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Back in the heady days after Mapp imposed the exclusionary rule on the states, Yale Kamisar made a prescient pronouncement: once the rule is framed as a way to deter police misconduct, instead of a way to preserve the integrity of the judicial system and its verdict, the fourth amendment loses. The benefits of deterring the police always seem to pale in comparison to the need to convict wrongdoers. And once the rule is tied to predicting police behavior, the situations in which courts predict the police will actually be deterred become fewer and fewer. And, ironically, once the rule is framed as a limit on the police in particular, it begins to feel very unfair to single the police out for criticism. Alice Ristroph argues that the erosion of the exclusionary rule can be traced to a larger problem: the misguided notion that regulating the police is the primary focus of the fourth, fifth and sixth amendments.

One important focus of criminal procedure scholarship over the last several years has been the inadequacy of constitutional litigation as a tool for regulating police. Ristroph takes up the inverse question: why should police regulation be the main focus of constitutional criminal procedure? She argues that the amendments limiting investigatory power were never meant to focus on the police in isolation (indeed, when the amendments were adopted, professional police forces as we know them today did not even exist). Instead, they are meant to enforce individual rights against government overreach.

As Ristroph points out, state coercion is typically more complex than the actions of a single government agent—or agency. To separate policing from prosecution from adjudication from punishment serves to artificially atomize an interconnected course of governmental conduct. She argues that the main goal of the fourth, fifth and sixth amendments is to regulate the whole chain of events that may land a defendant in prison. The goal is to ensure that convictions satisfy the conditions for imposing punishment—only one of which is guilt.

Especially valuable is Ristroph’s reminder that constitutional litigation, though not the best venue for top-down reform, serves important goals of its own—and that the regime of suppression motions can be celebrated for its strengths even as we acknowledge its limits. Motions to suppress evidence in case after case may be a clunky and inefficient way to facilitate reform. But they do provide a forum to individuals who wish to challenge state coercion, and who generally have few others avenues for protest—and to do with the assistance of a lawyer. They do, even when unsuccessful, impel judges to consider and articulate publicly the reasons supporting their rulings.

In short, Ristroph celebrates the assertion of fourth, fifth and sixth amendment rights as a form of resistance to power. The shift of emphasis to a resistance rationale is not mere window dressing. One of the most dispiriting trends in this jurisprudence is the Supreme Court’s refusal to credit the coercion inherent in state-citizen encounters. As Ristroph says, “across the doctrines of seizures, consent searches, and waivers of rights at interrogation, we see the Court contemplating resistance, and foreclosing as much of it as possible.” To assert the right to resist unlawful action without crossing the line (legally or psychologically) and provoking serious consequences is an increasingly delicate and perilous task. She would welcome changes in consent law and other doctrines to better reflect the imbalance of power. But more important, she advocates a more robust debate about the proper balance between state power and individual resistance.

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Cite as: Susan Bandes, How Can We Resist? Suppression of Evidence and the Limits of State Coercion, JOTWELL (February 28, 2017) (reviewing Alice Ristroph, Regulation or Resistance? A Counter-Narrative of Constitutional Criminal Procedure, 95 B.U. L. Rev. 1555 (2015)), http://crim.jotwell.com/how-can-we-resist-suppression-of-evidence-and-the-limits-of-state-coercion/.