Friday, 31 May 2002
111 Yale L.J. 2137 (2002)
Crime waves always carry with them calls for more law enforcement authority. What happened on September 11, 2001 was, among other things, a crime wave--because of that one day, the number of homicides in America in 2001 will be twenty percent higher than the year before. It is no surprise, then, that even before the fires in the rubble that was the World Trade Center burned themselves out, some politicians were calling for broader powers for law enforcement and greater restrictions on citizens, all in the effort to fight this particular crime wave.
That is not a bad thing. Law enforcement authority naturally varies with the nature and size of the crime problems police must combat. A glance at the recent history of criminal procedure shows as much. Most legal restrictions on policing date from the criminal procedure revolution of the 1960s, which itself can be seen as a consequence of the low-crime 1950s. Higher crime rates led to cutbacks in those legal protections in the 1970s and 1980s, just as lower crime rates have led to some expansion in the past few years. In short, Fourth and Fifth Amendment rights have varied with crime before, and they will probably do so in the future. As they must, if the law is to reflect a sensible balance between the social need for order and individuals' desire for privacy and liberty. The terrorist attacks on New York and Washington raised the demands on law enforcement. Those increased demands have already led to some increases in law enforcers' legal authority, and that trend will--and probably should--continue, at least for a while.
It helps to separate these legal changes (both the ones we have already seen and the ones likely to come in the near future) into two categories: special powers that are limited to the fight against terrorism, and changes in the authority of police across the board. The first is the product of federal legislation, and thus affects only a small fraction of the more than 800,000 law enforcement officers in the United States. The second is, or will be, the product of judicial decisions, for it is judges who determine the scope of Fourth and Fifth Amendment law, and it is those bodies of law that constrain the great majority of those 800,000-plus officers. The first category has gotten the most ink thus far, but the second category is more important. The sheer size of America's local law enforcement machinery means that the rules that bind it have much more to do with the amount of freedom most Americans possess than the rules that limit the power of FBI agents.
The subject of this Essay is that second category. At first blush, one might wonder whether the category will even exist. Why, after all, should the war on terrorism lead to change in the doctrines governing ordinary searches and seizures when Congress has already created targeted authority for fighting terrorists? The answer comes in three parts. First, some antiterrorism legislation is not so targeted after all: Some of the extra powers Congress has granted the FBI are general, not limited to the fight against al Qaeda. Courts will be called on to assess the constitutionality of these provisions as a general matter, not just as applied to a particular crime problem. If they are upheld, state and local governments can be expected to copy them.
Second, the domestic war on terrorism is already affecting local police departments' ability to deal with more typical sorts of crime. A lot of police manpower has been diverted to various forms of homeland security, such as guarding at-risk public spaces and responding to reports of possible attacks. That drains resources from more ordinary policing, which may in turn lead to an increase in crime generally--some cities have seen sharp increases in homicides since September 11. A general crime rise would naturally lead to calls for fewer legal restrictions on the police, as it did in both the 1960s and the 1980s. Such calls are likely even if we manage to avoid a post-September 11 surge in crime: Lowering the level of legal regulation would permit police to do the rest of their jobs more cheaply, leaving more time and personnel to devote to security against further terrorist attacks. This is a particular instance of a general point: A sharp rise in one kind of crime inevitably generates demand for greater authority to deal with other crimes.
Third, most constitutional limits on policing are transsubstantive--they apply equally to suspected drug dealers and suspected terrorists. A number of scholars have bemoaned this fact, but it remains a fact, and there is no reason to believe that current exigencies will change it. It follows that when courts approve police tactics designed to fight terrorists, they will also be sanctioning use of the same tactics against other sorts of criminals. And the transsubstantive nature of American criminal procedure matters in another important way: Judges and Justices are likely to think about the effect of their decisions on the fight against terrorism even when the underlying cases involve more ordinary sorts of policing. We have seen this before. One cannot read Fourth Amendment cases from the 1980s without sensing judicial attention to the pros and cons of the war on drugs--even when the cases did not involve drug crime. Crack dealers were the most salient crime problem a dozen years ago; now, terrorists occupy that place. And if the war on terrorism has half the effect on Fourth Amendment law that the war on drugs had, the effect will be large indeed.
For all these reasons, Fourth and Fifth Amendment law is likely to move toward greater authority for the police--not just for the FBI, and not just when fighting terrorists. The natural conclusion is that we will see a loss of individual liberty and privacy. After all, this tradeoff seems to be zero-sum. Giving ground on one side means losing ground on the other.
Yet that need not be so. As things stand now, the law that polices the police is at once too lax and too strict. It both limits police in the wrong ways and leaves them free to do the wrong things. Some of these dysfunctional features appear precisely in areas where the fight against terrorism is most likely to place pressure on the law. In the wake of September 11, these conditions present a large opportunity. It may be possible, by fixing some of the law's worst mistakes, to give the police more power while also giving citizens more liberty and privacy--a Pareto move in a sphere where such moves are rare. Now may be the time for a grand trade--greater power to catch criminals coupled with rules that limit the harm greater power can do.
My chief goal in this Essay is to suggest the outlines of such a trade. It has four elements. First, give police the power to seize or search groups, with or without any grounds for suspecting individual members of those groups. That sounds like, and is, a large gift. Yet it is also a bribe (of the healthy sort), a means of inducing police to substitute less harmful and more self-regulating tactics for more harmful and harder-to-regulate ones. Second, give police the power (more precisely, let them keep the broad power they already have) to stop and question individual suspects based on slight suspicion, but regulate the manner of those encounters more seriously. Right now, Fourth Amendment law devotes an enormous amount of attention to the fact of searches and seizures, but almost none to how those searches and seizures are carried out. That ought to be reversed; sharp legal lines between "searches" and "seizures" and everything else ought to be replaced with hazier boundaries between decent police behavior and the indecent kind. Those two changes would have a number of good effects; among other things, they might substantially reduce the harm caused by racial profiling--the practice of selecting targets of police attention based in part on race or ethnicity.
Third, give police greater power to gather information, but couple that gift with restrictions on how the information is used once it is gathered. It is one of the law's great peculiarities that privacy tends to be protected either absolutely or not at all--either no one can see the contents of my glove compartment or the police can both see it and put it on the evening news. Graded protection would make more sense, by giving police greater power to catch criminals while still guarding against the worst privacy intrusions. Fourth, give police the ability to question all arrestees, even those who have invoked their Miranda rights, but couple that with a requirement that interrogation be video- and audiotaped, so that courts can review police questioning for evidence of coercion. Current Miranda doctrine overprotects a few suspects--the few who are savvy enough to invoke their rights (and thereby opt out of questioning)--and underprotects the rest. Case-by-case review with tapes of interrogation sessions would be fairer.
Notice that racial profiling appears only indirectly on this list of proposed reforms. That might seem like a dodge. In terms of how we police the police, profiling is the great issue of our time. There was already a lively debate about it before September 11, and the mass murder that took place on that date only served to make that debate more important. Any responsible discussion that aims to reform Fourth Amendment law should, one might think, grapple with this issue. But profiling is an issue best solved by indirection. If confronted directly, it is intractable--easy to forbid in theory, impossible (and maybe inadvisable) to root out in practice, for reasons that go to the heart of why police officers do the things they do. At the same time, the size of the problem might be reduced significantly if the law did two things it does not presently do: Make alternatives to profiling cheaper for the police, and reduce the harms profiling causes when it happens. Those steps would not solve the problem--maybe they would not come close to solving the problem--but with unsolvable problems, mitigation of harm is a worthy goal.
The Essay proceeds as follows. Part I defends the proposition that the scope of Fourth and Fifth Amendment rights does and should vary (and has varied in the recent past) with crime rates. In other words, there is nothing new about, and nothing wrong with, the claim that after September 11 law enforcement authority should increase. Part II then deals with the ways that power could increase while minimizing harm to the citizenry, focusing on the elements of the trade outlined above, and, in particular, on the ways in which these legal changes might be the best available option for dealing with racial profiling. Part III concludes with a brief discussion of the feasibility of a constitutional trade like the one I suggest here.