Dec 17, 2009 Susan Bandes
Criminal procedure and criminology have developed along oddly parallel tracks. Criminal procedure is rights-based and court-centric. It cares about policing and crime control not as subjects in their own right, but as objects of constitutional limitation. The field implicates the regulation of police behavior, but has traditionally paid little attention to police attitudes or police organizational culture. It implicates crime control, but has paid little attention to the social, political and cultural context in which the criminal process unfolds. This focus seems increasingly myopic. Most of the promising innovations in police reform and crime control have little to do with judicial enforcement of constitutional rights.
It’s been almost two decades since Robert Weisberg’s memorable skewering of criminal procedure scholars for failing to engage social science in general and criminology in particular. Robert Weisberg, Criminal Law, Criminology, and the Small World of Legal Scholars, 63 U. Colo. L. Rev. 521 (1992). More recently, David Sklansky, in his important article on democracy and policing, made a similar charge. David Sklansky, Police and Democracy, 103 Mich. L. Rev. 1699 (2005). The situation has been improving. An increasing number of criminal procedure scholars are investigating crime’s social context (for example Jonathan Simon and Bernard Harcourt), conducting their own empirical work (for example Dan Kahan, Tracey Meares and Jeffrey Fagan), or paying close attention to empirical evidence on issues like false confessions or suggestive lineups.
Eric Miller’s terrific article Putting the Practice into Theory agrees with both Weisberg and Sklansky that criminal procedure needs to engage more seriously with criminology. His unique contribution is his argument that criminology is not merely ignored or misconstrued. The problem he identifies is that criminal procedure doctrines are often premised on unstated criminological assumptions about policing and crime. These assumptions tend to be sheer speculation, and yet they are often outcome-determinative.
Take the exclusionary rule, which is by any account a core concern (Weisberg called it a fetish) of criminal procedure. The discussion about the rule and its exceptions is rife with unsupported assumptions about what deters cops and whether magistrates are deterrable. This omission is problematic in its own right. But the greater omission is the failure to investigate the impact of the exclusionary rule at the organizational level. When the Court finally turns to this question, in Hudson v. Michigan, 547 U. S. 586 (2006), it is to declare that the exclusionary rule’s work is now done. The Court assumes that the rule is rapidly outliving its usefulness, given the increased professionalism of modern police forces, the improvement in internal police discipline, and the increased availability of alternative remedies, including citizen review.
The Court, in Miller’s words, “thus stakes its regulatory regime upon a criminological claim about the institutional structure of the police, and police training.” Miller, supra, at 64. It refers to criminological literature, but in a “slapdash” manner. Miller, supra, at 65. It provides no evidence for its empirical assertion that citizen review enhances police accountability. And in a notorious misstep, the Court relies on the work of criminologist Samuel Walker to support its argument that increased police professionalism renders the rule obsolete, though Walker himself credits the rule itself for increasing police professionalism.
Criminal procedure is built around certain well-trod tensions: bright lines rules versus particularized decision-making; the primacy of the warrant versus the primacy of reasonableness; judicially-created remedies like the exclusionary rule and Miranda warnings versus various alternatives. Miller demonstrates that regulatory questions lurk behind these debates. Should regulatory standards be uniform or discretionary? What types of screening or monitoring work best? At what stage(s) should screening or monitoring for compliance with standards take place? What actors or institutions are best suited to monitor compliance? Miller, supra, at 38. He argues that rather than confront these regulatory questions head-on, standard criminal procedure discourse simply assumes that police institutional structure takes a certain form. Miller, supra, at 50.
For example, Miller argues that the familiar debate between bright line rules and particularized decision-making ought to be part of (or at least informed by) a broader regulatory debate. Is a top-down, managerial model of police regulation preferable to a model that encourages street-level cops to develop policy based on their experience and pragmatic good sense? For Miller, the problem with a bright line rule case like New York v. Belton, 453 U.S. 454 (1981), is that it assumes the existence of a managerial model in which top brass generate clear rules that effectively guide street-level cops. It never actually investigates whether the model is in place, and if so, how well it works. The problem arises when the discourse—judicial or scholarly—simply shifts between models without acknowledging or evaluating their underlying criminological assumptions.
Miller’s article is part of a stellar new symposium issue on the question “What Criminal Law and Procedure Can Learn from Criminology,” edited by David Harris and Joshua Dressler, and with articles by Harris, Eric Luna, Richard Leo and Jon Gould. The whole symposium is a must-read. Miller’s article adds a critical dimension. It’s a reminder that criminological assumptions will permeate criminal procedure whether or not criminology is taken seriously. The choice is whether to speculate and assume, or to bridge the disciplinary divide.
Dec 3, 2009 Gabriel "Jack" Chin
David Alan Sklansky,
One Train May Hide Another: Katz
, Stonewall, and the Secret Subtext of Criminal Procedure, 41
U.C. Davis L. Rev. 875 (2008).
David Alan Sklansky offers fascinating new insights into an old chestnut, Katz v. United States, 389 U.S. 347 (1967). Katz is a worthy subject, because its rejection of the “trespass” test for searches in favor of the “reasonable expectation of privacy” framework apparently heralded a new scope for the Fourth Amendment. The specific holding of Katz, that wiretapping constituted a search, overruled prior law and survives today. Yet, as the cases after Katz developed, from open fields to wired informants, the results of the new test were the same as the old test.
Together, the great criminal procedure cases of the Warren Court read like a parade of vice straight out of Guys and Dolls: The possession of dirty paperbacks at issue in Mapp v. Ohio, 367 U.S. 643 (1961), the incipient stick-up artists of Terry v. Ohio, 392 U.S. 1 (1968), the Chinese opium dealers in Wong Sun v. United States, 371 U.S. 471 (1963), the bookmaker in Spinelli v. United States, 393 U.S. 410 (1969), and the L.A. bookie in Katz itself. Sklansky proposes that with Katz, at least, this image is wrong; Katz was not only about bets and telephone booths. The secret subtext of Katz was protection of gay men from police surveillance in public restroom stalls. Sklansky advances a powerful circumstantial case that both pre-Katz jurisprudence involving gay men and the cultural context of “morals” policing of males might well have influenced the Court’s decision.
Remarkably, the phrase “reasonable expectation of privacy” originated in arguments that the police should not spy on men in bathroom stalls. In a 1966 special project, the UCLA Law Review published an empirical study of arrests for consensual sodomy in California. More than half “were made in public restrooms. Most were for sexual conduct directly witnessed by the arresting officers, typically, it seems, from hidden observation posts.” Sklansky, supra, at 887. The study criticized toilet surveillance, arguing “that the Fourth Amendment should protect ‘reasonable expectations of privacy’ in ‘semi-public places.’” Id. at 894.
The study built on ongoing litigation in California employing the same phraseology. In 1962, a pair of California Supreme Court decisions held that the police could not observe people in closed bathroom stalls from hidden vantage points. In a case involving Park Rangers observing men in bathrooms at Yosemite, the Ninth Circuit disagreed. Smayda v. United States, 352 F.2d 251 (9th Cir. 1965), cert. denied, 382 U.S. 981 (1966). However, Judge Browning’s dissent contended that the evidence had to be suppressed because defendants had a “reasonable expectation of partial privacy.” Id. at 260.
The UCLA report was noticed; for example, Look Magazine discussed it in a 1967 an article on “The sad ’gay’ life.” Similarly, while the Court ultimately denied certiorari in Smayda in spite of the conflicting decisions, Sklansky shows that it was not a routine rejection. Justice Douglas voted to take the case, and clerks for Clark and Warren also recommended a grant. Not coincidentally, the Chief’s clerk had been editor in chief of the UCLA Law Review when the study was being prepared.
Sklansky does not claim to have proved the phrase “reasonable expectation of privacy” came directly from jurisprudence involving gay men. However, he makes a compelling argument that it could have. He also points out that if Katz was not revolutionary in other areas, it did change toilet surveillance: “courts in a range of jurisdictions read Katz to provide Fourth Amendment Protection at least in enclosed toilet stalls. In doing so, they generally stressed precisely that aspect of the Katz opinions that scholars have treated as a red herring: Justice Harlan’s description of a telephone booth as a ‘temporarily private place’” Sklansky, supra, at 893.
This begs the question of why the Court would do such a thing. The Court was not broadly sympathetic to the rights of gay men and lesbians. Indeed, in Boutilier v. INS, 387 U.S. 118, 124 (1967), six justices were untroubled by a cruel statute excluding from the United States all immigrants “afflicted with homosexuality.” But perhaps gay people were like ex-Communists, whose repression, however tolerable in principle, had to be controlled lest unchecked enforcement destroy the lives of innocent people.
This part of the story begins with the 1950s “Lavender Scare”, a purge of gay people from federal employment as security risks susceptible to blackmail; “as many as 5,000 may have lost their jobs.” Sklansky, supra, at 906. “[T]he Lavender Scare quickly spread outward from investigations of government officials to embrace many other sectors of American life.” Id. at 907. Police around the country invested more resources in discovery and prosecution of gay men.
Sklansky draws on several forms of evidence suggesting that establishment opinion thought criminal suppression of gay activity went too far. In Kelly v. United States, 194 F.2d 150 (D.C. Cir. 1952), the court through Judge Prettyman reversed a conviction of solicitation for oral sodomy, explicitly reasoning that the charge was grave, yet easily falsifiable and could be preferred against ordinary, innocent citizens. A single police officer’s claim to have been propositioned, the court held, was insufficient to prove guilt. Another telling cultural artifact was Advise and Consent, a bestselling book, play and then hit film about Washington politics which included the tale of a Senator “driven to suicide by the politically motivated disclosure of a brief homosexual affair he had had during World War II.” Sklansky, supra, at 909. In the end, criminal enforcement of consensual sodomy became disfavored in the Model Penal Code, for example, because corruption of the criminal justice system and the associated invasions of privacy outweighed the cost, not because on principle gay people were entitled to live their lives without being charged with crimes.
Of course, no one will be surprised that the Court is influenced by considerations that do not appear in their opinions. But this tale of how legal change actually occurred will intrigue students of the Court and inspire further examination of the complicated interaction of doctrine and culture.
