Enduring Principles and Current Crises in Constitutional Criminal Procedure


Susan R Klein

24 Law & Social Inquiry 533


Akhil Amar informs his readers that he will attempt to analyze the Fourth, Fifth, and Sixth Amendments from the perspectives of text, history, and structure, in order to lay bare their first principles. The first principle is summed up concisely: the Constitution seeks to protect the innocent. My Review Essay will show that Amar's vision of the animating principle behind the Bill of Rights is myopic and his analysis fails to mesh with the empirical world of criminal law practice. My critique breaks down into two general categories. The first concerns his legal and historical analysis. History and wisdom indicate that Amar's animating principle -- the pursuit of truth -- is not the only, or even, perhaps, the most important, principle at work in the Bill of Rights. For example, Amar may be accurate in stating that warrantless searches were not a concern of the framers when the Fourth Amendment was adopted. However, to conclude from this that the Court's current warrant preference is backwards ignores the fact that only a warrant or well delineated exception can effectuate the values underlying the Amendment under current social conditions. This is because the Fourth Amendment was not designed primarily to protect the innocent, but was instead a profoundly anti-government amendment designed to control governmental power. The second category of criticisms I will level concerns whether Amar's suggested reforms will actually take us any closer to his first principle, protecting the innocent, or to others primary principles in the Bill of Rights, such as fairness and equality. I conclude that his suggestions will do neither. For example, elimination of the exclusionary sanction will do little to ensure reliable convictions, as only a small fraction of guilty defendants are released on this basis. However, it will ensure that police officers lack guidance on how to conduct a lawful search, and that minorities and disfavored groups disproportionately suffer from harassment by law enforcement officers. In actuality, the bulk of miscarriages of justice are produced not from any constitutional jurisprudence that Amar will reform, but rather through inaccurate eyewitness testimony, high pressure plea bargaining, defendants' inability to obtain exculpatory evidence from the government, lack of funding for criminal defense attorneys, defendants' inability to adequately investigate the facts, and vague and malleable criminal laws. Yet both Amar and the Court have failed to suggest any clause of our constitution as a remedy for these serious failings. Finally, Amar's proposed first principle fails to address some of the most significant issues in constitutional criminal procedure. These problems, in what I consider to be descending order of importance, concern race relations in law enforcement and the Court's unwillingness to extend either Equal Protection or Fourth Amendment protection to minorities in any useful manner; the ongoing collapse of the criminal/civil divide, rendering the application of the Fourth, Fifth, and Sixth Amendments uncertain; and the excessive and multiple punishments inflicted upon defendants from the combination of federal and state criminal statutory explosions and the lack of any viable protection under present Fifth Amendment Double Jeopardy and Eighth Amendment Excessive Fines and Cruel & Unusual Punishment jurisprudence.

Full Citation

Susan R. Klein, Enduring Principles and Current Crises in Constitutional Criminal Procedure, 24 Law & Social Inquiry 533 (1999) (essay reviewing The Constitution and Criminal Procedure: First Principles, by Akhil Reed Amar).