considers the costs of such solutions. Part IV concludes with a discussion of the practical difficulties of implementing any possible solutions to the current, erroneous doctrine surrounding contempt. In so doing, it provides a final illustration of how the same judicial self-dealing that makes current contempt doctrine inappropriate has also historically acted to prevent its correction--whether attempted through legislative, executive, or judicial channels.
Are Police Free To Disregard Miranda?
112 Yale L.J. 447 (2002) This Article contends that the common understanding of Miranda as a direct restraint on custodial interrogation by police is mistaken. Instead, Miranda, like the privilege against compulsory self-incrimination that serves as its constitutional foundation, is a rule of admissibility. As the text of the privilege, the Supreme Court's Fifth Amendment jurisprudence, and the Miranda majority's reasoning all demonstrate, neither the privilege nor Miranda can be violated without use of a compelled statement in a criminal case. Miranda controls police conduct only indirectly, by requiring suppression of statements taken in violation of the Miranda rules. At least two significant consequences flow from this understanding. First, police violations of the Miranda rules alone cannot support civil lawsuits under 42 U.S.C. 1983. Second, and more importantly, police have no constitutional obligation to comply with the Miranda warnings and waiver regime. Rather, police are free to disregard Miranda if they deem it advantageous. If the Supreme Court had fashioned a stringent Miranda exclusionary doctrineÜone similar to that which applies when prosecutors compel testimony by use of immunity grantsÜpolice would have good reason to comply with the Miranda rules even absent a constitutional duty. But, the Court has done the opposite, creating a host of evidentiary incentives for police to violate those rules. Thus, it is not surprising that some police officers and departments deliberately disregard Miranda in order to benefit from those incentives. Because many federal appellate courts already have interpreted Miranda as a rule that governs only admissibility, and there is a good chance that the Supreme Court will construe the privilege accordingly when it decides Chavez v. Martinez this Term, Miranda°s future appears bleak. It is likely that the Court will signal to police that they have no constitutional duty to follow Miranda rules and, at the same time, will leave intact its decisions tempting police to violate those rules. This Article offers an alternative approach, one by which the Court squares its Miranda doctrine with its treatment of the privilege in other contexts. This proposed approach would mandate that the Court treat Miranda as a rule of admissibility but also would require that it rethink many of the decisions that entice police to violate the Miranda rules.
Local Policing After the Terror
111 Yale L.J. 2137 (2002) Crime waves always carry with them calls for more law enforcement authority. What happened on September 11, 2001 was, among other things, a crime wave--because of that one day, the number of homicides in America in 2001 will be twenty percent higher than the year before. It is no surprise, then, that even before the fires in the rubble that was the World Trade Center burned themselves out, some politicians were calling for broader powers for law enforcement and greater restrictions on citizens, all in the effort to fight this particular crime wave. That is not a bad thing. Law enforcement authority naturally varies with the nature and size of the crime problems police must combat. A glance at the recent history of criminal procedure shows as much. Most legal restrictions on policing date from the criminal procedure revolution of the 1960s, which itself can be seen as a consequence of the low-crime 1950s. Higher crime rates led to cutbacks in those legal protections in the 1970s and 1980s, just as lower crime rates have led to some expansion in the past few years. In short, Fourth and Fifth Amendment rights have varied with crime before, and they will probably do so in the future. As they must, if the law is to reflect a sensible balance between the social need for order and individuals' desire for privacy and liberty. The terrorist attacks on New York and Washington raised the demands on law enforcement. Those increased demands have already led to some increases in law enforcers' legal authority, and that trend will--and probably should--continue, at least for a while. It helps to separate these legal changes (both the ones we have already seen and the ones likely to come in the near future) into two categories: special powers that are limited to the fight against terrorism, and changes in the authority of police across the board. The first is the product of federal legislation, and thus affects only a small fraction of the more than 800,000 law enforcement officers in the United States. The second is, or will be, the product of judicial decisions, for it is judges who determine the scope of Fourth and Fifth Amendment law, and it is those bodies of law that constrain the great majority of those 800,000-plus officers. The first category has gotten the most ink thus far, but the second category is more important. The sheer size of America's local law enforcement machinery means that the rules that bind it have much more to do with the amount of freedom most Americans possess than the rules that limit the power of FBI agents. The subject of this Essay is that second category. At first blush, one might wonder whether the category will even exist. Why, after all, should the war on terrorism lead to change in the doctrines governing ordinary searches and seizures when Congress has already created targeted authority for fighting terrorists? The answer comes in three parts. First, some antiterrorism legislation is not so targeted after all: Some of the extra powers Congress has granted the FBI are general, not limited to the fight against al Qaeda. Courts will be called on to assess the constitutionality of these provisions as a general matter, not just as applied to a particular crime problem. If they are upheld, state and local governments can be expected to copy them. Second, the domestic war on terrorism is already affecting local police departments' ability to deal with more typical sorts of crime. A lot of police manpower has been diverted to various forms of homeland security, such as guarding at-risk public spaces and responding to reports of possible attacks. That drains resources from more ordinary policing, which may in turn lead to an increase in crime generally--some cities have seen sharp increases in homicides since September 11. A general crime rise would naturally lead to calls for fewer legal restrictions on the police, as it did in both the 1960s and the 1980s. Such calls are likely even if we manage to avoid a post-September 11 surge in crime: Lowering the level of legal regulation would permit police to do the rest of their jobs more cheaply, leaving more time and personnel to devote to security against further terrorist attacks. This is a particular instance of a general point: A sharp rise in one kind of crime inevitably generates demand for greater authority to deal with other crimes. Third, most constitutional limits on policing are transsubstantive--they apply equally to suspected drug dealers and suspected terrorists. A number of scholars have bemoaned this fact, but it remains a fact, and there is no reason to believe that current exigencies will change it. It follows that when courts approve police tactics designed to fight terrorists, they will also be sanctioning use of the same tactics against other sorts of criminals. And the transsubstantive nature of American criminal procedure matters in another important way: Judges and Justices are likely to think about the effect of their decisions on the fight against terrorism even when the underlying cases involve more ordinary sorts of policing. We have seen this before. One cannot read Fourth Amendment cases from the 1980s without sensing judicial attention to the pros and cons of the war on drugs--even when the cases did not involve drug crime. Crack dealers were the most salient crime problem a dozen years ago; now, terrorists occupy that place. And if the war on terrorism has half the effect on Fourth Amendment law that the war on drugs had, the effect will be large indeed. For all these reasons, Fourth and Fifth Amendment law is likely to move toward greater authority for the police--not just for the FBI, and not just when fighting terrorists. The natural conclusion is that we will see a loss of individual liberty and privacy. After all, this tradeoff seems to be zero-sum. Giving ground on one side means losing ground on the other. Yet that need not be so. As things stand now, the law that polices the police is at once too lax and too strict. It both limits police in the wrong ways and leaves them free to do the wrong things. Some of these dysfunctional features appear precisely in areas where the fight against terrorism is most likely to place pressure on the law. In the wake of September 11, these conditions present a large opportunity. It may be possible, by fixing some of the law's worst mistakes, to give the police more power while also giving citizens more liberty and privacy--a Pareto move in a sphere where such moves are rare. Now may be the time for a grand trade--greater power to catch criminals coupled with rules that limit the harm greater power can do. My chief goal in this Essay is to suggest the outlines of such a trade. It has four elements. First, give police the power to seize or search groups, with or without any grounds for suspecting individual members of those groups. That sounds like, and is, a large gift. Yet it is also a bribe (of the healthy sort), a means of inducing police to substitute less harmful and more self-regulating tactics for more harmful and harder-to-regulate ones. Second, give police the power (more precisely, let them keep the broad power they already have) to stop and question individual suspects based on slight suspicion, but regulate the manner of those encounters more seriously. Right now, Fourth Amendment law devotes an enormous amount of attention to the fact of searches and seizures, but almost none to how those searches and seizures are carried out. That ought to be reversed; sharp legal lines between "searches" and "seizures" and everything else ought to be replaced with hazier boundaries between decent police behavior and the indecent kind. Those two changes would have a number of good effects; among other things, they might substantially reduce the harm caused by racial profiling--the practice of selecting targets of police attention based in part on race or ethnicity. Third, give police greater power to gather information, but couple that gift with restrictions on how the information is used once it is gathered. It is one of the law's great peculiarities that privacy tends to be protected either absolutely or not at all--either no one can see the contents of my glove compartment or the police can both see it and put it on the evening news. Graded protection would make more sense, by giving police greater power to catch criminals while still guarding against the worst privacy intrusions. Fourth, give police the ability to question all arrestees, even those who have invoked their Miranda rights, but couple that with a requirement that interrogation be video- and audiotaped, so that courts can review police questioning for evidence of coercion. Current Miranda doctrine overprotects a few suspects--the few who are savvy enough to invoke their rights (and thereby opt out of questioning)--and underprotects the rest. Case-by-case review with tapes of interrogation sessions would be fairer. Notice that racial profiling appears only indirectly on this list of proposed reforms. That might seem like a dodge. In terms of how we police the police, profiling is the great issue of our time. There was already a lively debate about it before September 11, and the mass murder that took place on that date only served to make that debate more important. Any responsible discussion that aims to reform Fourth Amendment law should, one might think, grapple with this issue. But profiling is an issue best solved by indirection. If confronted directly, it is intractable--easy to forbid in theory, impossible (and maybe inadvisable) to root out in practice, for reasons that go to the heart of why police officers do the things they do. At the same time, the size of the problem might be reduced significantly if the law did two things it does not presently do: Make alternatives to profiling cheaper for the police, and reduce the harms profiling causes when it happens. Those steps would not solve the problem--maybe they would not come close to solving the problem--but with unsolvable problems, mitigation of harm is a worthy goal. The Essay proceeds as follows. Part I defends the proposition that the scope of Fourth and Fifth Amendment rights does and should vary (and has varied in the recent past) with crime rates. In other words, there is nothing new about, and nothing wrong with, the claim that after September 11 law enforcement authority should increase. Part II then deals with the ways that power could increase while minimizing harm to the citizenry, focusing on the elements of the trade outlined above, and, in particular, on the ways in which these legal changes might be the best available option for dealing with racial profiling. Part III concludes with a brief discussion of the feasibility of a constitutional trade like the one I suggest here.
Between Local Knowledge and National Politics: Debating Rationales for Jury Nullification After Bushell's Case
111 Yale L.J. 1815 (2002)