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?
My guess is that many laypeople would respond to Cicchini’s survey of constitutional law with a shrug of the shoulders. Cicchini himself puts it this way:
I’m well aware that, at this point, many of you may be thinking, who cares? After all, constitutional rights are just technicalities anyway, and a guilty person is guilty, and shouldn’t have constitutional rights. Right? (15)
The Fourth Amendment supplies the paradigmatic example: when evidence is suppressed on Fourth Amendment grounds, the result is apt to be that a factually guilty person escapes punishment.
Maybe, then, weak rights are just fine. Maybe we should hope they become even weaker.
Cicchini, it seems to me, offers three responses to the “so what” challenge.
First, robust protections for the constitutional rights of guilty people have collateral benefits for innocent people. If the police know that they will not reap the evidentiary benefits of a poorly justified search, then they will be less likely to conduct such searches, which will enhance the privacy of everyone, guilty and innocent alike.
The argument will resonate with many people, but hardly everyone. Reasonable people, I think, might decide that they are willing to trade off some of their freedom from government intrusion in order to reduce their risk of private victimization. Just yesterday, in fact, the New York Times reported on a survey of New York City residents regarding the city’s huge increase in stops and frisks of citizens. Although 45% of respondents said the new police tactics were excessive, a slightly larger number (48%) said they were “acceptable to make New York City safer.”
Then, too, there is the unhappy reality that the risks of police intrusion are distributed unequally in society. When law-enforcement officials are given more discretion to intrude on the liberty and privacy of citizens, they will inevitably use that discretion more aggressively against minorities, poor people, and other marginalized groups. You can put a positive spin on this and say that such disparate treatment is justified because the marginalized are disproportionately likely both to commit and to be victimized by crime. Or you can put a negative spin on it and say that unfair bias is at work and that law-enforcement discretion is being used (intentionally or not) to ensure that the marginalized remain marginalized.
Either way, the point is this: if one wants to convince the insiders — the people who control the political machinery and make the important policy decisions — that we’ve gone too far in trading off liberty for security, there is a major practical challenge in that the insiders (with isolated exceptions) are not the ones who lose when liberty is sacrificed. This is reflected in the Times poll mentioned above: while 56% of black New Yorkers think that the police tactics are excessive, 55% of non-Hispanic whites find them acceptable. Easy for them to say: fully 85% of the NYC stops are of blacks and Hispanics.
Second, Cicchini argues, constitutional rights can help to prevent wrongful convictions. To focus on Fourth Amendment rights may be misleading, because, of all of the rights that Cicchini discusses, Fourth Amendment rights may be the ones most in tension with our desire to “get the bad guys.” Other rights seem more likely to enhance the accuracy of the criminal-justice system. Cicchini notes, for instance, rights to reliable identification procedures. When police are allowed to use unreliable or easily manipulable identification procedures, the risks are increased that an innocent person will be convicted. This, in turn, increases the risks that the actual perpetrator will walk free, perhaps to commit more crimes in the future.
Cicchini’s argument may be a compelling one in favor of some rights, but much less so in favor of others. Another right, for instance, that seems to fit the argument well is the right to effective assistance of counsel. But Miranda rights are rather more ambiguous, as are speedy-trial rights and (arguably, anyway) confrontation rights.
Here, too, we confront the problem that the risks of wrongful conviction are not evenly distributed across society, so insiders may be less persuaded by Cicchini’s argument than outsiders.
Finally, Cicchini contends that criminal procedure rights are necessary to hold an ever-expanding government in check. “The reality is that we live in a ‘tough on crime’ environment that has escalated, in many ways, well beyond what is rational or even beneficial for society, and we citizens need all the protection we can get.” (16-17) In developing this point, it seems that Cicchini’s concerns lie mainly with “ordinary citizens” and “morally good people” (17) who get ensnared in a monstrously harsh and unforgiving criminal-justice system. They may be guilty of a crime in a technical, legal sense, but what they have done is either not really blameworthy, or the punishment is out of all proportion to the blameworthiness.
Here’s an example (my own, not Cicchini’s). Many reasonably well-informed people are of the opinion that it is basically harmless for an individual to smoke an occasional joint in the privacy of his or her own home, and that this sort of drug use lies beyond the scope of acceptable state regulation. I won’t take a position on this viewpoint myself, but let’s assume it is correct for the sake of argument. Note, by the way, that this viewpoint is not incompatible with support for criminalization of all marijuana use; one might trust police, prosecutors, judges, and juries to exercise discretion and recognize important distinctions in deciding who should be punished under the general marijuana law.
But maybe we don’t fully trust discretion. If not, robust constitutional rights can help to ensure that there is no punishment, or at least no serious punishment, for harmless marijuana use. A strong Fourth Amendment could prevent the police from discovering in-home marijuana use. A strong jury-trial right could help to ensure that overzealous prosecutors are unable to get convictions in cases in which marijuana use, although technically illegal, does not truly violate community values. A strong Eighth Amendment could ensure that, even if there is a conviction, the amount of punishment is strictly limited. And so forth.
I suggest, in other words, that procedural rights may effectively accomplish a substantive decriminalization of behavior that should not have been criminalized in the first place.
I’m not sure if this is exactly where Cicchini means to go with his argument, but I think it does have some real appeal. If the marijuana example does not resonate with you, I don’t think it would too hard for anyone to come up with other illustrations of arguably overbroad criminal statutes that sweep in behavior that seems morally innocent, or at least innocent enough so as not to deserve serious criminal punishment.
But, again, we run into the insider/outsider problem. Overbroad criminal statutes are only a threat to you if you fear that police and prosecutors are apt to exercise their discretion against you. Insiders might feel quite differently about this than outsiders.
Without a doubt, many of Cicchini’s readers — perhaps even including some readers who are quite skeptical of defendants’ rights at the start — will be persuaded that the soft, malleable nature of so many of our constitutional rights should indeed be a matter of grave public concern. But I fear that the arguments, no matter how eloquently stated, are unlikely to move the political system in any fundamental way. And, in fairness to Cicchini, he does not suggest that there would be anything “quick or easy” about reform, and he recognizes that a major obstacle to reform is the common perception that the criminal-justice sytem is something that happens to other people — bad people who are surely guilty of what they have been accused of doing. (156-57)
I close with a parable that has been much on my mind of late. Athens and Sparta, the superpowers of ancient Greece, went to war in 431 B.C. The struggle, known to history as the Peloponnesian War, dragged on for two decades, with relentless brutality on both sides. Athens, with a dominant navy, controlled the seas, while the Spartan army was nearly invincible on land. Taking advantage of their naval strength, the Athenians seized a number of island-nations that had been connected to Sparta. They met resistance on the island of Melos, which had attempted to remain neutral in the war. Eventually, the Athenians dispatched an overwhelming military force to overcome Melian resistance.
Before attacking, the Athenians sought to negotiate a surrender. A delegation of Melians then met with the Athenians. However, if the Melians hoped to convince the Athenians that they were in the wrong — after all, Athens was attempting to subjugate a neutral country; the Athenians were plainly the aggressors — these hopes were immediately dashed; the Athenians made clear that they had absolutely no interest in discussing right and wrong. As recorded by Thucydides, the Athenians announced:
For ourselves, we shall not trouble you with specious pretenses — either of how we have a right to our empire because we overthrew the Mede, or are now attacking you because of wrong that you have done us — and make a long speech which would not be believed . . . . [Y]ou know as well as we do that right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must. (Book V, Richard Crawley trans.)
This expression, it seems to me, captures an important dimension of American attitudes toward those who bear the brunt of our nation’s law-enforcement efforts — right is only in question among equals, while the strong do what they can and the weak suffer what they must.
The Melians, by the way, refused to surrender and fought bravely, but were eventually overcome and slaughtered by the invaders.