Michael Cicchini has an entertaining (in a dark, ironic sort of way) new book. The title pretty clearly indicates Cicchini’s perspective: Tried and Convicted: How Police, Prosecutors, and Judges Destroy Our Constitutional Rights. The heart of the book is a survey of our basic constitutional rights, one chapter per right. A central theme in this survey is that the courts have interpreted the familiar Fourth, Fifth, and Sixth Amendment rights such that they are, as Cicchini puts it, “soft law” — “vague, malleable, and subject to a tremendous amount of discretion under a facts-and-circumstances type of analysis.” (11) In his view, this approach to constitutional rights stacks the deck in favor of police and prosecutors and against defendants. The soft formulation “allows the police to create the facts and circumstances necessary to circumvent — or, more accurately, destroy — constitutional rights.” (15) Prosecutors and judges, Cicchini observes, may do the same.
The result is a set of constitutional rights that are probably much less protective of defendants than many laypeople realize. Cicchini identifies the major absurdities and unexpected gaps in the law. I don’t know if Cicchini is an admirer of the late Christopher Hitchens, but his excellent blog features a quote from Hitchens, and Cicchini seems to take a similar delight in skewering hypocrisy and intellectual laziness. Although the book is intended for a general audience, Cicchini’s acerbic prose makes it a good read even for someone who is already familiar with the legal issues he discusses.
But, aside from entertainment value, what is the point of demonstrating that the courts are, to put it charitably, inconsistent in their support of defendants’ rights? (more…)