Police, Prosecutors, Courts, and the Constitution: Toward Ending the “Awful but Lawful” Era 3031390814, 9783031390814

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Charles E. MacLean James A. Densley

Police, Prosecutors, Courts, and the Constitution Toward Ending the “Awful but Lawful” Era

Police, Prosecutors, Courts, and the Constitution

Charles E. MacLean • James A. Densley

Police, Prosecutors, Courts, and the Constitution Toward Ending the “Awful but Lawful” Era

Charles E. MacLean School of Criminology and Criminal Justice Metropolitan State University Brooklyn Park, MN, USA

James A. Densley School of Criminology and Criminal Justice Metropolitan State University Brooklyn Park, MN, USA

ISBN 978-3-031-39081-4    ISBN 978-3-031-39082-1 (eBook) https://doi.org/10.1007/978-3-031-39082-1 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland Paper in this product is recyclable.

Acknowledgments

Thank you to James, my steadfast partner in this adventure, whose insights and deep knowledge helped this volume shine. Your leadership and creativity are unexcelled. I dedicate this book to my wife, Marie, without whom I would be utterly lost, and to my children—Dustin, Bart, Chan, Ben, and Kirby—and my grandchildren— Bradley, Kate, Charlie, Hazel, Earl, Kayden, Lyla, Logan, Colbie, and Spencer— who lighten my life and my load and warm my heart. And to my dogs, Meka and Cocoa, who only intermittently make room for me on the bed. I am thankful for all my life’s lessons, whether painful or rewarding or both; each left its mark (or scar) and each left me indelibly the better for it. —Chuck I would like to express my deepest gratitude to my coauthor, Chuck, for inviting me on this journey and for his invaluable expertise throughout the writing process. Chuck, your steadfast commitment to justice and equity is an inspiration to us all, and it is reflected in every word of this book. This work would not have been possible without your vision and dedication; or your good humor, which made even the most challenging writing days enjoyable. I would also like to thank our colleagues at Metro State University for their support and encouragement, especially those who provided insights that helped shape this work. And to my family, especially my wife, Emily, thank you for your unwavering patience and understanding during the long hours spent writing, editing, and revising this book. Finally, I would like to express my appreciation to our publisher, Springer, and everyone involved in bringing this book to life. Your commitment to quality and professionalism is evident on every page. —James

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Contents

Part I Setting the Stage 1

Introduction��������������������������������������������������������������������������������������������     3

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 The United States Constitution and the Social Contract ������������������     9 The Social Contract����������������������������������������������������������������������������������    12 The United States—A Product of Its Time����������������������������������������������    13 A Call for a Return to the Warren Court Era ������������������������������������������    17 Discussion Questions ������������������������������������������������������������������������������    24

Part II Police, Misconduct, and Supreme Court Complicity 3

Moral Injury, Compound Officer Trauma, and Officer Mental Health����������������������������������������������������������������������������������������    27 Moral Injury and Ethical Trauma������������������������������������������������������������    28 Organizational Triggers���������������������������������������������������������������������������    29 Organizational Structure����������������������������������������������������������������������    29 Police Culture��������������������������������������������������������������������������������������    30 Police Training and Discretion Creep��������������������������������������������������    33 Operational Triggers��������������������������������������������������������������������������������    34 Individual Predispositions������������������������������������������������������������������������    34 Group Stigma and Self-Stigma������������������������������������������������������������    35 Compound (Complex) Trauma������������������������������������������������������������    36 The Effect of Moral Injury and Trauma on Officer Mental Health and On-the-Job Performance��������������������������������������������������������    36 Getting Beyond Moral Injury and Trauma����������������������������������������������    39 Discussion Questions ������������������������������������������������������������������������������    40

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 Court-Approved Police Deception in Obtaining Consent to Search    41 The Supreme Court and the Fourth Amendment ������������������������������������    43 The Hits Keep Coming����������������������������������������������������������������������������    45 Moving Forward��������������������������������������������������������������������������������������    48 Discussion Questions ������������������������������������������������������������������������������    49

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Contents

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 Court-Approved Police Deception in Interrogations��������������������������    51 Miranda Warnings in Context������������������������������������������������������������������    52 The Right to Remain Silent, Silenced������������������������������������������������������    56 We Will Be Silent No More ��������������������������������������������������������������������    60 Discussion Questions ������������������������������������������������������������������������������    61 Appendix: Police Deception and Interrogations��������������������������������������    62 State Court Decisions Permitting Deception in Interrogations������������    62

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Fourth Amendment Erosion and Novel Crime-Fighting Technologies��������������������������������������������������������������������������������������������    69 The Tortoises and the Hare����������������������������������������������������������������������    70 Fatalistic Attitudes Toward Technology Loss of Privacy in the Digital Age ������������������������������������������������������������������������������������    73 The Framers’ Fourth Amendment Foundations ��������������������������������������    74 Secrecy: Constitutional Overreach Thrives in Darkness����������������������    75 Evolution and Erosion of Fourth Amendment Foundations����������������    76 Politics, Balancing, Judicial Activism, and the Fourth Amendment������������������������������������������������������������������������������������������    77 What Remains of the Fourth Amendment Today������������������������������������    78 Selected Novel Crime-Fighting Technologies ����������������������������������������    79 Fingerprinting and AFIS����������������������������������������������������������������������    80 Two-Dimensional X-Rays��������������������������������������������������������������������    80 Three-Dimension Imaging and Modeling��������������������������������������������    80 Backscatter X-Rays and X-Ray Vans��������������������������������������������������    81 Accident Reconstruction, Arson Investigation, and Other Judgment Tools, Not Science��������������������������������������������������������������    81 Polygraphs��������������������������������������������������������������������������������������������    81 Computerized Voice Stress Analysis (“CVSA”)����������������������������������    82 DNA Genotypes, Phenotypes, and Familial Matching������������������������    82 Thermal Imaging����������������������������������������������������������������������������������    82 Smartphones, Dirtboxes, Stingrays, and CSLI������������������������������������    83 Geofencing������������������������������������������������������������������������������������������    84 Automated License Plate Readers (“ALPR”)��������������������������������������    84 GPS Vehicle Tracking and EZ-Pass ����������������������������������������������������    85 Videos, Body-Worn Cameras, Surveillance Architecture, and Pole Cameras��������������������������������������������������������������������������������    85 Drones, Robotics, and Aerial Surveillance������������������������������������������    85 Facial Recognition ������������������������������������������������������������������������������    86 Webtracking, Social Media, Big Data Aggregation, Insourcing, and Data-Mining ��������������������������������������������������������������    87 Predictive Policing and Artificial Intelligence (“AI”)��������������������������    87 Brain Fingerprinting and Whatever Else Tomorrow May Bring����������    88 Solutions, Wise and Otherwise����������������������������������������������������������������    89 Transparency����������������������������������������������������������������������������������������    89 Community Oversight and Input ��������������������������������������������������������    90

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Katz and “Anything But Katz”������������������������������������������������������������    90 Use the Carpenter Privacy Model��������������������������������������������������������    90 Economics of Fourth Amendment Applications����������������������������������    90 Equilibrium Adjustment Approach������������������������������������������������������    91 Informational Security Approach��������������������������������������������������������    91 The Tyrant Test������������������������������������������������������������������������������������    92 Justice Sotomayor’s Jones Concurrence and the Cybersurveillance Non-­intrusion Test�������������������������������������������������    92 Ending the Awful But Lawful Era of Secret, Unregulated Novel Crime-­Fighting Technologies��������������������������������������������������������    93 Discussion Questions ������������������������������������������������������������������������������    94 7

 Police Discriminatory Enforcement and Excessive Force������������������    95 Excessive Force����������������������������������������������������������������������������������������    97 Deadly Encounters ����������������������������������������������������������������������������������    99 Discriminatory Enforcement��������������������������������������������������������������������   100 Holding Officers Accountable for Misconduct: Addressing Police Unions and Qualified Immunity������������������������������������������������   103 Discussion Questions ������������������������������������������������������������������������������   105

Part III Prosecutor Misconduct and Supreme Court Complicity 8

Prosecutors’ Obligations for Post-­conviction Integrity and Due Process Review������������������������������������������������������������������������   109 Largely Unchecked Prosecutorial Power ������������������������������������������������   110 Rules and Ethics Codes Applicable to Prosecutors Are Aspirational Only����������������������������������������������������������������������������������������������������������   112 NDAA (2023) Sets Prosecutors’ Aspirational Quests for Handling Post-­conviction Matters ��������������������������������������������������������������������������   113 Prosecutors Must Be Quasi-Judicial Ministers of Justice��������������������   113 2008 ABA Model Rules Amendment Clarified Prosecutor Obligations Post-conviction��������������������������������������������������  115 The Growth of the Wrongful Conviction and Innocence Movements����������������������������������������������������������������������������������������������   116 Prosecutors Supporting Suspect Convictions��������������������������������������   117 Prosecutors Eschewing or Embracing Progressive Prosecution Principles����������������������������������������������������������������������������������������������   118 Prosecutors Restricting Post-conviction Review to Factual Innocence Cases Only��������������������������������������������������������������������������   118 Prosecutors Ignoring or Opposing Well-Supported Post-­conviction Requests for DNA��������������������������������������������������������������������������������   119 Prosecutors Ignoring Requests for Relief When Sentencing Was Not Fair and Just��������������������������������������������������������������������������   120 Toward Justice: Creating and Nurturing Conviction Integrity Units (“CIUs”) in Prosecutors’ Offices����������������������������������������������������   120 Discussion Questions ������������������������������������������������������������������������������   124

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Plea Bargaining: Ascendancy and Improper Prosecutorial Leverage and Deceit������������������������������������������������������������������������������   125 Ascendancy of Plea Bargaining ��������������������������������������������������������������   126 Courts’ Roles in Creating and Amplifying Prosecutorial Power ������������   127 Legislatures’ Roles in Creating and Amplifying Prosecutorial Power����   129 Improper Leverage in Plea Bargaining����������������������������������������������������   131 Deception in Plea Bargaining������������������������������������������������������������������   132 The Corrosive Impact of Unchecked Prosecutor Power on Defendants’ Agency to Decide������������������������������������������������������������������������������������   133 Can We Make Plea Bargaining More Lawful and Less Awful?��������������   135 Discussion Questions ������������������������������������������������������������������������������   138

Part IV Conclusion 10 The  Way Forward: A Conclusion and Call to Action ������������������������   141 Other Awful But Lawful Practices in the U.S. Criminal Justice System������������������������������������������������������������������������������   142 Cash Bail����������������������������������������������������������������������������������������������   142 Federal Sentencing Guidelines and Mandatory Minimums����������������   144 Life Without Parole for Young People ������������������������������������������������   145 The Justice Gap, Justice by Geography, and the Death Penalty����������   145 Prosecutorial Use and Abuse of the Harmless Error Doctrine������������   147 Felon Disenfranchisement ������������������������������������������������������������������   147 Habeas Relief and Factual Innocence��������������������������������������������������   149 Zero or Insufficient Compensation for Wrongful Convictions������������   149 The Path Lies Before Us��������������������������������������������������������������������������   150 Discussion Questions ������������������������������������������������������������������������������   152 References ��������������������������������������������������������������������������������������������������������  153 Index������������������������������������������������������������������������������������������������������������������  177

Part I

Setting the Stage

Chapter 1

Introduction

This volume confronts the reality that American criminal justice is in the midst of the “awful but lawful” era where unethical and unconstitutional (i.e., awful) behavior by police and prosecutors is rampant and roundly encouraged by the United States Supreme Court. At its core, the book’s mission is a call to action to work toward ending the “awful but lawful” era of ignoring constitutional safeguards, festering police trauma and moral injury, consistent police deceit in obtaining consent and interrogating suspects, the vanishing Fourth Amendment in the digital age, slow adoption of conviction integrity efforts, and improper prosecutor leverage and deceit in plea bargaining. We look back at the criminal justice system 25 years ago with derision and wonder “what were they thinking?” Twenty-five years from now, those who follow us will wonder what we were thinking in this “awful but lawful” era. The time for evolution and revolution is upon us; let us meet the moment. This volume proceeds in three sections and a total of nine chapters. Each chapter addresses at least one feature of today’s American criminal justice system that is “awful but lawful.” In Chap. 2, we address the United States Constitution and the Social Contract and define the Social Contract as the set of natural rights captured and guaranteed by the Constitution and its Bill of Rights. The first chapter shows how the United States Supreme Court has weakened the Constitution and diminished the Social Contract since Chief Justice Earl Warren stopped leading the Court in the late-1960s. Court majorities subsequent to the Warren Court have presided over a time of unprecedented decline in constitutional rights by granting police and prosecutors increasing power with little oversight while diminishing the protections the Framers designed the Constitution to ensure. The Social Contract and the Constitution that embodied it are shadows now of the vision they once offered—that Government was created and designed by the People with limited powers and with a constitutional obligation to honor individuals’ constitutional rights. To move toward ending the “awful but lawful” era, we must return to the criminal procedure jurisprudence of the Warren Court with a majority committed to delivering the

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 C. E. MacLean, J. A. Densley, Police, Prosecutors, Courts, and the Constitution, https://doi.org/10.1007/978-3-031-39082-1_1

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1 Introduction

quantum of substantive and procedural justice the Social Contract and the Constitution command. In Chap. 3, we address the moral injury and compound officer trauma that too often plague American peace officers and wound their mental health. Officers suffer moral injury when they are obliged to exhibit or observe behaviors on the job that are inconsistent with their personal moral belief structures (Litz et  al., 2009; Schröder-Bäck et al., 2022; see also, Griffin et al., 2019). That moral injury is exacerbated by the compound trauma that each officer absorbs at work when the officer experiences the next traumatic event (first responder to a fatal crash, suicide, sexual assault, a threat to the officer’s life or safety, and so on) when the officer has not yet recovered from the traumas they have experienced before (Papazoglou & Tuttle, 2018). Complicit, too, are rotating shifts, long hours, long stretches of boredom punctuated by intense trauma and stress, and the confounding nature of striving to be a public servant protecting those in need and doing “the right thing” while the Supreme Court and department leadership encourage the officer to lie, deceive, use excessive force, cover for one another, silo by socializing only with other officers, and the like—hopelessly schizophrenic (Caldero & Crank, 2015; Klockars, 1980; Blumberg et al., 2020). Moreover, the hyper-masculine nature of much of policing, and the group stigma and self-stigma it engenders, too often leads officers to think of seeking mental health counseling as a sign of weakness and incompatible with career requirements and advancement (Bullock & Garland, 2018; Drew & Martin, 2021; Doyle et  al, 2021; Edwards & Kotera, 2021; Papazoglou & Tuttle, 2018; Velasquez & Hernandez, 2019). Once an officer is suffering from compound trauma, unremitting stress, and moral injury, the fallout for the officer and for the public can be overwhelming. Such an officer is prone, on the personal scale, to depression, substance misuse, obesity, compassion fatigue, moral compromise, disillusionment, disengagement, sleep disorders, and many more negative sequelae (Blumberg, 2022; Blumberg & Papazoglou, 2019; Blumberg et al., 2018, 2020; Boccher, 2022; Hartley, 2016; Conn & Butterfield, 2013; Doyle et al., 2021; Edwards & Kotera, 2021; Hartley et al., 2016; Klimley et al., 2018; Papazoglou et al., 2019; Papazoglou & Chopko, 2017; Sherwood et al., 2019; Tuttle et al., 2019b). Those officers are also a danger to self and others on the job as they misperceive threats as more serious and closer than they are, and see options and alternatives as fewer (MacLean & Lamparello, 2022; Verhage et al., 2018). Such officers can develop tunnel vision and audio exclusion and tend to use force sooner, use greater force, and shoot sooner and less accurately (Verhage et al., 2018). To end this “awful but lawful” scourge, police leadership must model mental health, provide officer counseling services, reduce overtime and rotating shift work, offer support for officers’ families, and provide many more strategies outlined in Chap. 3. In Chap. 4, we discuss court-approved police deception in obtaining consent to search. Consent searches make up perhaps 98% of all police searches (Strauss, 2002b), need not be based on probable cause or reasonable suspicion, are usually not confined to a particular enumerated list of items to be searched for and seized, and are not approved in advance by a neutral magistrate (Maclin, 2008). Officers virtually never are required to justify why they asked anyone for consent to search.

1 Introduction

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Furthermore, most civilians are unaware that they can refuse or delimit consent for a search (Chanenson, 2004), but the Supreme Court has never required that officers seeking consent advise the subjects of their rights to refuse or limit consent (that is, the Supreme Court has never crafted a Miranda-like warning and notice for consent searches (Schneckloth v. Bustamonte, U.S., 1973). That is a recipe for the consent search tableau we see today with officers freely deceiving civilians into consenting to searches that those civilians have every right to refuse or limit (Burke, 2016; Gau, 2013). Such consent must be given “voluntarily” to be constitutional (Florida v. Royer, U.S., 1983), but in a string of decisions the Supreme Court has found voluntariness when virtually no one else would. Arrests and nonconsensual searches require at least probable cause; vehicle stops require at least reasonable and articulable suspicion; consent searches require no evidentiary showing at all. Technology and information saturation in the digital age, coupled with the third-party doctrine, have made obtaining evidence by consent easier than ever before. To move toward ending “awful but lawful” consent searches, we must begin by recognizing that consent obtained through deception is not voluntary and is not even consent at all and must interpose (under the federal Constitution or under state constitutions) a notice of rights requirement a la Miranda warnings for consent searches. In Chap. 5, we discuss police deception of civilians during and leading up to interrogations. One would think that the spate of wrongful convictions, rightful exonerations, and false confessions would have taught us far more than we appear to have learned. First, individuals have a right to remain silent (U.S. Const. amend. V). Waivers of that right must be knowing, intelligent, and voluntary and police deception ploys during the time before the interrogation begins can unconstitutionally mislead individuals into giving up the right to remain silent—a waiver borne of police deception is not knowing, intelligent, or voluntary, and thus is not a waiver at all. Second, deception during interrogations, such as by exaggerating evidence or making up forensic lab results or any of thousands of other ploys, is regularly used by police to lead the subject to confess or provide other admissions. Consider that for one moment: the police deceive and coerce subjects they are interrogating to cause them to confess or make other admissions—that is why the officers deceive them; thus, those subjects wanted to remain silent—as is their constitutional right— but the officer deceived them into giving up that right to remain silent, that is, the officer deceived the subject into confessing. That is not a voluntary statement at all. Nonetheless, the Supreme Court has applied an absurdly soft “totality of the circumstances” test to determine voluntariness of waivers of the right to remain silent, and the Court has habitually found purported voluntariness when virtually no one else would. The Court is elevating police expedience and majority preferences over minority and suspect rights. That is unconstitutional. Some states are beginning to forbid police deception when interrogating juveniles and other states are considering broader bans. Left intact, court-sanctioned police deception in interrogations violates suspects’ constitutional rights and erodes public trust in police, courts, and the entire criminal justice system. To move toward ending this “awful but lawful” practice of police deception in interrogations, we must insist the courts adhere to the

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1 Introduction

Constitution and the Social Contract and honor and affirm the protections implicit and explicit therein. Chapter 6 covers court-sanctioned Fourth Amendment erosion and legislative reticence to regulate digital surveillance in the digital age and their impacts on novel crime-fighting technologies already in use and those yet to be imagined. The tortoises and the hare fable would be an apt analogy if only the hare had won: surveillance technologies in the digital age move along like the hare at breakneck speed with new surveillance technologies developed before the constitutionality of old surveillance technologies has been decided by the Court (one tortoise). And Congress (the other tortoise) has been glacially slow to react to new crime-fighting technologies. Meanwhile, criminals are only too happy to adopt new technologies and police feel duty-bound to use advancing technologies to beat the criminals at their own game. While we fiddle and fret, however, our privacy rights are eroding in the digital age; the courts and Congress are not at the wheel—programmers are. The Supreme Court has pressed the Fourth Amendment’s reasonableness clause into service by crafting out of sheer cloth a balancing test weighing individuals’ privacy interests to be free from digital surveillance against the government’s need to use those digital age surveillance techniques to solve crimes efficiently and expeditiously. But the reasonableness clause was never meant to serve as the yardstick for determining which warrantless searches were constitutionally permissible—that is a fabrication from the Supreme Court. And the Constitution protects individuals’ rights to be free from government overreach and intrusion; the Constitution does not protect those individuals’ rights only if they are consistent with police expedience. Already license plate readers and face recognition software can capture and store almost cost-free every vehicle’s and driver’s identity. Police equipment masquerading as cell phone towers triangulate suspect locations. And drones, artificial intelligence, predictive policing, and other digital police surveillance tools are already here and largely unregulated. The future may bring brain fingerprinting, DNA assessments of genetic propensity to dangerousness for those seeking bail or on probation, and one can only imagine what else. To move toward ending the “awful but lawful” practice of leaving novel police crime-fighting technologies unregulated, Congress and the courts must step up. Congress is perhaps best suited here since courts must wait for particular cases and controversies to make their way up the court’s docket. Chapter 7 addresses police discriminatory enforcement and use of excessive force. Persons and communities of color in the United States are over-policed, over-­ sentenced, and underserved. Investigations, vehicle stops, ticket issuance, formal charging, bail setting, convictions, sentence severity and departures, and the like— nearly all steps of the criminal justice process—are inequitably distributed by race and sometimes by wealth. That is unacceptable, unconstitutional (U.S.  Const. amend. XIV), and awful. At the same time, an inordinate number of unarmed Black males are being victimized by police using non-lethal and lethal force. That is a travesty. The courts exacerbate these practices by holding that officers’ subjective intents are irrelevant, officers are protected by qualified immunity, we can measure the constitutionality of uses of force at the moment of the use and ignore bad police

1 Introduction

7

tactical choices that caused the emergency in the first place, and numerous other police-apologist principles. This may be the “awful but lawful” category that those who follow us will most roundly ridicule. They will rightly ask, “What were they thinking in the 2020s; how could they so unequally distribute criminal justice that should be equivalently distributed to all?” The lintel atop the United States Supreme Court building in Washington DC proclaims “EQUAL JUSTICE FOR ALL.” To move toward ending these “awful but lawful” practices of discriminatory enforcement and police use of excessive force, we must deliver on that proclamation. In Chap. 8, we address prosecutors’ obligations as “ministers of justice” to revisit cases after conviction and sentencing to ensure they were constitutionally and providently entered. Too many prosecutors fight hard to protect convictions and actively oppose efforts legislatively and in individual cases to verify the integrity of prior cases. To be sure, some progressive prosecutors in a few jurisdictions have begun meaningful efforts at conviction integrity, but only 15% of the American public has ever lived in a jurisdiction that seated a progressive prosecutor (Didwania, 2022, Appendix). Some prosecution offices have created conviction integrity units to delve into complaints of wrongful convictions and remedy them were appropriate, but more than half of existing conviction integrity units have never undertaken even a single exoneration. Prosecutors are obligated to seek justice and not just convictions. Extrapolating from that obligation, prosecutors are also obligated to strive to set free those wrongfully convicted and set right miscarriages of justice. To move toward ending the “awful but lawful” prosecutor practice of ignoring, avoiding, or actively opposing conviction integrity efforts, we all must require of our elected prosecutors a commitment to right those wrongs. Chapter 9 covers plea bargaining in the United States today when well over 90% of criminal cases end in negotiated pleas of guilty (ABA, 2023, note 2, citing Gramlich, 2019; Alkon, 2014, p. 562; Hashimoto, 2008, p. 949) and jury trials are the rare exception rather than the rule. Plea bargaining for prosecutors is a bonanza. Mandatory minimum sentences, sentencing guidelines structures, and the legislative explosion of the numbers, degrees, and severity of criminal laws all have made the prosecutor—by far—the most powerful person in every courthouse. Prosecutors pick the playing field for every case and when a prosecutor decides the charges to file in a criminal case that prosecutor largely decides the sentence as well. Too much of plea bargaining happens in private (ABA, 2023, Principles 13–14; Barkow, 2006; Schneider & Alkon, 2019)—often without even the defendant in the room where the case is being resolved. And judges are often happy that prosecutors are plea bargaining their trial calendars out of existence. Defendants, too, often benefit from plea bargaining since they can end up with the best result possible. But the problem is that the Constitution and its criminal procedure protections in the Bill of Rights were written and ratified when there were no plea bargains so the Framers crafted in the Sixth Amendment a series of protections to hold an overreaching government prosecutor at bay. There are no such Sixth Amendment guardrails today when almost all cases are plea bargained and almost no trials are conducted. Criminal procedure rules and prosecutor ethics codes must also evolve to meet the moment in this plea bargaining era so prosecutor power is constrained, prosecutor decisions are

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public, and prosecutor misconduct results in discipline. The Framers created the Constitution, in part, to protect criminal defendants from the prosecutorial and police excesses they experienced under the Crown. To move toward ending “awful but lawful” unrestrained and secret uses of prosecutor power in the plea bargaining era, plea bargaining must be transparent, the Courts must supervise plea bargaining, and prosecutorial ethics codes must be revised to require prosecutor adherence to full pre-plea discovery and fair dealing. Finally, in Chap. 10, we have amassed a number of other “awful but lawful” criminal justice system practices today and offered solutions for them: pretrial release conditions, cash bail, federal sentencing guidelines, life without parole sentencing, the justice gap, justice by geography, capital punishment, the harmless error doctrine, felon disenfranchisement, habeas corpus restrictions and factual innocence requirements, and uneven or no compensation for those wrongfully convicted. And in Chap. 10, we propose a path forward to move toward ending the “awful but lawful” era: by implementing the recommendations in this book, with sustained efforts by policymakers, practitioners, and the public, and guided by a shared commitment to justice and a recognition that every individual deserves to be treated with dignity and respect under the Social Contract, we can create a criminal justice system that is lawful and a lot less awful. Let us be the change agents that nudge the system toward delivering a better quantum of justice for all.

Chapter 2

The United States Constitution and the Social Contract

Summary • This chapter introduces the central thesis of the book: that for the “awful but lawful” era of criminal justice to end, America must return to its roots and appreciate and interpret the United States Constitution as the Social Contract between the People and their Government. • In the post-George Floyd era, we can and must demand more of our law enforcement officers, prosecutors, and courts that judge their adherence to the Constitution. • The Social Contract suggests that individuals give up certain rights and freedoms to the government in exchange for protection and security. The legitimacy of the government thus is based on the consent of the governed and their agreement to live under the rules and laws of the Social Contract. • For years, criminal justice professionals have been enabled by the courts, including and perhaps especially the U.S. Supreme Court, to engage in all manner of “awful but lawful” behavior that falls far short of what the Social Contract requires. • The majorities during the Warren Court era honored the Social Contract more consistently and faithfully than any of the subsequent Supreme Court eras to date.

This opening chapter sets the stage for the central thesis of this book: appreciating and interpreting the United States Constitution as the agreement—the Social Contract—between the People and their Government. For too long, morally questionable and unpopular actions taken by law enforcement officers and officials have been explained away by the popular refrain, “awful but lawful” (Foody, 2021). “Social contract theories provide that rational individuals will agree by contract, compact, or covenant to give up the condition of unregulated freedom in exchange © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 C. E. MacLean, J. A. Densley, Police, Prosecutors, Courts, and the Constitution, https://doi.org/10.1007/978-3-031-39082-1_2

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for the security of a civil society governed by a just, binding rule of law. The legal system of the United States has an important relationship to social contract theory” (Allen, 1999, p. 2). Examples of “awful but lawful” law enforcement conduct may include the use of force during an arrest or search, the execution of a search warrant in a manner that may be seen as intrusive or aggressive, and even the extrajudicial killing of unarmed civilians. These actions have been deemed awful by the public because they seem excessive or unjustified and they offend our sense of justice or fairness. However, they are lawful because they have been upheld by the courts as “necessary” to maintain public safety. According to the United States Supreme Court, these awful acts are authorized by law or fall within its boundaries. It is well understood that just because an action is lawful does not necessarily make it morally or ethically acceptable. This book takes this argument further: the legitimacy of the law itself must be called into question if it consistently produces outcomes that are seen as unjust or oppressive. In equal parts historical assessment and aspirational quest, this entire book tugs at the foundations of the Constitution and the criminal procedure segments of the Bill of Rights, and envisions an American criminal justice system where awful behavior by government officials—awful in the sense that they violate the spirit and words of the Constitution and the entire Social Contract—is no longer accepted as lawful and where courageous courts prioritize enforcing individual constitutional rights versus optimizing police and prosecutor expedience, eliminating constitutional hurdles, and sidestepping constitutional protections than rightfully belong to “We the People.” The American government was born during the Age of Enlightenment (especially influential in seventeenth- and eighteenth-century Europe) when philosophers posited that governments could only peacefully and rightfully govern if they had the consent of the governed—known as the Social Contract. The United States Constitution is the verbal embodiment of that Social Contract with governmental powers created, detailed, and limited implicitly in the articles and explicitly in the Bill of Rights (Banchetti, 2012). The U.S. criminal justice system is grounded on a Social Contract embedded within the United States Constitution and all state constitutions, which provides that Americans largely gave up a range of extrajudicial self-­ help remedies (seek revenge, form a posse, convene a lynch mob, etc. (Weber, 2014, p. 3)) and in their place created a system with criminal codes and law enforcement officers with extraordinary powers to investigate, arrest, search, and use reasonable force so those working within the criminal justice system can enforce the criminal law and seek criminal justice on behalf of us ALL. The Social Contract “transfers a minimum amount of natural freedom to the state that becomes the ultimate guarantor of political freedom” (Zucca, 2022, p. 10). That Social Contract (Baker, 2012) requires that American law enforcement hold those immense powers in trust for the public—for ALL of the public—and conduct its work exhibiting fair access to all, setting aside biases, delivering equal justice, and demonstrating unwavering objectivity on the job. Those constitutional criminal procedural rules are memorialized in the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the Constitution. In a word, if American law enforcement officers and agencies fail to act with

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procedural justice, fair access, and objectivity, and fail to adhere to constitutional requirements and amendment-driven limits on their powers, they have breached the Social Contract and lost any right to act on our behalf. As this chapter explores, constitutional rights are not (or ought not to be) rights watered down and leavened by court decisions that favor majority preferences over minority rights. It has become too easy for courts, including and perhaps especially the current United States Supreme Court, to protect the majority’s repose at the expense of the Social Contract that was designed as the guardrail to protect individuals from a too-powerful government. This chapter explores the genesis of that Social Contract: Constitution-derived and amendment-granted limits on government conduct and how those limits sometimes do and always should guide the decisions made by criminal justice professionals on the job. The Constitution and its amendments are not hurdles to be bypassed or technicalities in search of an exception; instead, they are the very fabric of the Social Contract—the agreement between the People and the Government. The focus here is not on what the law has been interpreted by courts to allow or what policy manuals may permit. That contradicts the common moral fallacy of legal moralism (i.e., the fallacy that anything legal is perforce also moral). Simply put, deeming awful government conduct (lying, cheating, perjury, excessive force, and the like) to be lawful does a patent disservice to the Constitution that courts purport to objectively interpret. Too many U.S. courts have focused on how to craft and justify exceptions and exclusions to the clear protections in the Constitution so that police, prosecutors, and courts can act unimpeded by what the Constitution requires. The focus of this book—and the focus police, prosecutors, and courts should be enforcing and interpreting—is on what the Social Contract requires. In the post-George Floyd era, we can and must demand more of our law enforcement officers, prosecutors, and courts that judge their adherence to the Constitution. And twenty-first-century police, prosecutors, and courts must jettison common police tropes that pass for wisdom and justice, such as (1) I’d rather be judged by twelve than carried by six; (2) once you have shot a civilian, just say you feared for your life, and you won’t even be indicted; (3) a knife, even at 20 feet, is a dangerous weapon, so if the man with a knife takes one step forward, shoot center mass and keep shooting until the threat is eliminated; (4) we have to bend the law to catch those who break the law; (5) I cannot rat out a fellow officer—the officer may retaliate against me or not have my back next time. These and dozens of other features of the lore of policing, often undergirded by court opinions allowing and even celebrating them, must be put to rest so criminal justice in the United States can once more be grounded in the Constitution and the Social Contract. It should no longer be acceptable to blithely note nor acceptable for courts to sanction the current status of officer deceit: Police officers often tell lies; they act in ways that are deceptive, they manipulate people and situations, they coerce citizens, and are dishonest. They are taught, encouraged, and often rewarded for their deceptive practices. Officers often lie to suspects about witnesses

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The Social Contract Genevan philosopher, writer, and composer Jean-Jacque Rousseau (1762) conceived of the “social compact” wherein all society members are equal and the society legitimately wields only the types and degrees of power the People have consented to; upon the express requirement that government will wield the authorized power in ways honoring the right of the People who ceded the power to the government at its initiation. Rousseau (1762) said it far more eloquently: Each of us puts his person and all his power in common under the supreme direction of the general will, and, in our corporate capacity, we receive each member as an indivisible part of the whole.

Rousseau, “arguably the premier theorist of the social contract” (Brettschneider, 2011, p. 51), was a product (and catalyst) of the Enlightenment, a time glistening with governmental and natural law concepts with crucial “social contract” contributions also from English philosophers John Locke and Thomas Hobbes (Cherry, 1974; Morris, 1999). The so-called “father of liberalism” Locke (1773) expounded on the Social Contract: But though men, when they enter into society, give up the equality, liberty and executive power they had in the state of nature, into the hands of the society, to be so far disposed of by the legislative, as the good of the society shall require; yet it being only with an intention in every one the better to preserve himself, his liberty and property (for no rational creature can be supposed to change his condition with an intention to be worse).

And before the others, Hobbes (1651) declared that humans were a naturally warring group bound to live a life “solitary, poor, nasty, brutish, and short” (pp. xiii–xiv) unless and until there was a government voluntarily formed and designed by the People through a social contract along with a mechanism to uphold and enforce that contract. Bringing the social contract vision into focus, these philosophers envisioned a path out of dissent and disorder toward equality and order when the People voluntarily consent to be governed centrally in exchange for specified personal liberty guarantees. The People, Enlightenment theorists maintained, relinquished self-help for perceived harms and create a government and public safety infrastructure to stand in the shoes of and protect all the people equally. Of course, one must view social contract theorists through the lens of its era— slavery, patriarchy, inequality, majority rule and minority oppression, and the like. Nonetheless, the social contract theory, prevalent during the Enlightenment, fueled our government structure and set of inviolable freedoms that would soon thereafter form the core of the United States of America.

The United States—A Product of Its Time

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The United States—A Product of Its Time Thomas Jefferson, through the Declaration of Independence, and later, the Framers, through the Constitution of the United States of America, crafted the bridge between these social contract philosophers and the framing and structure of the new government of the United States even though at the time of the Framing there were “few cogent examples of functioning democracies” (Gilmore, 2009, p. 12; see Obama, 2008). As the Declaration of Independence (1776) preamble declared, We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. (emphasis added)

Then the Framers of the United States Constitution struck similar and concordant tones: “The fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority” (Hamilton, 1787, emphasis in original). And by adding the Bill of Rights (ultimately the first ten amendments to the Constitution), the Framers ensured the Constitution (with the appended Bill of Rights) would secure ratification—by the People. As the preamble to the Bill of Rights concluded, The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses [the Bill of Rights] should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

Thus, ratification of the Constitution creating and structuring the federal government could not have occurred but for the addition of the Bill of Rights (Donahue, 2016; Duoma, 2017)—effectively, the social contract between the United States and its People, from whom all federal governmental power flowed but to whom was owed the quid pro quo for that centralized power—strict rights and protections guarding the People against excesses of the federal government they had created but still feared. “Social-contract theory was ubiquitous in American constitutional thought, although sometimes hidden in plain sight. Consider the very first sentence of the Constitution[:] ‘We the People,’ and not ‘We the States,’ which therefore is a compact between individuals entering into society, and not between separate states enjoying independent power and delegating a portion of that power for their common benefit … . The original source of sovereignty, after all, was the consent of the people to the social contract” (Campbell, 2020, p.  1437). “The existence of this social contract is evidenced in numerous sources including: political theories that explore the use of political authority; [and] foundational democratic legal sources, such as the Declaration of Independence and the United States Constitution” (Cimini, 2002, p. 252). “We accept duties to do or refrain from doing acts that violate the norms flowing from the contract. Those obligations are addressed to each of

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us, as members of the polity created by the social contract. Thus the social contract provides the content of our agent-relative obligations to our fellow citizens (and to the state when it operates as their agent)” (Dimick, 2014, p. 166). The social contract, to the Founders, implied limited and specified governmental powers (Vieira, 1979, p. 1456). As the time of the founding of our Nation grows distant to us, we must recommit to honoring the promises and guarantees that formed the framework of our Nation and its criminal justice system: the Social Contract and the Bill of Rights to the United States Constitution. Even more deeply, the Constitution did not create the rights it championed. Instead, the Framers deemed those rights to be natural rights, possessed by all as a result of being human (State v. Hubbard, Ohio, 2021; Fish, 2021). “American colonial publicists moved to the idea of social contract out of individual rights. The Americans came to see rights not as concessions wrung from monarchs by nobles and by parliaments representing expanding land-owning and merchant classes, but as inherent rights held by individuals prior to government and law, and not given away but retained under government” (Henkin, 1989). “The common understanding of the Framers, ratifiers, and the public at the time of the adoption of the Constitution and the Bill of Rights was that these documents embodied a social contract theory of government. Under such a theory, the purpose of the government was not to create rights, but rather to enforce pre-existing right … at the time of the framing, the social contract view was used to advance claims of religious liberty and was ubiquitous in social discourse and constitution making” (Sergienko, 1996, p.  1268). “The United States Constitution … was—became—an authentic expression of the principles of American Constitutionalism articulated in the Declaration of Independence and the state constitutions of the time-a social contract” (Henkin, 1987, p. 263). Thus, the government was obligated to protect the People’s natural rights. “[T]he founding generation believed in higher law and saw the principle limiting government power as inherent in the social contract, which the written constitution only partially embodies” (Frost et  al., 2004, p.  333; citing McAffee, 2000, p.  3). “[S]everal important characteristics of the Constitution— indeed its most important characteristics—are clear and admirable applications of the Natural Law” (Barker, 2012, p. 106). That natural rights perspective is implicit in virtually all Amendments within the Bill of Rights and explicit on the face of many (Green, 2002), including: First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances” (U.S. Const. amend. I). Note the words in bold—the First Amendment was referring to natural rights that already existed and was not endeavoring to create new rights. Second Amendment: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed” (U.S. Const. amend. II). That natural right already existed; the Amendment merely required the Government to refrain from abridging that right.

The United States—A Product of Its Time

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Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized” (U.S. Const. amend. IV). The right already existed; the Fourth Amendment precluded the Government from violating that pre-existing natural law.

Some commentators reach back further than the natural law and argue the Constitution and natural law are both based ultimately in ethics (Hill, 2021) or as expressions of human rights (Lempert, 2017). “[T]he State has an interest in protecting its citizens from such ultimate attacks; this surely is at the core of the Lockean ‘social contract’ idea” (Roberts v. Louisiana, U.S., 1977, p. 646 (Rehnquist, J., dissenting)). There is more need now than ever to give rebirth to those cherished constitutional guides. For example, it is worth remembering that the U.S. Constitution and its Bill of Rights—written documents protecting individual rights—were shaped in part by Italian philosopher and economist Cesare Beccaria’s treatise, Dei delitti e delle pene, translated into English as On Crimes and Punishments (Beccaria, 1767). The first four U.S.  Presidents—George Washington, John Adams, Thomas Jefferson, and James Madison—were inspired by Beccaria’s work and, in some cases, read it in the original Italian (Bessler, 2017). “Despite the neglect of many U.S. historians, the Italian Enlightenment—or Illuminismo, as the Italians call it—played a crucial role in the development of American law, with Beccaria’s treatise, On Crimes and Punishments, leading the way. In fact, the Continental Congress—as an entire body, then meeting in Philadelphia—cited the work of Beccaria and Montesquieu side by side before the United States of America was formed through the Declaration of Independence” (Bessler, 2017, pp.  16–17). And Beccaria’s advocacy for proportionality in punishment famously influenced the development of the Eighth Amendment, which prohibits cruel and unusual punishment, while his idea that individuals accused of crimes should be presumed innocent until proven guilty is enshrined in the Fifth and Sixth Amendments, guaranteeing the right to due process and a fair trial. Beccaria’s ideas on the importance of a codified system of laws, the importance of precedent, and the use of juries also helped shape the American legal system (duBois-Pedain, 2022; Harcourt, 2014). The passage of time and neglect or abject antagonism from recent United States Supreme Court majorities have eroded some of these guarantees, protections, and promises, but they can be reclaimed. In the criminal justice system, we see that starkly in law enforcement’s routine reliance and judicial ratification of excessive force by police, police deception in obtaining consent to search, police deceit in extracting admissions and confessions, and in an ever-growing list of exceptions to the constitutional criminal procedure rights that were the foundation of the Constitution. These and other matters are considered in subsequent chapters. One need only look back with disdain at what passed for criminal “justice” in the United States say 50 years ago to know that 50 years from now those who follow us will look back at our time with similar disdain. The U.S. criminal justice system is deeply flawed, but could be reborn with a thoroughgoing return to honoring without

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limit the constitutional criminal procedure principles the Bill of Rights was drafted and ratified to ensure but which we have allowed to atrophy in a quest toward pandering to majority preferences, expedience, cost-savings, balancing charades, and exceptions, exclusions, and dodges galore. Imagine today’s criminal justice through the Bill of Rights. The Fourth Amendment protects against unreasonable searches and seizures and requires warrants be supported by probable cause signed by a neutral magistrate enumerating the place to be searched and the items to be searched for and seized. The 54 words of the Fourth Amendment speak with a sound voice limiting the out-of-control central government the colonists had left Britain to escape: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (U.S. Const. amend. IV.)

Yet, U.S. criminal justice professionals have been enabled by the courts, including and perhaps especially the Supreme Court, to engage in all manner of “awful but lawful” behavior that falls far short of what the Fourth Amendment—central to the Social Contract fabric of the Nation—requires by its terms. A few examples suffice to make the point: 1. Although virtually no one other than the police do so, flying a helicopter just 400 feet over a person’s backyard to see a marijuana grow operation in an outbuilding not visible from the street is a perfectly reasonable search although police had no warrant and no probable cause (the key requirements under the Fourth Amendment) (Florida v. Riley, U.S., 1989). 2. Although a suspect in custody had told officers he wished to remain silent and speak only through counsel, law enforcement placed an undercover officer in the suspect’s cell, masqueraded as a fellow inmate, and extracted admissions from the suspect, all was deemed constitutional by the Supreme Court (Illinois v. Perkins, U.S., 1990). 3. Officers arrested a man inside his home on a warrant that had been withdrawn months before but was still in police records; thus, there was no warrant, the officers had no right to arrest the man or search him upon arrest, and the Fourth Amendment was ignored in all its particulars. The Supreme Court found that fit within the “good faith exception” where officers acting in good faith violate a person’s constitutional right that is no violation at all since the Court created the legal fiction that suppression of unconstitutionally obtained evidence is appropriate only to deter reckless or intentional police conduct. But the Fourth Amendment exists to suppress unconstitutionally obtained evidence and does not exist to protect police expedience or negligence (Herring v. United States, U.S., 2009). 4. Officers, at the time uninterested in enforcing traffic laws, are free to stop vehicles intending to search them for drugs, so long as they wait for a vehicle exhibiting traffic or equipment violations and then try to develop probable cause of drugs during the stop (such as by smelling burnt marijuana or seeing drugs or

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drug paraphernalia inside the stopped vehicle); the true motive of the officer is deemed irrelevant to the vehicle stop even though the officer merely used the traffic or equipment violation as a pretext for the stop (Whren v. United States, U.S., 1996). 5. Officers with a warrant to search a person’s third-floor apartment entered the wrong third-floor apartment and seized drugs; the officers were deemed to have acted in purported “good faith” on the warrant to enter and search the other apartment—the apartment they searched was not enumerated on the warrant but that was deemed constitutional (Maryland v. Garrison, U.S., 1987). 6. And suppression of unconstitutionally obtained evidence is nonetheless admissible if the evidence would have inevitably been discovered (Nix v. Williams, U.S., 1984); the officers acted in objective good faith (United States v. Leon, U.S., 1984); the officers made a mistake of law (Heien v. North Carolina, U.S., 2014); the unconstitutionality related only to the manner of executing the warrant (Hudson v. Michigan, U.S., 2006); the unconstitutionally obtained evidence is used to impeach the person whose constitutional rights were violated (Agnello v. United States, U.S., 1925); the evidence is offered in other than a criminal trial (deportation, tax evasion, grand jury, probation revocation proceeding); and many other situations as the exceptions and exclusions are consuming Fourth Amendment protections. Numerous other case examples are addressed below and in subsequent chapters of this book. But one can begin to see from this short list that the Social Contract principles on which our government was founded in exchange for clear protections for the People have become littered with exceptions and exclusions. Worse, they are nearly expendable when the societal costs of evidence suppression are greater than the societal benefits of enforcing the Constitution, when the officers at least did not intentionally and in bad faith violate the Constitution (United States v. Leon, U.S., 1984), when it was a horrible murder and the searchers in the snow who were over a mile away at the time would have inevitably found the little girl’s body (Nix v. Williams, U.S., 1984), and basically whenever the current majority on the U.S. Supreme Court chooses to elevate law enforcement and majority interests over suspects’ and defendants’ constitutional rights.

A Call for a Return to the Warren Court Era Constitutional rights need not be so cavalierly discarded, diminished, and ignored, and in the era of the Supreme Court led by Chief Justice Earl Warren (1953–1969), they were not as is evidenced below. The majorities during the Warren Court era took Social Contract-compelled and amendment-derived constitutional criminal procedure protections much more seriously than all subsequent Supreme Court eras as is clear from the selected key Warren Court decisions below, each of which was diminished by every subsequent Supreme Court era (Burger Court [1969–1986];

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Rehnquist Court [1986–2005]; and Roberts Court [2005–present]). As you read these short synopses of key Warren Court decisions and the subsequent Courts’ decisions that emaciated them, ask yourself which better reflects (1) the Constitution and its Bill of Rights, (2) the Social Contract, and (3) the sort of procedural and substantive due process you believe U.S. courts should honor and protect. And as you consider these cases, bear in mind Justice Stevens’s comment in his dissent in Moran v. Burbine (U.S. 1986): In Escobedo v. Illinois [(1964—a Warren Court decision)], we excluded a confession by a defendant who had not been permitted to consult with his lawyer, and whose lawyer had not been permitted to see him. We emphasized the “lesson of history” that our system of justice is not founded on a fear that a suspect will exercise his rights. “If the exercise of constitutional rights will thwart the effectiveness of a system of law enforcement, then there is something very wrong with that system.” (Stevens, J., dissenting, quoting Escobedo v. Illinois, U.S., 1964, p. 490)

And bear also in mind Justice Marshall’s concurring opinion in Brewer v. Williams (U.S. 1977): In my view, good police work is something far different from catching the criminal at any price. It is equally important that the police, as guardians of the law, fulfill their responsibility to obey its commands scrupulously. For “in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves.” (Marshall, J., concurring, quoting Spano v. New York, U.S., 1959, pp. 320–321)

Consider then each of the following twenty-five key Warren Court decisions regarding constitutional criminal procedure and note how each has been ignored, bypassed, sidestepped, and diminished by the opinions (indented below) by Supreme Court majorities subsequent to the Warren Court (just the barest subset of such contrary cases is presented here—dozens more could as easily have been cited as additional cases eroding Warren Court constitutional protections): • [Warren Court] Spano v. New York (U.S., 1959, pp. 320–321) (holding Fourteenth Amendment due process was violated and statement must be suppressed when officers ignored defendant’s repeated requests to speak with defense counsel while interrogating him for eight hours after which he finally confessed at 3:00 a.m. As the Supreme Court noted, “The abhorrence of society to the use of involuntary confessions does not turn alone on their inherent untrustworthiness. It also turns on the deep-rooted feeling that the police must obey the law while enforcing the law.”). –– [Burger Court] Kirby v. Illinois (U.S. 1972) (Supreme Court held that a police station showup that occurred after arrest but before charging or indictment and which helped convict robbery suspect at trial was an event at which the arrestee had no right to counsel). –– [Rehnquist Court] Nix v. Williams (U.S. 1984) (when evidence is unconstitutionally obtained but would have “inevitably” been discovered through means independent of the unconstitutionality, that unconstitutionally obtained evidence is admissible).

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–– [Roberts Court] Kansas v. Ventris (U.S. 2009) (admissions the murder defendant made to a cellmate working with investigators were concededly obtained in violation of the Sixth Amendment right to counsel; nonetheless, the Supreme Court held the admissions were admissible against the defendant as impeachment of his denials on the stand). • [Warren Court] Mapp v. Ohio (U.S. 1961) (extending the Exclusionary Rule to state criminal cases and thereby suppressing evidence that was unconstitutionally obtained). –– [Burger Court] United States v. Leon (U.S. 1984) (officers relying on a court-­ issued search warrant may execute the warrant and prosecutors may admit the seized evidence in court as long as the officers were unaware the warrant was ineffective and invalid, and acted in good faith reliance on that warrant). –– [Rehnquist Court] Illinois v. Krull (U.S. 1987) (when officers warrantlessly seize evidence later found to have required a warrant, exclusion was not the proper remedy). –– [Roberts Court] Herring v. United States (U.S. 2009) (held that the police conduct to be deterred by the exclusionary rule must be deliberate, reckless, or grossly negligent—merely negligent police conduct in maintaining an inaccurate active warrant list does not require exclusion of evidence gathered when executing the non-existent warrant). • [Warren Court] Wong Sun v. United States (U.S. 1963) (adopting the “fruit of the poisonous tree” doctrine that statements made after an unconstitutional arrest must be suppressed as fruit of the unconstitutional arrest). –– [Burger Court] United States v. Calandra (U.S. 1974) (unconstitutionally obtained evidence may be freely used in a grand jury proceeding and answers to grand juror questions based on that unconstitutionally obtained evidence will not be deemed fruit of the poisonous tree). –– [Rehnquist Court] United States v. Patane (U.S. 2004) (held that when physical evidence is derived from a statement obtained without required Miranda warnings, that physical evidence need not be suppressed as fruit of the Miranda illegality). –– [Roberts Court] Utah v. Strieff (U.S. 2016) (when officers conducting an unconstitutional vehicle stop discover through contacting dispatch that there is an active warrant for the driver, the warrant attenuated the unconstitutionality of the stop and exclusion was improper). • [Warren Court] Gideon v. Wainwright (U.S. 1963) (guaranteeing public-funded right to counsel to indigent criminal defendants). –– [Burger Court] Strickland v. Washington (U.S. 1984) (right to counsel does not require a very effective counsel—in a death penalty case, counsel was not so ineffective that the right to counsel was violated even though the counsel offered no mitigation evidence in the sentencing phase of the trial).

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–– [Rehnquist Court] Texas v. Cobb (U.S. 2001) (the right to counsel is offense-­ specific not incident-specific and thus does not extend to other offenses that may have arisen from the same criminal behavior). –– [Roberts Court] Marshall v. Rodgers (U.S. 2013) (where defendant had represented himself at trial and been convicted, court refused defendant’s three requests for court-appointed counsel to help him draft a motion for new trial; Supreme Court held (per curiam) that did not violate a clearly established federal requirement. • [Warren Court] Douglas v. California (U.S. 1963) (guaranteeing public-funded counsel to indigent first-appeal criminal appellants). –– [Burger Court] Ross v. Moffitt (U.S. 1974) (declined to extend guaranteed defense counsel for criminal appellants seeking discretionary appeals to state appellate courts or the U.S. Supreme Court). –– [Rehnquist Court] Pennsylvania v. Finley (U.S. 1987) (declined to extend right to appointed counsel for indigent persons seeking collateral review). –– [Roberts Court] Davila v. Davis (U.S. 2017) (declined to allow a state capital murder defendant to seek federal habeas corpus relief when state post-­ conviction counsel was ineffective in failing to raise the issue of ineffective assistance of appellate counsel below. • [Warren Court] Brady v. Maryland (U.S. 1963) (requiring prosecutors to disclose exculpatory evidence to the defense). –– [Burger Court] Smith v. Phillips (U.S. 1982) (where prosecutor did not disclose to defense the fact that during the murder trial, one of the jurors had applied to the prosecuting office for a job as a “major felony investigator,” that was not a Brady violation). –– [Rehnquist Court] United States v. Ruiz (U.S. 2002) (held that where defendant pleaded guilty to fast-track plea agreement that included waiving her right to have prosecutors disclose impeachment evidence and evidence related to any affirmative defense did not offend constitutional due process). –– [Roberts Court] District Attorney’s Office for the Third Judicial District v. Osborne (U.S. 2009) (refused to grant person convicted of sexual assault a right under Brady to obtain evidence from the state for DNA re-testing); see also Connick v. Thompson (U.S. 2011) (repeated Brady violations in same prosecution office that failed to disclose blood-test evidence to defense and resulted in defendant serving 18 years in prison on a wrongful conviction was insufficient to hold prosecution office civilly liable for failure to train prosecutors). • [Warren Court] Massiah v. United States (U.S. 1964) (forbade officers from interrogating defendants without counsel present after Sixth Amendment right to counsel had attached). –– [Burger Court] Moran v. Burbine (U.S. 1986) (police misled arrestee in murder investigation by failing to inform him his defense counsel had called

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before arraignment and wanted to speak with him, and misled defense counsel that officers would not interrogate arrestee, then arrestee waived his Miranda rights, officers interrogated him, and arrestee confessed without counsel present; Supreme Court held that did not violate the Sixth Amendment right to counsel). –– [Rehnquist Court] Texas v. Cobb (U.S. 2001) (the right to counsel is offense-­ specific not incident-specific and thus does not extend to other offenses that may have arisen from the same criminal behavior). –– [Roberts Court] Montejo v. Louisiana (U.S. 2009) (overturned Michigan v. Jackson, 475  U.S. 625 (1986), which had required officers to refrain from initiating contact with a defendant who had invoked his right to counsel at a court proceeding, and thereby allows officers to initiate contact with represented defendants); Maryland v. Shatzer (U.S. 2010) (overturned rule from Edwards v. Arizona (U.S. 1981) that held once a custodial suspect had invoked his Miranda-based right to counsel, officers could not initiate contact with the suspect, holding instead in Shatzer that a 14-day break in custody allowed officers to re-initiate contact with the suspect). • [Warren Court] Malloy v. Hogan (U.S. 1964) (extending to state actors Fifth Amendment protections against compelled self-incrimination). –– [Burger Court] Jenkins v. Anderson (U.S. 1980) (prosecutors may use a defendant’s pre-arrest silence against him at trial to imply guilt). –– [Rehnquist Court] Arizona v. Fulminante (U.S. 1991) (admission of a coerced confession at trial is a trial error subject to the harmless error rule such that a coerced confession may be admitted as long as an appellate court deems it did not adversely affect the verdict such as when other evidence is overwhelming); see also United States v. Patane (U.S. 2004) (when a statement is obtained from a custodial suspect in violation of Miranda, that does not require suppression of the physical evidence obtained using information gained in that unwarned statement). –– [Roberts Court] Vega v. Tekoh (U.S. 2022) (where officers violated Miranda by taking a custodial statement from a sexual assault suspect later acquitted at trial though statement was admitted against him, Supreme Court held acquitted man could not sue for money damages the Sheriff’s Deputy who violated Miranda). • [Warren Court] Escobedo v. Illinois (U.S. 1964) (granting criminal suspects the right to counsel during interrogations). –– [Burger Court] Moran v. Burbine (U.S. 1986) (police misled arrestee in murder investigation by failing to inform him his defense counsel had called before arraignment and wanted to speak with him, and misled defense counsel that officers would not interrogate arrestee, then arrestee waived his Miranda rights, officers interrogated him, and arrestee confessed without counsel present; Supreme Court held that did not violate the Sixth Amendment right to counsel).

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–– [Rehnquist Court] Patterson v. Illinois (U.S. 1988) (police could freely approach a represented defendant post-indictment, Mirandize him, and question him if he waived without notifying defense counsel). –– [Roberts Court] Montejo v. Louisiana (U.S. 2009) (represented defendant may waive the right to counsel and consent to interrogation, the waiver need not be counseled, and the contact may be initiated by police). • [Warren Court] Griffin v. California (U.S. 1965) (holding prosecutors may not use a criminal defendant’s decision not to testify against the defendant). –– [Burger Court] Lockett v. Ohio (U.S. 1978) (the Burger Court held that a prosecutor referring to the State’s evidence in closing argument as “unrefuted” and “uncontradicted” did not violate defendant’s right not to testify). –– [Rehnquist Court] United States v. Robinson (U.S. 1988) (prosecutor in closing argument telling the jury that defendant could have testified to explain his side of the story did not violate defendant’s right not to testify). –– [Roberts Court] Salinas v. Texas (U.S. 2013) (prosecutor was free to argue before the jury that defendant had stayed silent in noncustodial interrogation). • [Warren Court] Miranda v. Arizona (U.S. 1966) (creating a prophylactic requirement that Miranda warnings of rights to remain silent and be represented by counsel be read to and understood by persons in custody before interrogation with continued questioning only permissible if suspect understood the Miranda rights as read and affirmatively waived those rights to silence and counsel). –– [Burger Court] Kuhlmann v. Wilson (U.S. 1986) (officers were free to place a jailhouse informant in close proximity to a murder suspect to talk about the murders without asking Wilson questions and listen for admissions on the officers’ behalf without requiring Miranda warnings; as Justice Brennan noted in dissent, “the accused was incarcerated and therefore was susceptible to the ploys of undercover government agents … State intentionally created a situation in which it was foreseeable that respondent would make incriminating statements without the assistance of counsel”). –– [Rehnquist Court] Illinois v. Perkins (U.S. 1990) (while defendant was in custody on unrelated charges, officers were authorized to place an undercover officer posing as a cellmate to question Perkins about a murder without Miranda warnings; Perkins’s admissions were admissible against him at trial; as Justice Marshall wrote in dissent, “the pressures unique to custody allow the police to use deceptive interrogation tactics to compel a suspect to make an incriminating statement”). –– [Roberts Court] Berghuis v. Thompkins (U.S. 2010) (for the first two hours and 45 minutes of the three-hour police interrogation, the suspect sat absolutely silent while officers asked questions of him; Supreme Court held 165 minutes of defendant’s absolute silence was not enough to be considered invocation of his right to remain silent).

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• [Warren Court] Katz v. United States (U.S. 1967) (enhancing Fourth Amendment protections by protecting “persons, not places” and interposing in Justice Harlan’s concurrence, the reasonable expectation of privacy test). –– [Burger Court] Rakas v. Illinois (U.S. 1978) (passengers in a car had no reasonable expectation of privacy and thus no standing to contest search of glove compartment and under seat areas in the car where they were seated). –– [Rehnquist Court] California v. Hodari D. (U.S. 1991) (when officers in unmarked patrol vehicle approached a group of youths, the group fled on foot; as the officers pursued the youths, one of the youths threw a package later determined to contain illegal drugs; the Rehnquist Court held the drugs were merely abandoned property in which the youth had no reasonable expectation of privacy since he had not been “seized” at the time he threw the drugs; without the abandonment, the officers had no probable cause to search the youth and would not have seized the substance). –– [Roberts Court] Maryland v. King (U.S. 2013) (Roberts Court held that Maryland was free to collect biological specimens from arrestees—before conviction—as part of its standard post-arrest procedures; Justice Scalia’s dissent noted that unlike photographs and fingerprints in standard post-arrest procedures that were used to identify the arrestee, Maryland’s DNA collection was intended to solve unsolved crimes unrelated to the crime of arrest). • [Warren Court] Duncan v. Louisiana (U.S. 1968) (extended the right to jury trial to state criminal cases). –– [Burger Court] Williams v. Florida (U.S. 1970) (a state may prosecute felonies with juries of less than twelve persons). –– [Rehnquist Court] Blanton v. North Las Vegas (U.S. 1989) (defendants are not entitled to jury trial for petty state offenses). –– [Roberts Court] Edwards v. Vannoy (U.S. 2021) (Edwards had been found guilty of armed robbery in state court—the state rules allowed non-­unanimous verdicts so long as 10 or 12 jurors voted to convict; the Edwards guilty verdicts were not unanimous (11 of 12 jurors voted to convict on some crimes and 10 of 12 jurors voted to convict on others)—Roberts Court held that right to unanimous jury verdict that the Court had just handed down in Ramos v. Louisiana (U.S. 2020) does not apply retroactively in collateral federal review proceedings thereby letting Edwards’s non-unanimous verdicts stand). • [Warren Court] Benton v. Maryland (U.S. 1969) (extended the Fifth Amendment double jeopardy clause as against the states). –– [Burger Court] Heath v. Alabama (U.S. 1985) (a state may prosecute a person for a criminal act for which that person had already been sentenced and convicted in another state). –– [Rehnquist Court] Sattazahn v. Pennsylvania (U.S. 2003) (double jeopardy is not violated when a state seeks the death penalty after the defendant was acquitted of first-degree murder).

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–– [Roberts Court] Denezpi v. United States (U.S. 2022) (a federal case, not a state case) (Denezpi, a member of the Navajo Nation, was prosecuted and pleaded guilty in a federal C.F.R. court for assault and battery for a sexual assault incident that had occurred on the Ute Reservation; 6 months later, a federal grand jury indicted Denezpi for the same act to be tried in federal court; Roberts Court held double jeopardy does not bar successive prosecutions for a single act even if the same sovereign prosecutes both as here). As is obvious above, the majorities during the Warren Court era honored the Social Contract more consistently and faithfully than any of the subsequent Supreme Court eras to date. Indeed, those Supreme Court majorities subsequent to the Warren Court era created most of the exceptions and exclusions that have diminished the Warren Court era rights highlighted above. One may rightfully ask, “After the Burger, Rehnquist, and Roberts Courts, have the exceptions, exclusions, and exemptions they created swallowed the constitutional protections the Constitution and the Social Contract created and the Warren Court defended”? It is more than merely regrettable but the subsequent erosion of constitutional rights could be stopped or reversed with a return to truly honoring the Social Contract and the protections in the Bill of Rights. In a sense, the path “toward ending the awful but lawful era” may be as simple as returning to the Supreme Court a majority of justices committed to procedural and substantive justice and the Social Contract by giving enduring life to the protections demanded by the People in exchange for creating and empowering a strong central government. We must demand no less.

Discussion Questions 1. What is meant by the idea, “awful but lawful”? 2. How do the Fourth, Fifth, and Sixth Amendments work together to protect the rights of criminal defendants, and how have these protections been applied in landmark cases throughout American history? 3. What is the role of the Supreme Court in interpreting the Constitution and Bill of Rights with regard to criminal justice, and how have its decisions impacted the legal landscape of the United States? 4. Who were the key figures of the Warren Court, and what were their contributions to American jurisprudence? 5. What was the significance of the Warren Court’s decisions in cases like Gideon v. Wainwright and Escobedo v. Illinois for the rights of criminal defendants in the United States?

Part II

Police, Misconduct, and Supreme Court Complicity

Chapter 3

Moral Injury, Compound Officer Trauma, and Officer Mental Health

Summary • Moral injury is a type of trauma that occurs when an officer is put in a situation where they are forced to act against their moral beliefs. It can build up over time as officers face repeated ethical dilemmas. • Police agencies tend to be patriarchal, para-military, top-down, paperwork-­ intense, and policy and procedures manual-driven organizations. The job is action and results-oriented, short-staffed and under-funded, with unpredictable and at times oppressive workloads, and stretches of boredom punctuated by intense trauma and stress. • Compound officer trauma refers to the cumulative effects of multiple traumatic incidents on an officer’s mental health. It can be especially dangerous when combined with moral injury, as officers may feel that they are powerless to prevent harm to themselves or others. • The culture of policing can contribute to officer mental health issues by promoting a “tough” or “resilient” image that discourages officers from seeking help. • Mental health issues among police officers, including depression, anxiety, and PTSD, can have serious consequences for their ability to ethically and effectively police, making it crucial to prioritize officer well-being.

Moral injury is suffered when a person violates their moral or ethical beliefs and must soldier on. And ethical trauma is felt when a person has dueling obligations to successfully “fight crime” while acting ethically, but also knows they are free to engage in all manner of court-authorized deception and misconduct. Compound trauma occurs when a person has not yet resolved some earlier trauma when they are confronted by the next trauma. That is the life of a police officer today: do the © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 C. E. MacLean, J. A. Densley, Police, Prosecutors, Courts, and the Constitution, https://doi.org/10.1007/978-3-031-39082-1_3

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right thing, protect businesses, and enforce the law, but remember you are free to lie and deceive with impunity. This chapter examines the consequences of this paradox. In police academies across the country, officers, sworn to protect and serve and support and defend the Constitution, are routinely trained on how to deceive, how to dodge constitutional protections, how to use excessive force, and what to say as cover when they do so, and how to bypass those constitutional protections some now see as impediments and technicalities that just make their job harder (Alpert & Noble, 2008; Skolnick, 1985). Of course, the Constitution and the Bill of Rights make officers’ jobs harder—that’s why they were ratified in the first place! Recognize also that many police agencies have policy manuals crammed with procedures officers must follow in this situation or that and many agencies purport to require their officers to act ethically on every call on every shift. Imagine the confusion those officers absorb. They have been taught what the Constitution and the Bill of Rights require and that the Constitution is the Supreme Law of the Land and thus the law they should enforce above all others. But they have also been taught that the courts will accept police lying, deception, excessive force, misconduct, discriminatory intent, and many other police violations of the Constitution (Paris, 1995; Young, 1996). The result can be abject role confusion or an absolute belief that officer discretion is a limitless green light that authorizes any action the officer deems preferable or deems to serve the “greater good.” This chapter addresses moral injury and ethical trauma, compound (complex) trauma, and their impacts on officers’ mental health and behaviors.

Moral Injury and Ethical Trauma Police too often are called upon to straddle the moral and ethical divide between serving communities relying on them to deliver procedural justice and the “often competitive enterprise of ferreting out crime” (Johnson v. United States (U.S., 1948, p. 14)). “Moral distress and moral injury result from the discrepancy of one’s moral norms and values, on the one hand, and the organisational policy that a police and law enforcement agent has to implement, or the actual professional conduct she is performing, on the other hand” (Schröder-Bäck et  al., 2022; see also, Griffin et al., 2019). Police officer mental health commentators frequently cite the definition of moral injury coined by Litz et al. (2009, p. 695) in the similar trauma tableau of military officers in combat in Iraq and Afghanistan: “Potentially morally injurious events, such as perpetrating, failing to prevent, or bearing witness to acts that transgress deeply held moral beliefs and expectations may be deleterious in the long-term, emotionally, psychologically, behaviorally, spiritually, and socially (what we label as moral injury).” As Litz et al. (2009, p. 696) noted in the military war veteran context, “Service members are confronted with numerous moral and ethical challenges in war. They may act in ways that transgress deeply held moral beliefs or they may experience

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conflict about the unethical behaviors of others. Warriors may also bear witness to intense human suffering and cruelty that shakes their core beliefs about humanity.” That eerily mirrors the experience of many officers over a stressful career where “Moral injury occurs when officers do something (or fail to do something) that violates their core values. … Moral injury also occurs when officers feel betrayed by the unethical actions of trusted colleagues or supervisors” (Blumberg et al., 2020; see also Griffin et al., 2019; Kopacz et al., 2016; Lentz et al., 2021). Mensink et al. (2022, p.  1) equally note, “a substantial subgroup of trauma-exposed, treatment-­ seeking police officers and military veterans could be classified as suffering from [moral injury]” (see also, Miller, 2022b; Papazoglou et  al., 2023; Tuttle et  al., 2019a, b). “Moral injury …is difficult to recognize and is usually ignored. … the effects of moral injury and its implications for mental and spiritual health … persists throughout the life and career of those affected” (Saugh, 2021, p. 2). Miller (2022b, p. 723) insightfully distinguished between “morally legitimate use of coercive force and lethal force (respectively).” They explain: While the morally legitimate use of harmful methods is constitutive of these occupational roles, ‘dirty hands’ methods are not. Roughly speaking, a ‘dirty hands’ action is one that is morally wrong and (typically) unlawful but done for the sake of a good outcome. Both categories of action are conducive to moral injury, but ‘dirty hands’ actions much more so, especially given the slippery moral slope from ‘dirty hands’ actions to egregious moral wrongdoing.

The genesis of moral injury in police work, regarded as “one of the most stressful professions” (Garcia-Rivera et al., 2020), is not as simple and discrete as the mismatch between personal morals and on-the-job actions and observations discussed above. Rather, commentators have attributed police moral injury to a wide array of organizational, operational, and individual circumstances (Sherwood et al., 2019), exacerbated by cultural and self-stigma preventing or delaying intervention, that serve as the constellation of circumstances conspiring to morally injure those officers caught in the maelstrom. These are considered in turn below.

Organizational Triggers Organizational Structure Police officers often work irregular shifts that can disrupt their natural sleep-wake cycle and lead to chronic sleep deprivation. This can cause a range of physical and mental health problems, including an increased risk of heart disease, diabetes, obesity, and depression. Long hours and high workloads can also lead to chronic stress (Conn & Butterfield, 2013; Levesque, 2021), which can have a detrimental impact on an officer’s mental health and cognitive function. Moreover, police officers are frequently exposed to traumatic events, such as violent crime, accidents, and

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disasters, which can further exacerbate stress and contribute to the development of post-­traumatic stress disorder (PTSD). The cumulative effects of these factors can impair an officer’s judgment, reaction time, and decision-making ability, potentially leading to mistakes, errors, and even fatal incidents. Yet, even the drudgery of policing can be problematic. As Liberman et al. (2002) argue, “Exposure to routine occupational stress has been found to be a stronger predictor of psychological distress, including posttraumatic stress symptoms, than is the cumulative exposure to critical incidents or danger.” A police recruitment and retention “crisis” following a series of high-profile officer misconduct incidents in the twenty-first century has only exacerbated these organizational stressors (Doyle et  al., 2021; International Association of Chiefs of Police, 2019; McLean et  al., 2022; Police Executive Research Forum, 2019). One recent study found that 87% of police officers surveyed were experiencing “high organizational stress levels” (Quieros et al., 2020), a byproduct of excessive and unrelenting paperwork (Conn & Butterfield, 2013), deference to rank regardless of how superior officers behave (Simmons-Beauchamp & Sharpe, 2022), fatigue, insufficient time with family and friends, bureaucracy and red tape, staff shortages, and inconsistent leadership (Kohan & Mazmanian, 2003; McCreary & Thompson, 2006; Tuttle et al., 2019b).

Police Culture Police culture is a “prism … permeated by a unique subculture, with its own tenets, values, beliefs, and jargon … initiated … when new members join the police force” (Papazoglou & Tuttle, 2018). Police culture can create an “us vs. them” mentality that fosters a sense of camaraderie and “loyalty” among officers, even “brotherhood/sisterhood, and solidarity” (Papazoglou & Tuttle, 2018), but also can lead to a code of silence that discourages officers from reporting wrongdoing by their colleagues. This can contribute to a culture of impunity, where officers are not held accountable for their actions and feel justified in using excessive force or engaging in unethical behavior. Police culture is not a monolithic construct but varies by officer work assignments, years of experience, officer burnout, exhaustion, disengagement, and other individual officer and departmental characteristics (Patterson & King, 2023; Sommers & Terrill, 2022). It is commonly insulated from outside influences by siloing (Filstad & Karp, 2021). Police culture “is a set of attitudes and values, developed as coping mechanisms for police work’s unique and inherent strains, that fosters distrust toward, and isolation from, citizens” (Silver et al., 2017). Officers can come to trust and socialize comfortably and almost exclusively with fellow officers as only fellow officers “understand” while civilians are “clueless.” That isolation and insulation cement the siloed police culture that is prone to a potpourri of adages and maxims (Fig. 3.1) grounded on dubious foundations and likely to lead to unfortunate consequences including but not limited to moral injury.

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Fig. 3.1  Police culture false adages and maxims. (Source: Word cloud created by authors)

Organizations can create, contribute to, and support a police culture of noble cause corruption (Caldero & Crank, 2015; Klockars, 1980) “whereby police leaders often condone police work in which the ends justify the means, like breaking rules to catch criminals” (Blumberg et al., 2020, p. 2). Noble cause corruption is a dangerous and insidious phenomenon that occurs when law enforcement practitioners engage in unethical and illegal behavior in pursuit of what they see as the greater good (Klockars, 1980). While these practitioners may genuinely believe that falsifying evidence, lying under oath, and other actions are justified by a desire to protect the public, the reality is that noble cause corruption undermines the very principles of justice and fairness that law enforcement is meant to uphold. And the consequences can be devastating, including wrongful convictions, the imprisonment of innocent people, and the erosion of civil liberties. Other police culture triggers for moral injury include “archetypal masculinity” and dominance (Doyle et al., 2021; Edwards & Kotera, 2021), wherein any sign of emotional or psychological stress can be equated with weakness and potential adverse career consequences (Edwards & Kotera, 2021). This can stifle officer mental health interventions (Boccher, 2022; Bullock & Garland, 2018), leading to a diminished capacity among officers to experience and express emotions. Blunted affect, “remaining calmly stoic when disgusted or smiling when actually angry”

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(Blumberg et al., 2019), for example, may manifest as a lack of empathy, emotional detachment, and reduced motivation to engage with others, negatively impacting an officer’s personal and professional life, as well as their ability to perform their duties effectively. Some of these police culture traits and artifacts may at times be useful survival tools and efficient stereotypes, but they also contribute to officer moral injury. It is not hyperbole to suggest the tensions between the police and the public in many communities are at an all-time high (Blumberg et al., 2018). Those tensions foment declines in civilian trust in police (Jones, 2021). Furthermore, low Black civilian trust in police is persistent at nearly one-half the rate of White civilian trust in police: The low levels of pro-police attitudes among Black Americans are likely due to the historical use of police to enforce racially discriminatory laws and social norms emanating from a racial hierarchy of White dominance, as well as bias in policing and the enforcement of superficially race neutral laws that persists to the present day. The finding that other non-­ White participants were much more similar to White participants in their attitudes toward police suggests that Black Americans in particular–rather than non-White Americans in general–have an especially contentious and complex relationship with police in the United States. (Vitro et al., 2022)

Racism within the police service is a deeply troubling issue that not only undermines public trust in law enforcement but also creates a source of trauma for Black police officers who are often the targets of discrimination and bias within their own ranks (Bolton & Feagin, 2004). For Black police officers, the experience of racism can be especially traumatic. They face the dual burden of being both a member of law enforcement and a Black person in a society that continues to perpetuate systemic racism (Bolton & Feagin, 2004). This means they not only have to navigate the difficulties of their job but also the added stress of being subjected to discrimination by their colleagues, which can cause significant mental and emotional harm. Black officers are often subjected to microaggressions, overt racism, and bias in the workplace (Bolton & Feagin, 2004). They may be overlooked for promotions or opportunities, excluded from decision-making processes, and subjected to unwarranted scrutiny and suspicion by their colleagues. This can lead to feelings of isolation, anxiety, and depression, and ultimately cause them to question their place in law enforcement. Moreover, the trauma experienced by Black police officers is compounded by the knowledge that they are members of a profession that is often seen as complicit in perpetuating racial injustice (Preito-Hodge, 2023). They face a moral dilemma, as they are expected to enforce laws that disproportionately affect Black communities, while also being subjected to the very same biases and injustices.

Organizational Triggers

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Police Training and Discretion Creep Police pre-service training serves as the entry point into the profession and the beginning of the cultural myopia, siloing, and trite maxims discussed above. In-service (on-the-job) training—during initial field training and continuing education—enlightens officers at times and further indoctrinates at others. And commentators have rued the role some training plays in perpetuating some of the misguided debilitating maxims and cultural artifacts that are depicted in Fig. 3.1. Researchers have singled out the role that training has played in fostering the maxims, favoring police siloing, and predisposing some officers to excessive force, particularly with some population subgroups: “part of the training overemphasizes the dangerousness of the job by constantly stressing physical survival on the streets at all costs … training could present the job’s dangerousness more accurately to avoid instilling new officers with an unrealistically threatening availability heuristic” (Blumberg et al., 2018, p. 3); they also noted previous research revealing that police training inculcates a culture characterized by “us vs. them” mindsets and strong bonds between officers “to rely on each other to stay out of trouble or to avoid punishment” (Blumberg et al., 2016). “The regular use of discretion by police officers, a practice that should never be constrained, nevertheless, can be considered a precursor to ethically questionable behavior. … this routinely exposes police officers to situations in which they are forced to make moral compromises, such as ‘when legality conflicts with other values, like effectiveness, efficiency, and possibly even the public interest’ …. These situations in which police officers are forced to make moral compromises may lead to a decline in personal integrity” (Blumberg et al., 2018, p. 4). Pre-service training is also an entry point into seeing officers’ roles as free-­ flowing and situational (transactional?) discretion unbounded by fixed rules (even the Constitution), with that officer discretion largely unobserved and unsupervised on every shift. And, of course, that pre-service training is augmented by field training modeling discretion, in-service continuing education that often celebrates discretion, agency leadership that rewards or ignores discretion, prosecutors that are sometimes complicit, juries giving great leeway to officer discretion, and trial and appellate court cases that habitually bless even excesses in officer discretion, imparting on officers that “there is a difference between the letter of the law and the spirit of the law … , and … to understand that morality is sometimes situational or relative, for example, police officers are legally permitted to lie to or deceive a suspect” (Blumberg et  al., 2018). Apparently all that training and situational-transactional ethics and decision-making are taught to officers on the theory that “we” need and want those officers “on that wall” (Sorkin, 1991). The slippery slope of officer misconduct is often addressed in discussing police gratuities (Coleman, 2004; Sherman, 1985; Singh, 2022). Gilmartin and Harris (1998) referred to a related construct as “the continuum of compromise.” One might call it “discretion creep.” While some find “slippery slope” theories overstate the inertia and inevitability of minor gratuities leading to increasing financial

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3  Moral Injury, Compound Officer Trauma, and Officer Mental Health

misconduct (e.g., Beer, 2020, pp. 36–38), slippery slope is perhaps more applicable to errant police discretion. It starts small then escalates. As Eldridge (2011) explains: Concerned more with ends than means, a dependence on subjective judgment can create what one theologian has characterized as ‘moral chaos.’ In other words, the practice of ‘situational ethics’ can lead to a world where you don’t have to obey the rules if you can convince yourself and articulate to your supervisors (in a law enforcement context) that your action is justifiable given the ‘totality of the circumstances.’

Some examples have been addressed, such as allowing police discretion in the operation of body cams (Sutherland, 2017), financial gain (Boateng et  al., 2022; Gottschalk, 2012); new crime-fighting technologies (Selinger & Durant, 2022; Zacarese, 2022; see also Chap. 6 herein), “big data” in service to police investigations (Ye, 2021); excessive force (Byrd, 2017); and many more.

Operational Triggers Organizational and cultural triggers conspire with operational triggers to yield moral injury in police. It is true, “extreme stress and trauma are inherent to police work” (Papazoglou & Tuttle, 2018). Rudofossi and Lund (2009) estimated that each New York Police Department officer might experience “at least 900” traumatic incidents over their law enforcement career, and tensions between civilians and officers can increase the stress and trauma borne by officers on the job (Blumberg et al., 2018; Hofer et al., 2021). Operational triggers include repeated exposure to threats to the officers’ life and health, and to suffering of others (secondary traumatic stress) (Conn & Butterfield, 2013; MacEachern et al., 2011; Morabito et al., 2021); “unremitting workload” and a felt sense that any officer’s capacity to help the vulnerable is constrained by insufficient staffing and resources (Doyle et al. (2021, p. 9); soldiering on while suffering from exhaustion, burnout, and guilt (Garcia-Rivera et al., 2020, pp. 1–2; Quieros et al., 2020, p. 12); compassion fatigue, itself a trauma, from being first on scene at traumatic events (Papazoglou et  al., 2019); unpredictable calls for service on every shift, managing difficult workplace dilemmas, and absorbing the sequelae of their own and fellow officers’ ethical, moral, and sometimes criminal transgressions (Tuttle, Stancel, Russo, Koskelainen, & Papazoglou (2019); in addition to all the organizational structural stressors discussed above, that bleed over into operational stress.

Individual Predispositions In addition to organizational and operational stressors generating moral injury in officers, each individual officer’s own personality characteristics or own history before public safety employment that may predispose that officer to be particularly

Individual Predispositions

35

resilient against or susceptible to developing moral injury on the job. Officers with personal resilience, life satisfaction, social support, and hardiness all predispose them to be resilient to the mechanisms that convert stressors to moral injury in so many officers (Klimley et  al., 2018). Fortunately, officers, on average, are more stress resilient than the general population (Galatzer-Levy et  al., 2013; Marmer et al., 2006; Papazoglou & Tuttle, 2018). And officers who remain steadfast to their personal ethical foundations and pursue comprehensive wellness programs are more likely to resist moral injury (Blumberg et al., 2020, p. 2). A substantial research effort has focused on the impact on resilience or susceptibility to moral injury for those officers who suffered victimization and other adverse experiences in their childhoods (MacEachern, 2011; Roth et  al., 2022), both of which found that adverse childhood experiences can exacerbate susceptibility to moral injury in police work but that emotional regulation skills and strengths can mitigate the susceptibility.

Group Stigma and Self-Stigma A stigma surrounds seeking mental health interventions across regions and industries, but mental health’s stigma tentacles run particularly deep in policing where suffering in silence can become the norm, whether occupational or agency stigma or self-stigma (Velasquez & Hernandez, 2019). Occupational or agency stigma is an unfortunate feature of police culture, particularly the archetypally masculine variants of that culture, such that seeking mental health services can be seen as a sign of weakness and unfitness for duty (Bullock & Garland, 2018; Doyle et  al., 2021). Self-stigma is the label when individual officers constrain or keep very confidential their own needs for or attempts at securing mental health counseling and treatment. The bridge leading from occupational or agency stigma to self-stigma is clear when one considers that over 90% of officers believe negatively associated stigmas influence their decision to not seek mental health services; those officers described their beliefs, derived from police culture and from within, that seeking counseling meant they were or would be seen by fellow officers as weak, a liability, and cannot be trusted, and that they feared adverse peer judgments (Drew & Martin, 2021). Those fears are rational, of course, as officers suffering from mental health issues are seen by colleagues as acting inconsistent with the police culture of dominance and masculinity, as weak, as unable to perform, be tough, or in control (Edwards & Kotera, 2021), as “incongruent to the traditional ethos of policing” (Papazoglou & Tuttle, 2018, p.  3), and as members of a “marginalized community” (Bell & Eski, 2016, p. 96). Self-stigma, though, is the stigma at the decision node for the officer in need of mental health intervention. After all, an officer can seek intervention in spite of agency stigma, but an officer burdened with self-stigma has a steep uphill climb.

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3  Moral Injury, Compound Officer Trauma, and Officer Mental Health Self-stigma refers to mechanisms that operate through the individual’s anticipation of rejection, their fear of rejection and the internalization of stigmatizing responses [and may have] damaging psychological consequences. Individuals may devalue themselves because they believe that the label of ‘mentally ill’ is viewed negatively by others … they may be concerned about the responses of others and act defensively, leading to strained interaction and isolation…. Conversely, they might act less confidently and suffer from diminished self-­ esteem, self-efficacy and confidence in their future. (Bullock & Garland, 2018, pp. 179–180)

Self-stigma is magnified by lack of agency support, unhealthy coping strategies (such as alcohol consumption), and expectations that mental illness may harm or end their career (Edwards & Kotera, 2021, p. 1117, 1122, 1129).

Compound (Complex) Trauma Compound trauma is the experience of new trauma when prior traumas have not yet been resolved or “prolonged, chronic, and ongoing exposure to potentially traumatic incidents, loss, and extreme stress” (Papazoglou & Tuttle, 2018, p. 2). That compound trauma (also known as complex trauma) can change brain chemistry and further damage resilience and self-efficacy more than the individual trauma experiences alone. “Trauma-related events experienced by officers may include physical injury while on duty, an officer-involved shooting, the death of a coworker, hostage situations, and officer suicides … officers are often exposed to persons who have been injured or killed because of traffic accidents, murders, suicides, and other incidents. Exposure to dead bodies has been found to be a significant psychological stressor among officers when the incident is traumatic and unexpected … officers report feelings of powerlessness and despair following incidents involving injury or death to children” (Chopko, 2010). It is not an overstatement that policing is a paradigm path for developing compound trauma. As the next section argues, it is awful that we have allowed officers with mental health challenges to suffer in silence. The consequences of those agency choices, while aware of the impacts of trauma and moral injury on officers, to pile overtime upon shift work upon trauma after trauma on officers while discouraging through stigma and culture the likelihood of the suffering officer to receive the help they need, are suffered by the officers but also by civilians and agencies as well.

 he Effect of Moral Injury and Trauma on Officer Mental T Health and On-the-Job Performance “What happens to [officers] who are unable to contextualize or justify their actions or the actions of others and are unable to successfully accommodate various morally challenging experiences into their knowledge about themselves and the world?” (Litz et al., 2009, p. 696). As Blumberg and Papazoglous (2019, p. 28) noted, “It is

The Effect of Moral Injury and Trauma on Officer Mental Health and On-the-Job…

37

time to stop ignoring the wounded elephant in the room. … the wide range of trauma-related conditions experienced by police officers [and] the failure to address trauma-related reactions may lead to detrimental outcomes for officers’ health, wellness, and job performance.” In retrospect that borders on belaboring the obvious. But apparently, this is not so obvious after all although it should be. Officers often respond to horrific vehicle accidents, violent crime scenes, injured or deceased children, and a string of civilians often all too unhappy to see the officer at all. And officers tend to shoulder that trauma burden alone. They cannot bring it home and tell their partner or children about the horrors of the day. Officers often hide their stress burden from their family, colleagues, and even themselves. Some may adhere to the belief that stigma attaches to admission of moral and mental health wounds. And they live daily in a milieu that too often favors suffering in silence even if that compromises one’s mental health and performance on the job (Regehr et al., 2021). All of the following adverse consequences have been documented in officers suffering from moral injury and compound trauma: • Compassion fatigue (Blumberg, 2022; Blumberg & Papazoglou, 2019; Papazoglou et al., 2019; Papazoglou & Chopko, 2017; Tuttle et al., 2019b). • Misconduct, generally (Raver & McElheran, 2022). • Burnout (Blumberg, 2022; Blumberg & Papazoglou, 2019; Garcia-Rivera et al., 2020; Sherwood et al., 2019; Tuttle et al., 2019b). • Grief and loss (Blumberg & Papazoglou, 2019). • Increased cortisol levels (Austin-Ketch et  al., 2012; Blumberg, 2022; Violanti et al., 2007). • Intrusive thoughts of guilt and shame (Blumberg, 2022; Doyle et  al., 2021; Papazoglou, 2017; Schröder-Bäck et al., 2022; Tuttle et al., 2019b). • Feelings of remorse and regret and lost moral innocence or goodness (Blumberg, 2022; Schröder-Bäck et al., 2022). • Disappointment and disillusionment (Blumberg, 2022). • Emotional exhaustion (Blumberg, 2022; Blumberg et  al., 2019; Garcia-Rivera et al., 2020). • Moral disengagement (Blumberg, 2022; Blumberg et al., 2018, 2020). • Moral compromise (Blumberg, 2022; Blumberg et al., 2018). • Ethical erosion (Blumberg, 2022; Blumberg et al., 2020). • Displacement and diffusion of responsibility (Blumberg et al., 2018). • Disregard or distortion of consequences (Blumberg et al., 2018). • Dehumanization of civilians (Blumberg et al., 2018, 2020; Hofer et al., 2021). • Depression (Boocher, 2022; Hartley et  al., 2016; Conn & Butterfield, 2013; Doyle et al., 2021; Edwards & Kotera, 2021; Hartley et al., 2016; Klimley et al., 2018; Sherwood et al., 2019; Tuttle et al., 2019b). • Post-traumatic stress disorder (Boocher, 2022; Chopko, 2010; Conn & Butterfield, 2013; Edwards & Kotera, 2021; Hartley et al., 2016; Klimley et al., 2018; Sherwood et al., 2019; Tuttle et al., 2019b). • Anxiety (Conn & Butterfield, 2013; Edwards & Kotera, 2021; Klimley et  al., 2018; Sherwood et al., 2019).

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3  Moral Injury, Compound Officer Trauma, and Officer Mental Health

• • • • • • • • •

Absenteeism (Conn & Butterfield, 2013). Domestic strain and violence (Conn & Butterfield, 2013). Excessive use of force (Conn & Butterfield, 2013). Substance abuse (Conn & Butterfield, 2013; Klimley et al., 2018). Helplessness (Conn & Butterfield, 2013). Self-harm (Doyle et al., 2021; Papazoglou, 2017). Cognitive avoidance (Doyle et al., 2021). Belief that “everyone” is dangerous or fundamentally “bad” (Hofer et al., 2021). Avoidance and withdrawal from discretionary policing activities (Hofer et al., 2021). Defensive, hostile, and enforcement-based activities (Hofer et al., 2021). Chronic pain, cardiovascular problems, arthritis, and gastrointestinal issues (Klimley et al., 2018). Suicide (Klimley et al., 2018). Sleep disorders (MacEachern, 2011; MacEachern et al., 2011).

• • • •

The statistics left in the wake of this moral injury epidemic among officers are striking and unacceptable. Depression rates for officers are twice the rates for the general public (Boccher, 2022, p. 4; Hartley et al., 2016; Henderson et al., 2015). Fully 7–18% of officers suffer from post-traumatic stress disorder (Klimley et al., 2018). Officers exhibit 200–400% higher domestic violence rates, 25 times more likely to die from heart disease, 8–11-year shorter life expectancies compared to the general population rate; and a 75% divorce rate compared to 50% for the general population (Henderson et al., 2015). Some officers reported vivid memories of traumatic events on the job more than two decades after some events (Conn & Butterfield, 2013). Even retired officers are ten times more like to die by suicide after retirement than the general population (Henderson et al., 2015). Indeed, officer suicides exceed deaths in the line of duty annually on average (Jetelina et al., 2020). As horrific as that parade of horribles appears, the effect of compound stress, moral injury, and all the above symptoms on the afflicted officers’ operational skill and judgment erosion are staggering (MacLean & Lamparello, 2022, pp. 64–66). The meta-analysis conducted by Verhage et al. (2018) is the most sobering. They studied past research on the impacts of acute and chronic/compound stress on police decision-making and police performance. Verhage et al. (2018) found that officers under acute or chronic/compound stress over-estimated degree and nature of threats; under-estimated escape, distance, and cover options and available time; over-­ estimated how close or serious a threat was; exhibited slower reaction times but fired their weapon sooner and less accurately; suffered auditory exclusion, tunnel vision, and selective attention; and overall diminished cognitive and motor skills. In a word, leaving officers on duty who suffer chronic/compound stress and its sequelae puts the officer and the public at risk. Live and online mental health intervention tools for use with police suffering moral injury and compound trauma have been developed and are improving (e.g., Rubim et al., 2021; ter Heide et al., 2022); they only need to be rolled out to more officers in need.

Getting Beyond Moral Injury and Trauma

39

Getting Beyond Moral Injury and Trauma The overwhelming majority of men and women who choose to serve in law enforcement do so with a deep sense of commitment to protect and serve their communities. They are the frontline guardians of our safety, facing challenging and dangerous situations that most of us could never imagine. But with that responsibility comes a heavy toll on their mental health, compounded by trauma that is too often left unaddressed. We need to take action to support the mental health of our police officers. As discussed, the trauma they experience on the job can lead to a host of mental health issues, including depression, anxiety, PTSD, and addiction. This not only harms the officers themselves but also puts the public at risk if they are unable to perform their duties effectively. We need to provide comprehensive mental health resources for police officers. This includes regular and routine mental health screening and education for depression, anxiety, and PTSD; access to well-funded mental health practitioners who are trained in working with officers, moral injury, and compound trauma; peer counselors who understand police service and these same issues; time off for mental health care and counseling as needed after critical incidents; more time off and less shift work and overtime in general; a culture of inclusion that values diversity and provides support for Black officers to ensure their mental health and well-being; a sensitized core of agency leaders open to and supportive of mental health interventions for line officers; a revised police culture and in-service training that better prepares new police trainees for the psychological challenges of police service; field training that eschews war stories and focuses instead of ethical, evidence-based policing and officer wellness; in-service training that fosters emotional and psychological health, healthy coping skills and practices, resilience, and hardiness; resources for officer family support. And all this must be underpinned by a culture that encourages officers to seek help when they need it, without fear of stigma or reprisal. The foundation is understanding. At the same time, we must address the root causes of trauma in policing. This means addressing systemic issues such as racism, excessive use of force, and lack of accountability. This includes. We must provide better training and support for officers to prevent traumatic incidents from occurring in the first place. As a society, we rely on our police officers to keep us safe. We can no longer ignore the awful reality of stressed and chronically traumatized officers on the job compromising their physical and emotional/mental health and the lives of civilians they encounter on the job. It is our responsibility to take action and ensure that our police officers have the resources and support they need to lead healthy and productive lives, both on and off the job. The time to act is now.

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3  Moral Injury, Compound Officer Trauma, and Officer Mental Health

Discussion Questions 1. What is moral injury, and how does it differ from other types of trauma experienced by police officers? 2. How can the cumulative effects of trauma impact an officer’s mental health, and what strategies can be employed to address this issue? 3. How does the culture of policing contribute to officer mental health issues, and what can be done to create a more supportive and less stigmatizing environment for officers who are struggling? What role can leadership play in addressing these issues? 4. How does the prevalence of mental health issues among police officers impact their ability to do their jobs ethically and effectively? 5. How do other professions, such as military personnel and healthcare workers, address and cope with similar types of trauma and mental health issues? What lessons can be learned from these fields and applied to the policing profession?

Chapter 4

Court-Approved Police Deception in Obtaining Consent to Search

Summary • Civilians in the United States have the right to withhold, refuse, or limit consent to search their personal and real property. • However, there are many examples of law enforcement officers engaging in deception to obtain consent for a search or arrest. This chapter questions whether consent obtained through deception can be called consent at all. • Since protection from unreasonable searches and seizures is a constitutional right, allowing officers to deceive subjects into waiving that constitutional right violates the Fourth Amendment. • The waiver of rights protected under the Fifth and Sixth Amendments, such as the right to remain silent or the right to counsel, must be voluntary, knowing, and intelligent. • The use of technology has made police deception easier and more pervasive, and the chapter cites several examples of this. • The Supreme Court has been continually willing to see voluntary consent where seemingly no one else would.

In simple terms, the Fourth Amendment requires that searches and seizures be conducted only with a valid warrant that is based on probable cause unless an exception to the warrant requirement applies. One of the exceptions to the warrant requirement is consent. Police officers may conduct a search without a warrant if the individual voluntarily consents to the search. However, for consent to be valid, it must be given voluntarily and knowingly. Stated another way, civilians in the United States have a right to withhold, refuse, or limit consent to search their personal and real property. Yet courts have repeatedly held that police officers, when seeking consent to search, need not explain to © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 C. E. MacLean, J. A. Densley, Police, Prosecutors, Courts, and the Constitution, https://doi.org/10.1007/978-3-031-39082-1_4

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4  Court-Approved Police Deception in Obtaining Consent to Search

the subjects that they have the right to withhold or refuse consent or even the right to limit the scope of consent1; indeed, there need be no showing the subject was even aware of the right to withhold, decline, or limit consent. And this is not a de minimis issue; it has been estimated that 98% of warrantless searches are conducted via consent (Strauss, 2002b). In fact, between 85% and 88% of all vehicle drivers consent to search of the vehicle when asked (Schwartz, 2021). “Officers also often use deception when asking for and receiving consent to enter or search” (Connelly, n.d., p. 1). Officer deceit to secure consent to enter a home is even more intrusive given the privacy typically accorded one’s home: “It is axiomatic that the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed” (Welsh v. Wisconsin, U.S., 1984; see also Florida v. Jardines, U.S., 2013 (“the home is the first among equals” in Fourth Amendment protections). The amici brief of the Pacific Legal Foundation and Restore the Fourth, Inc. in Spivey v. United States (U.S. 2018) richly details the antifederalist Framers’ rejection of general warrants and writs of assistance common in Britain at the time in favor of individual liberties and constitutional preclusion of unreasonable searches and seizures. After all, since protection from unreasonable searches and seizures is a constitutional right, allowing officers to deceive subjects into waiving that constitutional right should be—at least—unconstitutional. Using that lens, consider the breathtaking scope and intrusion of consent searches. Searches pursuant to a warrant, for example, must (a) be approved by a neutral magistrate who understands constitutional warrant requirements, (b) be supported by probable cause, and (c) specifically enumerate the place to be searched and the items to be seized. And the searchers executing the warrant must only look where the enumerated items may be found (thus, one cannot look in desk drawers when the search warrant indicates that you may only search for and seize a stolen elephant). Consent searches, on the other hand, require no quantum of proof, no statement of purpose, no enumerated list of items, and no a priori limit on the places to look unless the consenter presciently sets such limits; and consent searches are not reviewed or approved in advance by a magistrate and are granted by civilians who are not informed and may not even know they have the right to refuse the requested search. “Consent searches can go forward with no evidence of criminality. A hunch will do. And an officer’s reason for requesting consent—whether it be motivated by bias, or because he or she wanted to practice his or her technique at

 Schneckloth v. Bustamonte, 412  U.S. 218, 231 (1973) (“it would be thoroughly impractical to impose on the normal consent search the detailed requirements of an effective warning”); United States v. Drayton, 536 U.S. 194, 207 (2002) (“knowledge of the right to refuse consent is one factor to be taken into account[, but] the government need not establish such knowledge as the sine qua non of an effective consent” (quoting Schneckloth v. Bustamonte, 412 U.S. at 227)). In the same vein that Miranda rights are required before seeking waivers from arrestees of their rights to silence and counsel, no less warning and knowledge should be required before seeking consent from one who may have no idea of the right to withhold, refuse, or limit consent to search. 1

The Supreme Court and the Fourth Amendment

43

obtaining consent from motorists or bus passengers—does not undermine the validity of any consent given by a person” (Maclin, 2008, p. 27). Breathtaking!

The Supreme Court and the Fourth Amendment As the U.S. Supreme Court noted in another Fourth Amendment context: The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime… . An officer gaining access to private living quarters under color of his office and of the law which he personifies must then have some valid basis in law for the intrusion. Any other rule would undermine ‘the right of the people to be secure in their persons, houses, papers and effects,’ and would obliterate one of the most fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law. (Johnson v. United States, U.S. 1948, pp. 13–14, 17)

Surely then, when courts review the constitutionality of consent searches, they are extraordinarily careful to ensure the police requested the consent to search in good faith, did not mislead the subject into consenting, had a bona fide basis for the requested search, restricted their search to the areas likely covered by that bona fide basis, and that the subject knew of their constitutional right to withhold consent. Right? Wrong. Instead, the Supreme Court “has been continually willing to see voluntary consent where seemingly no one else would. … the [Supreme] Court has lost sight of the heart of the Fourth Amendment itself” (Burke, 2016, pp. 512, 515). And it is critical to recall that since “a police officer is perceived as an authority, he need not rely on coercive statements to achieve a goal—his role is adequate, and a polite request can increase face-sensitivity without reducing coercive power” (Nadler, 2002, pp. 188–189). “[A]s applied by the [Supreme] Court, the concept of ‘voluntary consent’ is a myth” (Burke, 2016, p. 541). First, note that police need reasonable suspicion of traffic or license violations (a reasonable, articulable basis) to pull over a motorist (Kansas v. Glover, U.S. 2020), need reasonable suspicion of criminal conduct to stop a pedestrian and inquire (Terry v. Ohio, U.S. 1968), need reasonable suspicion and reasonable belief the person was armed to stop and frisk a subject (Terry v. Ohio, U.S. 1968), need probable cause that contraband is present or that evidence is related to the reason for the stop to search a motor vehicle without a warrant or consent (Carroll v. United States, U.S. 1925; Chambers v. Maroney, U.S. 1970), and need probable cause to obtain an arrest warrant or a search warrant from a neutral and detached magistrate richly trained in the law (U.S. Const. amend. IV: “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place

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4  Court-Approved Police Deception in Obtaining Consent to Search

to be searched, and the persons or things to be seized”). On the contrary, consent to search, which can be far broader than any of the other intrusions listed in this paragraph, is typically obtained from uninformed civilians with no judicial training or imprimatur and with any showing or no showing at all, let alone reasonable suspicion or probable cause. As evidence of additional inequity, note that Miranda v. Arizona (U.S. 1966) compelled officers, before questioning, to notify persons in custody of their right to remain silent and their right to counsel, including appointed counsel. Yet the U.S. Supreme Court has held that (1) neither the Fourth Amendment nor Miranda requires notifying subjects of their right to refuse consent, because (2) violations of the Fourth Amendment were not among the evils the Miranda decision was intended to prevent (Scheckloth v. Bustamonte, U.S. 1973, p. 231; Jones, 2003). Compounding the flaw that many subjects consenting to searches have no idea they may refuse consent2 is the tacit and sometimes explicit U.S. Supreme Court holding that officers may use tactics to deceive subjects into granting consent to search, when both constitutionally and ethically, “Deception should constitute coercion in the context of consent searches” (Strauss, 2002b, p. 884). In Ohio v. Robinette (U.S. 1996), the U.S. Supreme Court held that officers need not tell a stopped motorist they were free to go before asking for consent to search. In taking that state court decision for review, the U.S. Supreme Court sought to review and ultimately reversed the constitutionally sound state decision that held: The right, guaranteed by the federal and Ohio Constitutions, to be secure in one’s person and property requires that citizens stopped for traffic offenses be clearly informed by the detaining officer when they are free to go after a valid detention, before an officer attempts to engage in a consensual interrogation. Any attempt at consensual interrogation must be preceded by the phrase “At this time you legally are free to go” or by words of similar import. While the legality of consensual encounters between police and citizens should be preserved, we do not believe that this legality should be used by police officers to turn a routine traffic stop into a fishing expedition. (State v. Robinette, 653 N.E.2d 695, 696 (Ohio 1995))

In Schneckloth v. Bustamonte (U.S. 1973), the court further addressed the issue of consent searches. The case centered around whether the police had obtained valid consent to search a vehicle, and whether the consent was given voluntarily. The defendant, Bustamonte, was a passenger in a car that was pulled over for a traffic violation. A subsequent search uncovered evidence that led to Bustamonte’s arrest for forgery. Bustamonte argued that the search was unconstitutional because the driver of the car, Schneckloth, was coerced into giving consent by an officer in possession of a gun and in a position of authority. Schneckloth was not aware of his right to refuse the search, Bustamonte argued. However, the court expressly traded off law enforcement expedience for individuals’ constitutional rights when it held there was no need to determine whether the consenter knew consent could be withheld, because  Empirical research has demonstrated that most people are unaware they have the right to refuse consent (Chanenson, 2004, p. 454). 2

The Hits Keep Coming

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“consent may be the only means of obtaining important and reliable evidence [and] it would be thoroughly impractical to impose on the normal consent search the detailed requirements of an effective warning. Consent searches are part of the standard investigatory techniques of law enforcement” (p.  231). That borders on the ludicrous. The right to be free from unreasonable searches and seizures IS protected by the United States Constitution; the right of police to enjoy expedience at the cost of constitutional rights IS NOT. In United States v. Contreras-Ceballos (ninth Cir. 1993), the federal Circuit Court of Appeals for the Ninth Circuit held that officers could hold themselves out as Federal Express personnel to deceive a civilian into opening the residence door, a door the civilian would not have voluntarily opened had the civilian been informed there were officers at the residence door seeking to be admitted. Similarly, in United States v. Syler (seventh Cir. 1970) and United States v. Salter (seventh Cir. 1987), those federal circuit courts found constitutional the officers’ deception holding themselves out, respectively as a “gas man” and as the hotel clerk with a document for the civilian to sign. In Lewis v. United States (U.S. 1966), the Court affirmed officer use of a false persona as a drug purchaser. In United States v. Spivey (11th Cir. 2018), officers held themselves out as investigating a burglary in the burglary victims’ home but were actually there following up on the burglar’s tip that the victims were engaged in credit card fraud. According to federal courts, officers may deceptively hold themselves out as loyal friends (Hoffa v. United States, U.S., 1966); see also Bumper v. North Carolina (U.S. 1968) wherein the subject was deemed to have assumed the risk that an invitee could be an officer in disguise)); United States v. Raines (eighth Cir. 1976); United States v. Scherer (seventh Cir. 1982), mundane visitors, such as an undercover drug buyer (United States v. Lyons (D.C. Cir. 1983); Connelly, n.d.); United States v. Paul (seventh Cir. 1986)), undercover gambler (United States v. Robinson (eighth Cir. 1983)), undercover meat buyer (United States v. Shigemura (eighth Cir. 1982)), one feigning car trouble (United States v. Wright (eighth Cir. 1981)), or an undercover officer posing as a letter carrier (Hrubec v. United States (E.D.N.Y. 1990); Connelly, n.d.). The defendants in Contreras-Ceballos, Syler, Lewis, Spivey, Salter and thousands of other analogous cases did not voluntarily consent to opening the residence doors to allow officers to enter and search; the purported “consent” was gained (and the constitutional right was effectively waived) solely as a result of deception by the officers involved. So, is it honest to refer to these consent-by-deception cases as consent at all? After all, why did the officers engage in the deception in the first place? To deceive the subject into consenting.

The Hits Keep Coming Regrettably, “technology has made deceptive policing easier and more pervasive than traditional means ever did … these deceptive means are force multipliers” (Joh, 2015, p. 249). In the digital age, police deception has included false online

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personas, false Facebook pages, false Internet friends (see Hoffa v. United States, U.S. 1966 (a pre-digital “false friend” case)), false contraband sellers, false purveyors of pornography, false identity theft investigators actually investigating child pornography (Underwood, 2011), a variety of undercover situations (see cases collected at Warner, 1979), and countless more. These, like all police deceptions, have the gratuitous advantage of being successful and inexpensive, but as the Court held in other circumstances, “the evil the [Fourth] Amendment was designed to prevent was broader than the abuse of a general warrant” (Payton v. New York, U.S. 1980). Even the United States Department of Justice has taken to giving advice to police officers on how best to deceive: “Therefore, it is advisable to devise a deception that might routinely be experienced by residents in the ordinary course of events” (Sauls, FBI Special Agent, 1994). It gives one pause (or chills) to confront documents wherein federal government officers advise other law enforcement officers regarding how to skirt rather than honor the Social Contract and the United States Constitution. Compare that again to the Social Contract: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated …” (U.S. Const. amend. IV (emphasis added)). The U.S. Supreme Court said it succinctly in the middle of the last Century: “[I]n the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves” (Spano v. New York, U.S. 1959, pp. 320–321). When waiving rights protected under the Fifth Amendment, including the right to remain silent, the Supreme Court requires that persons in custody be read and understand their Miranda rights, and that waiver of the right to remain silent be voluntary, knowing, and intelligent (Johnson v. Zerbst, U.S. 1938, p. 464). Nearly a half-century later, the Supreme Court went further and indicated waiver of Miranda rights must be “the product of a free and deliberate choice … made with full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it” (Moran v. Burbine, 1986, p. 421). When waiving rights protected under the Sixth Amendment, including the right to counsel, the Supreme Court requires that persons in custody be read and understand their Miranda rights, and requires any waiver of the right to counsel to be voluntary, knowing, and intelligent (Montejo v. Louisiana (U.S. 2009); Brewer v. Williams (U.S. 1977)). But when the Supreme Court applies the Fourth Amendment, which forbids “unreasonable searches and seizures,” the Court finds that virtually any consent will do, and interposes no requirement that officers explain that subjects can refuse, limit, or subsequently withdraw consent to search. Although the Supreme Court has held that consent to search must be “voluntary,” (Florida v. Royer, 1983, p. 501) the Court has applied that standard so cavalierly as to render it a mirage (with a few exceptions, including consents resulting from threats to obtain a warrant and return (Gardiner, 1980)). Couple that with the empirical evidence that subjects do not know of their right to refuse or limit consent to search and with the compulsion inherent in the unequal bargaining posture between suspects and the police. And finally, recall that consent searches are the single largest category of searches by frequency, are law enforcement’s tactic of choice when

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they have no or insufficient evidence, and need not be supported by suspicion or any kind, let alone reasonable suspicion, let along probable cause. Consider this typical situation based on the Eleventh Circuit case, United States v. Spivey (2018), involving co-defendants and co-appellants, Eric Jermaine Spivey and Chenequa Austin. The facts are liberally drawn from Circuit Judge Martin’s dissenting opinion in that case. The two officers here had no warrant allowing their entry into the home of Eric Spivey and Chenequa Austin. Instead, they had a plan to get around the Fourth Amendment’s protections. They lied about their legal authority. They lied about their real reason for being there. And they took advantage of a public trust in law enforcement in order to search the S ­ pivey/ Austin home without a warrant. … the Majority opinion blesses the deliberate circumvention of constitutional protections, and in this way undermines the public trust in police. [The detectives] deliberately planned how to circumvent the Fourth Amendment’s general requirement that they get a warrant before searching someone’s home. … They decided to pretend to investigate burglaries that had already been solved, as a way to get consent to enter the home and search for evidence of credit-card fraud. To avoid suspicion, they also came up with the idea of Agent Lanfersiek dressing up as a crimescene technician. Agent Lanfersiek is a Special Agent of the U.S. Secret Service, and in that job had no authority to investigate a local burglary. … Nevertheless, this ploy, together with the costume he wore, gave him cover. Wearing his costume, he went through the Spivey/Austin home pretending to dust for fingerprints, asking for and receiving permission from Ms. Austin to go into areas of the home she likely would not have otherwise let him see. The officers hoped they would be able to see evidence of credit-card fraud in plain view. And if they did, they planned on using the evidence they had seen to get consent to search the rest of the home. In the event this plan did not work, the officers had an assistant state attorney on standby ready to get a search warrant. … The officers testified that when they arrived at Ms. Austin’s home, she was “genuinely excited,” “relieved,” and “happy” they were there to follow-up on the reported burglaries of her home. (United States v. Spivey, 11th Circuit, 2018 (Martin, J., dissenting), pp. 1218–1219)

The Eleventh Circuit majority upheld the ruse and their convictions, holding that condoning the deception here, makes sense in the light of the rule that police officers are permitted to obtain a confession through deception under the Fifth Amendment [citing Illinois v. Perkins, U.S. 1990, p. 297] … . The subjective motivation of the officers is irrelevant. Consent is about what the suspect knows and does, not what the police intend. … Pretext does not invalidate a search that is objectively reasonable. … The officers did not inform Austin that she had the right to refuse consent, but they were not required to do so. … Austin consented to the officers’ entry and search “at h[er] own peril” … . We agree with the district court that under the totality of the circumstances, “the government has shown by clear and positive testimony that the consents were voluntary, unequivocal, specific, intelligently given, and uncontaminated by duress or coercion” … . Not all deception by law enforcement invalidates voluntary consent. Austin and Spivey deride the “shocking” nature of the “misconduct” in this case, but we are “not empowered to forbid law enforcement practices simply because [we] consider[ ] them distasteful” (quoting Florida v. Bostick, U.S., 1991, p. 439). (United States v. Spivey, 11th Circuit, 2018 (majority opinion), pp. 1213, 1215–1218)

And when the majority decision was petitioned to the Supreme Court for certiorari to right this wrong, the Supreme Court denied certiorari and thereby allowed the Eleventh Circuit’s majority decision to stand. “At the heart of United States v. Spivey

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lies the intersection of deception and voluntary consent. … Specifically, “whether deception by law enforcement necessarily renders a suspect’s consent to a search of a home involuntary” … The court of appeals answered the question in the negative. Consequently, the court significantly broadened the approval for law enforcement officers to gain voluntary consent” (Myers, 2018, p. 628). That court, without blinking, held that pretense does not render consent involuntary. Awful and inexplicable.

Moving Forward It is time for police and the courts to end this “free-for-all” approach (Burke, 2016, p. 562) and “procedural injustice” (Gau, 2013, p. 770) officers too often apply to deceiving subjects into waiving their constitutional right to refuse consent to search. The current consent search situation is impossible to square with the Constitution’s Fourth Amendment and virtually impossible to rationally conceive as one law professor has persuasively captured through the eyes of law students: Every year, I witness the same mass incredulity. Why, one hundred criminal procedure students jointly wonder, would someone “voluntarily” consent to allow a police officer to search the trunk of his car, knowing that massive amounts of cocaine are easily visible there? The answer, I have come to believe, is that most people don’t willingly consent to police searches. Yet, absent extraordinary circumstances, chances are that a court nonetheless will conclude that the consent was valid and the evidence admissible under the Fourth Amendment. Although courts pay lip service to the requirement that a person’s consent to a search must be “the product of a person’s free will and unconstrained choice” in order to be valid, in reality that requirement means very little. (Strauss, 2002a, p. 211)

Nonetheless, some courts do get it right (see, Elgersma v. City of St. Paul, District Court of Minnesota, 2023). Consent to search obtained through officer deception is not consent at all; procedural justice should be the guidepost instead (Schulhofer et  al., 2011). At a minimum, officers must be compelled to explain to all before seeking consent to search that consent can be refused, can be limited in scope and time, and can be withdrawn at any time. “Police executives, therefore, must make a choice, as there is a trade-off between the convenience and possible short-term benefits of consent searches and the longer-term and more enduring effects of a populace that trusts and cooperates with its police. Consent searches undoubtedly do unearth some useful evidence; however, most searches do not result in the detection of contraband and they can threaten citizens’ rights to be free from unreasonable searches and biased law enforcement” (Gau, 2013, p. 771; Gau & Brunson, 2012). These legal and ethical conclusions are compelled by the United States Constitution and the Social Contract implicit therein. The use of police deception in obtaining consent to search poses a threat to the Social Contract. In one live observation study of police behavior in the field, the researchers found that almost “one-third of observed searches were unconstitutional, and almost none were visible to the courts” (Gould & Mastrofski, 2004, p. 320). While the courts have approved such

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tactics, police deception can erode the fundamental trust between law enforcement and the public, which is essential for a functioning justice system.

Discussion Questions 1. What is court-approved police deception and how is it defined in the context of obtaining consent to search? 2. What are the key legal cases that have shaped the use of court-approved police deception in obtaining consent to search? 3. How might advances in technology, such as body cameras and surveillance footage, affect the use of police deception during investigations, and how might these technologies be used to prevent deceptive tactics? 4. How do different jurisdictions and legal systems around the world approach the use of police deception in obtaining consent to search? Could the United States learn something from other contexts? 5. What reforms or changes to the law, policy, or practice might be necessary to address the ethical and legal challenges associated with court-approved police deception in obtaining consent to search?

Chapter 5

Court-Approved Police Deception in Interrogations

Summary • Rights are guarantees that derive directly from the U.S. Constitution—they cannot be forfeited by misconduct. • Coercive, deceptive, and psychologically oppressive interrogation techniques can lead to false confessions and wrongful convictions, and they violate the Fifth and Fourteenth Amendments. • Miranda warnings are required whenever a police officer is asking questions of a person in custody, but the courts have limited the scope of the Miranda decision. • Ploys that mislead or lull a suspect into a false sense of security and that did not compel or coerce him or her to speak have somehow been found to be outside Miranda’s concerns. • The soft standard courts purport to apply is “voluntariness,” and the statement, admission, or confession must have been given voluntarily based on the totality of the circumstances. • Police deception can result in false confessions and wrongful convictions and erodes trust in law enforcement and the justice system. It can be seductive to come to believe that suspected criminals have forfeited their constitutional rights when first they “practice[d] to deceive” (Scott, 1808). But that is not how rights work, let alone constitutional rights. Rights are not privileges that can be forfeited by misconduct. Rights are guarantees that derive directly from the Supreme Law of the Land, the social contract on which our entire government rests. One need only consider that even a suspected child murderer has a right to remain silent; that is a constitutional right—inalienable.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 C. E. MacLean, J. A. Densley, Police, Prosecutors, Courts, and the Constitution, https://doi.org/10.1007/978-3-031-39082-1_5

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Coercive, deceptive, and psychologically oppressive interrogation techniques harm public confidence in the police, leading some suspects to waive constitutional rights they would not have waived absent the coercion, deception, and oppression. They also result in far too many false confessions and wrongful convictions. Most importantly, they violate the Fifth and Fourteenth Amendments to the U.S. Constitution and the Social Contract. But courts, led by the U.S. Supreme Court, have interpreted many constitutional rights toward the vanishing point. In this chapter, we address the right to remain silent, which is memorialized in the Fifth and Fourteenth Amendments to the U.S. Constitution. The Fifth Amendment protects the right to remain silent against federal officials and the Fourteenth Amendment protects the right to remain silent against state officials. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence [sic] to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. (U.S. Const. amend. V., emphasis added) No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (U.S. Const. amend. XIV, § 1, emphasis added) We hold that the Fourteenth Amendment guarantee[s] the protection of the Fifth Amendment’s privilege against self-incrimination … [, that is] the Fifth Amendment’s exception from compulsory self-incrimination [right to remain silent] is also protected against abridgement by the States. (Malloy v. Hogan, U.S., 1964, pp. 3, 6)

Miranda Warnings in Context “In my view, good police work is something far different from catching the criminal at any price. It is equally important that the police, as guardians of the law, fulfill their responsibility to obey its commands scrupulously” (Brewer v. Williams, U.S., 1977, Marshall, J., dissenting). Related to the limits on obtaining confessions and admissions, these principles and the Social Contract are seminally contained within the Fifth and Fourteenth Amendment protection of the right to remain silent. Then surely the U.S. Supreme Court should require—and U.S. police should deliver— interrogations that scrupulously honor civilians’ right to remain silent and free from compelled self-incrimination. Right? Wrong. Miranda warnings are required whenever a police officer is asking questions of a person in custody (Miranda v. Arizona, U.S., 1966). You may recall from cop shows on television that they are often phrased as follows:

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You have the right to remain silent. Anything you say can be used against you in court. You have the right to consult an attorney for advice before we ask you any questions. You have the right to have an attorney with you during questioning. If you cannot afford an attorney, one will be appointed for you before any questioning if you wish. If you decide to answer questions now without an attorney present, you have the right to stop answering at any time.

But what if officers place an undercover officer as a plant posing as a jail inmate and asking (questions of) a fellow inmate (in custody, of course) about the crime? Would that violate Miranda? Well, the U.S. Supreme Court said “no,” because, Miranda was not meant to protect suspects from boasting about their criminal activities in front of persons whom they believe to be their cellmates. …Respondent viewed the cellmate-­agent as an equal, and showed no hint of being intimidated by the atmosphere of the jail [and] was motivated solely by the desire to impress his fellow inmates. He spoke at his own peril. Miranda forbids coercion, not mere strategic deception by taking advantage of a suspect’s misplaced trust in one he supposes to be a fellow prisoner. (Illinois v. Perkins, U.S., 1990, pp. 297–298; see also Glennon & Shah-Mirani, 1990)

That, by any measure, exacts a breathtaking diminution of the Fifth Amendment. Remember that Perkins had already chosen to remain silent and speak only through counsel; in a word, we know Perkins would NOT have given that statement if he had known the person he was talking to was a police officer. Perkins had invoked his right to remain silent. The police cavalierly ignored that invocation of Perkins’s right to remain silent by slipping in a police officer disguised as an inmate to extract from Perkins the information Perkins had chosen to withhold from the police. And the Supreme Court simply demurred. One need not wonder why law enforcement and the criminal justice system, at the time this chapter is being written, are experiencing nearly the lowest civilian confidence ever recorded—aided and abetted, open-eyed, by the U.S. Supreme Court. Consider that police are not permitted to lie to the City Council when proposing an annual department budget but are virtually free to lie to civilians to secure a confession (Alpert & Noble, 2008). Small wonder many civilians see police not as public servants in business to protect and serve, but as liars, cheats, and deceivers using any tool, constitutional or not, as a cudgel to subjugate civilians—especially civilians of color. As of mid-2021, 56% of White adults and just 27% of Black adults had “a great deal/quite a lot of confidence” in police (Jones, 2021). The Miranda decision in 1966, in response to years of overreaching by law enforcement, was crafted as a prophylactic set of rules and requirements to ensure custodial suspects, before any substantive questioning, knew and understood their rights to remain silent and be represented by counsel, and had the opportunity to invoke those rights or waive them knowingly, voluntarily, and intelligently (Miranda v. Arizona, U.S., 1966). It specifically arose from the arrest and interrogation of Ernesto Miranda, a man who had been accused of kidnapping and rape. Miranda was questioned by police officers for several hours, but never informed of his right to remain silent or his right to an attorney. He ultimately confessed to the crime. The Warren Court ruled that Miranda’s confession was inadmissible because he had not been properly informed of his rights. It was and is a matter of procedural justice (Etienne & McAdams, 2021). But in a largely unbroken line since the Warren

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Court issued this decision in 1966, the U.S. Supreme Court has tugged away at its fabric, thereby rendering it a shadow of its initial monolithic presence. As noted above, the concept has been limited by subsequent cases to coercive situations only (in Perkins), but why should that be? The Fifth Amendment right to remain silent (“no person shall be … compelled in any criminal case to be a witness against himself) (U.S. Const. amend. V) and the Sixth Amendment right to be represented by counsel (“In all criminal prosecutions, the accused shall … have the Assistance of Counsel for his defence”) (U.S. Const. amend. VI) are core constitutional rights. The requirement that they only relate to coercive situations was appended by the U.S. Supreme Court. As a result, “Miranda has not been successful in curbing psychologically coercive police interrogation because very few suspects are prepared to assert their Miranda rights, and Miranda asserts no control whatsoever over the interrogation following a waiver” (Thomas, 1979, p. 1213). But that was not the end of the Court’s efforts to strip Miranda of its vibrancy and impact (Willis, 2020). Ploys that mislead or lull a suspect into a false sense of security and that did not compel or coerce him to speak were found by the Court to be outside Miranda’s concerns; for example, in Oregon v. Mathiason, U.S., 1977, wherein officers falsely told the suspect his fingerprints were found at the crime scene. Then, falsely telling a suspect that his cousin had already confessed and had implicated the suspect in the crime to obtain the suspect’s confession was deemed constitutional by the Court in Frazier v. Cupp (U.S. 1969). Subsequent court rulings (see also cases amassed in Heyl (2014); Magid (2001); Marcus (2006); Young (1996)) held that officers could, without violating the right to remain silent: • Falsely tell the suspect his fingerprints or DNA was recovered at the crime scene and “matched.” In re D.A.S. (D.C. Cir. 1978). • Show suspect manufactured reports purporting to show their fingerprints and hair were found at the crime scene. Arthur v. Commonwealth (Va. 1997). • Show a falsified laboratory report to the suspect in a sex assault case showing the suspect had committed the crime. Sheriff, Washoe County v. Bessey (Nev. 1996). • Confront the suspect with a fake polygraph report. People v. Henry (N.Y. App. 1987). • Suggest in front of a murder suspect that the murder weapon should be found to keep a little girl from being hurt. Rhode Island v. Innis (U.S. 1980). • Tell the suspect it “would be better if he told the truth.” State v. Bailey (N.C. App. 2001). • Fail to inform the custodial suspect his sister had arranged for a defense attorney, who was at the station to speak with the suspect. Moran v. Burbine (U.S. 1986) (see Wright (1987) for a critique of Moran v. Burbine). • Falsely tell the suspect a witness had named him as the gunman. Michigan v. Mosley (U.S. 1975). • Falsely tell the suspect a witness had seen him with the rape victim. Holland v. McGinnis (seventh Cir. 1992).

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• Falsely tell the suspect a co-defendant had given a statement incriminating the suspect. Commonwealth v. Jones (Pa. 1974); State v. Galli (Utah 1998); United States v. Velasquez (3d Cir. 1989). • Falsely tell the suspect that inculpating DNA evidence and satellite images of the crime scene exist. State v. Nightingale (Maine Supreme Judicial Court 2012). • Falsely tell the suspect that there were eyewitnesses. Evans v. Dowd (eighth Cir. 1991). There are tens of thousands more reported cases and perhaps millions of progeny investigations where the police, reading the above tea leaves, deceived suspects into waiving their right to remain silent. These few are merely an illustrative subset. And the soft standard courts purport to apply is “voluntariness”; that is, the statement, admission, or confession must have been given voluntarily based on the totality of the circumstances (see Frazier v. Cupp, U.S., 1969, p. 739). Courts have interpreted that as a preternaturally open door through which all manner of deception and psychological coercion freely passes. The Supreme Court, in particular, has given wings to its value judgment: “admissions of guilt by wrongdoers, if not coerced, are inherently desirable” (United States v. Washington, U.S., 1977). Ask yourself only one question: Why do all these police officers lie to suspects? The answer: to deceive them into waiving Miranda rights and confessing. That is exactly the sort of psychological coercion and compulsion the Fifth Amendment was ratified to forbid: In general, the use of trickery and deception deprives a suspect of the ability to appreciate her rights, and hence, the significance or consequences of self-incrimination. … police should not be permitted to use trickery and deception to obtain confessions during interrogation. Although society has a compelling interest in effective law enforcement, the official use of trickery and deception constitutes an improper means of achieving that end … Under this system of justice, the police have the duty to protect the individual rights of all citizens, even those suspected of a crime. When an individual is deprived of the fundamental fairness of our system, reflected in the Fifth, Sixth, and Fourteenth Amendments, our entire system has gone awry; justice has not been done. Moreover, the use of police trickery and deception undermines public confidence in the police and the judicial system. (Roppe, 1994, pp. 768, 773)

The challenge here is to deal with the apparently teleological, greater net satisfaction, mindset shared by so many criminal justice professionals. A court (and a police officer, police chief, prosecutor, juror, and so on) may think—consciously or subconsciously—in any of the following ways while favoring majority (greater good) preferences over minority (constitutional) rights: • These are not “my” people being deceived. • My friends and peers would not be played so easily so no worries if “others” are more easily misled. • These are just desserts—suspects being misled merely got what they deserved. • If you can’t do the time, don’t do the crime. • We have to bend the rules to catch those who break the rules. • We do not want to impede effective crime fighting.

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One can scarcely imagine a contrary mindset that would allow deception to be deemed constitutional when the deception misled the “other” into waiving one or more constitutional rights. The Fifth Amendment was drafted and ratified to protect defendants and suspects, not to defend the status quo or monied interests. The Fifth Amendment commands that government officials not tread on individuals’ constitutional right to remain silent but the courts toss that right aside if the police deceit (a) is deemed a common law enforcement tactic (why should that matter?), (b) did not yield a false confession (People v. Hoyt (Cal. 2020) (but people have a right to refrain from making true confessions, too)), (c) did not overbear the will of the subject (that is not the standard in the Fifth Amendment), (d) did not manifestly change the outcome of the case (the people who decide whether unconstitutional evidence changed the outcome of the case are appellate judges who were not present at the trial or in the jury room), (e) would not have overborne the will of a reasonable person (the issue should be whether it misled this single individual), and so on.

The Right to Remain Silent, Silenced The Fifth Amendment requires, and logic and the Social Contract demand, that we honor the Fifth Amendment, not some strained construction bearing little likeness to the text or its import. “[H]opefully the Court will adopt more concrete rules about interrogation tactics … well before we reach Miranda’s 100th anniversary” (Slobogin, 2017, p. 1196). As Andrew Eichen (2020) argued, The use of deceptive techniques during interrogation and police perjury are two distinct yet related practices among American police that involve lying in their official duty. The former, while relatively unique to the United States, is permissible, sanctioned by the Supreme Court, and drilled into officers during training. The latter is illegal and supposedly condemned by our courts, yet in reality, remains a ubiquitous practice among American police; motivated by a police culture that encourages lying, and tolerated by officials at all levels of the criminal justice system. While difficult to prove, these two phenomena appear intrinsically linked, the acceptance of the former promoting the prevalence of the latter, together giving rise to a model of policing that prioritizes convictions over truth.

These are not always case-by-case or difficult decisions for many courts. In addition to the Supreme Court, virtually every state and all federal circuits have supported deceptive tactics in interrogations, sometimes enthusiastically so. For example: Federal Courts1

 Leading state supreme court cases permitting deception in interrogations are presented in the Appendix to this chapter for all fifty states. Note that the Montana Supreme Court distinguishes itself as the only state supreme court that steadfastly and repeatedly finds confessions grounded on psychological coercion and deceit to be inadmissible. 1

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Supreme Court: Frazier v. Cupp (U.S., 1969) (“The fact that the police misrepresented the statements that [his accomplice allegedly] had made is, while relevant, insufficient in our view to make this otherwise voluntary confession inadmissible”). D.C. Circuit: United States v. Muhammed (D.C.  Circuit 2012) (“although an agent lied to Mohammed that his hands tested positive for heroin, misleading a suspect during interrogation is only one factor in the totality of the circumstances analysis that governs our inquiry into voluntariness. … Just as telling a defendant, falsely, that his co-defendant had already confessed to murder is “relevant,” yet not enough to render an “otherwise voluntary confession inadmissible,” the lie here is insufficient to outweigh the rest of the evidence showing that Mohammed’s statements were voluntary). First Circuit: United States v. Byram (first Circuit 1998) (“[T]rickery is not automatically coercion. Indeed, the police commonly engage in such ruses as suggesting to a suspect that a confederate has just confessed or that police have or will secure physical evidence against the suspect”). Second Circuit: United States v. Haak (2d Circuit 2018) (“false, misleading, or intended to trick and cajole the defendant into confessing does not necessarily render the confession involuntary”). Third Circuit: Halsey v. Pfeiffer (3d Circuit 2014) (“Yet a confession is not rendered involuntary simply because the police procured it by using psychological tactics. Indeed, even the use of deception to procure a confession might not result in its exclusion from admission into evidence at the trial”). Fourth Circuit: United States v. Umaña (fourth Circuit 2014) (“The mere existence of threats, violence, implied promises, improper influence, or other coercive police activity … does not automatically render a confession involuntary”). Fifth Circuit: United States v. Gibson (fifth Circuit 2004) (“use of a small room; the length of time he was in the room; [] failure to inform him that he could leave the room to take a break, use the bathroom, or eat lunch; [officer] informing him that he had failed the test; and [officer’s] promise to make a favorable recommendation if he resolved the matter that day … do not amount to coercion sufficient to render Gibson’s confession involuntary”). Sixth Circuit: Hill v. Shoop (sixth Circuit 2021) (“[p]loys to mislead a suspect or lull him into a false sense of security that do not rise to the level of compulsion or coercion to speak are not within Miranda’s concerns”). Seventh Circuit: United States v. Kontny (seventh Circuit 2001) (“Trickery, deceit, even impersonation do not render a confession inadmissible”). In this case, the defendant, Kontny, a former corporate officer, appealed his conviction for making false statements to the Securities and Exchange Commission (SEC) during an investigation into his company’s financial statements. Kontny argued he did not intend to deceive the SEC and that his statements were not material, but the court rejected this argument holding that requiring proof of intent to deceive would make it difficult to prosecute cases under 18  U.S.C. § 1001, as it would require the government to prove the defendant’s state of mind beyond a reasonable doubt. The court also noted that the statute serves an important function in ensuring the integrity of federal

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investigations and that imposing a requirement of intent to deceive would undermine that function; thus, again, choosing what is easy and expedient versus what is right. Eighth Circuit: United States v. Boslau (eighth Circuit 2011) (“The mere fact that an officer may have elicited a confession through a variety of tactics, including claiming not to believe a suspect’s explanations, making false promises, playing on a suspect’s emotions, using his respect for his family against him, deceiving the suspect, conveying sympathy, and even using raised voices, does not render a confession involuntary”). Ninth Circuit: United States v. Crawford (ninth Circuit 2004) (“Trickery, deceit, even impersonation do not render a confession inadmissible”). Tenth Circuit: United States v. Young (tenth Circuit 2020) (“an officer’s deceptions or misrepresentations may, but do not necessarily, render a confession coerced”). Eleventh Circuit: United States v. Orr (11th Circuit 2020) (“Even if we accept Mr. Orr’s argument that the officers lied to him about the facts, misrepresentations of fact are generally not enough to render a confession involuntary”). State after state displays the same cavalier approach to interrogations grounded in officer deception. As just a single example, the Pennsylvania Supreme Court had no second thoughts about deception as a constitutional strategy in interrogations, noting “In dealing with crime, nicety of method and considerations of delicacy must often give way to necessity” (Commonwealth v. Goodwin, Pa., 1898). That court held that a confession voluntarily made, but procured by artifice, falsehood, or deception, is nonetheless admissible. That is reflective of state court holdings in virtually every state (see Appendix to this chapter for key cases in each of the 50 states). This monolithic state court approach has been largely driven by the powerful effect the U.S. Supreme Court has on state courts. Indeed, Supreme Court decisions operate as a ratchet moving the law in only one direction and making it very difficult for individual states to rule against that tide. But in a 2022 concurring opinion, New Jersey Supreme Court Justice Albin came close to calling for an end to the judicial blessing of police deception in interrogations: We have to determine whether sanctioning deception and trickery in the interrogation process offends judicial integrity and whether the cost of potentially eliciting false confessions outweighs the benefits of eliciting a number of true confessions. In this case, in an effort to secure a confession from [the defendant] that she physically abused the child in the B. home, Detective Reyes told her that surveillance cameras captured her conduct, suggesting that she was caught committing the crime. No surveillance cameras, however, were installed in the home. Justice Brandeis famously said that “[o]ur Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.” Olmstead v. United States (U.S. 1928). When deceptive interrogation tactics are sanctioned by our courts, what is the lesson conveyed to the public—that law enforcement officers can lie to a suspect, but when a suspect lies to the police, it is a crime?

The Right to Remain Silent, Silenced

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The use of lies in the interrogation process is not just an ethical concern about whether the ends justify the means. The use of lies may overbear the will of a suspect, overcome the suspect's ability to resist the psychologically coercive pressures inherent in the interrogation process, and, in some instances, elicit a false confession. … Courts have come to recognize that the use of false statements by interrogators has the capacity to overbear the will of a suspect and induce not just trustworthy confessions, but also false confessions. [and quoting State v. Cooper (Iowa 1974):] “Deception of any nature by representatives of the state cannot be condoned.” (State v. Gonzalez, N.J., 2022, pp. 344–346)

And in the face of all this Court-sanctioned deception to mislead suspects into waiving their right to remain silent, the data tell the tale: in one study, 92% of police officer respondents reported that they use deception at times (Kassin et al., 2007) and fully 29% of all convictions later exonerated via DNA evidence were due to false confessions, often resulting from officer deception (Innocence Project, n.d.). As Gross and Possley (2016) observe, “Innocent suspects confess because they are terrified and confused and exhausted; because they are deceived or tricked; because they don’t understand what they are doing; because they feel hopeless and helpless and isolated”. As the Court noted in Miranda: the modern practice of in-custody interrogation is psychologically rather than physically oriented … The officers are told by [police procedure] manuals that the ‘principal psychological factor contributing to a successful interrogation is privacy … the interrogation should take place in the investigator’s office or at least in a room of his own choice. The subject should be deprived of every psychological advantage. In his own home he may be confident, indignant, or recalcitrant. He is more keenly aware of his rights and more reluctant to tell of his indiscretions of criminal behavior within the walls of his home. … In his office, the investigator possesses all the advantages. The atmosphere suggests the invincibility of the forces of the law.’ … the manuals instruct the police to display an air of confidence in the suspect’s guilt and from outward appearance to maintain only an interest in confirming certain details. The guilt of the subject is to be posited as a fact. The interrogator should direct his comments toward the reasons why the subject committed the act, rather than court failure by asking the subject whether he did it. Like other men, perhaps the subject has had a bad family life, had an unhappy childhood, had too much to drink, had an unrequited desire for women. The officers are instructed to minimize the moral seriousness of the offense, to cast blame on the victim or on society. These tactics are designed to put the subject in a psychological state where his story is but an elaboration of what the police purport to know already—that he is guilty. Explanations to the contrary are dismissed and discouraged. … Where emotional appeals and tricks are employed to no avail, [the interrogating officer] must rely on an oppressive atmosphere of dogged persistence. He must interrogate steadily and without relent, leaving the subject no prospect of surcease. He must dominate his subject and overwhelm him with his inexorable will to obtain the truth. The interrogators sometimes are instructed to induce a confession out of trickery. The technique here is quite effective in crimes which require identification or which run in series. The manuals also contain instructions for police on how to handle the individual who refuses to discuss the matter entirely, or who asks for an attorney or relatives. The examiner is to concede him the right to remain silent. ‘This usually has a very undermining effect. … Few will persist in their initial refusal to talk, it is said, if this monologue is employed correctly.

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5  Court-Approved Police Deception in Interrogations From these representative samples of interrogation techniques, the setting prescribed by the manuals and observed in practice becomes clear. In essence, it is this: To be alone with the subject is essential to prevent distraction and to deprive him of any outside support. The aura of confidence in his guilt undermines his will to resist. He merely confirms the preconceived story the police seek to have him describe. Patience and persistence, at times relentless questioning, are employed. To obtain a confession, the interrogator must ‘patiently maneuver himself or his quarry into a position from which the desired objective may be attained.’ When normal procedures fail to produce the needed result, the police may resort to deceptive stratagems such as giving false legal advice. It is important to keep the subject off balance, for example, by trading on his insecurity about himself or his surroundings. The police then persuade, trick, or cajole him out of exercising his constitutional rights. Even without employing brutality, the ‘third degree’ or the specific stratagems described above, the very fact of custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals. (Miranda v. Arizona, U.S., 1966, pp. 445–455)

One cannot read that Miranda excerpt and be unimpressed with the tenacity, emotional coercion, and brutality law enforcement exhibits, and the courts condone, in deceiving suspects into giving up the cherished constitutional right to remain silent. What remains of the Fifth Amendment and the Social Contract when those are the interrogation methods the Court has endorsed?

We Will Be Silent No More Some states are striving to either find police deception in securing confessions is unconstitutional under state constitutions that can grant greater protections than the U.S. Supreme Court interprets the U.S. Constitution to provide (see Woodman, 1998). Others have started to restrict police deception if the police behavior is not merely unconstitutional or unethical, but violates criminal law (Johnson-Liu, 2010). Starting in 2021, a few states are legislatively precluding police deception ((Illinois was the first, followed by Oregon, Utah, California, and Delaware (Cleary, 2022)) when police interrogate juveniles. Those legislatures understood that juveniles are much more likely to be duped by police deception and are not yet fully formed, physically, emotionally, or psychologically (Ciaramella, 2021; Ferkenhoff, 2021; Kim, 2022; Polito, 2022; Queram, 2021; Spierer, 2017). New York even consider barring police deception for all suspects being interrogated (Parascandola, 2021). Some state supreme court justices have called for bans on all deceptive means for police to skirt Miranda—juveniles and adults (see Dolan, 2019). And there has been some shift away from police using the Reid interrogation technique, often panned for using deception and yielding false confessions (Hager, 2021; Kozinski, 2018). Several countries already ban lying to police suspects (Gandhi, 2021). But the Supreme Court is mired in a confusing totality of the circumstances approach to police deceptions in interrogations, thereby rendering facially involuntary and coerced confessions constitutional and admissible.

Discussion Questions

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The question is, when will the U.S. Supreme Court enforce the People’s rights and protections from such official conduct? At a minimum, the Supreme Court could preclude police deception before Miranda rights are read, understood, and waived (Mosteller, 2007). But imagine a young or challenged or frightened or confused suspect, perhaps one for whom English is a second language. When criminal justice professionals use deception and coercion during investigations, they not only violate the Social Contract and the Fifth Amendment, they incrementally erode public trust in the entire justice system, undermining the legitimacy of the government’s authority and weakening the public’s willingness to abide by the law (Cook, 2015). And when suspects are coerced into confessing through deceptive tactics, innocent individuals can be convicted and punished for crimes they did not commit, undermining the basic principle of justice. Even the Supreme Court has recognized a large number of false confessions and noted “[c]ustodial police interrogation, by its very nature, isolates and pressures the individual and there is mounting evidence that these pressures can induce a frighteningly high percentage of people to confess to crimes they never committed” (Corley v. United States, U.S., 2009, pp. 320–321). Lest we forget, police deception can create an adversarial relationship between law enforcement and the community they serve, leading to a breakdown in communication and cooperation between the police and the public they purportedly serve, making it more difficult for law enforcement to effectively prevent and solve crimes (Etienne & McAdams, 2021; Leovy, 2015). Which is the reason they police in the first place.

Discussion Questions 1. How did the Miranda decision establish guidelines for police officers when questioning suspects in custody? 2. What are some of the subsequent Supreme Court decisions that have eroded the protections established by the Miranda decision? 3. What are some of the implications of the erosion of Miranda protections for the criminal justice system and for individual rights? 4. How does police deception during investigations impact public trust in law enforcement and the justice system, and what are the consequences of this erosion of trust for the Social Contract? 5. What role do prosecutors and judges play in ensuring that evidence obtained through deceptive tactics is not admitted in court, and how effective are these safeguards in protecting individual rights?

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Appendix: Police Deception and Interrogations State Court Decisions Permitting Deception in Interrogations State supreme court decisions on point when available. Internal citations and internal quote marks omitted—Courts’ words quoted below: Alabama:   Ex parte Jackson, 836 So. 2d 979, 983 (Ala. 2002) (“subtle forms of psychological manipulation, such as trickery or deception by the police, have not been considered sufficiently coercive, standing alone, to render a confession or incriminating statement involuntary”—18-year-old capital murder defendant). Alaska:   Sovalik v. State, 612 P.2d 1003, 1007 (Alaska 1980) (defendant “was told, untruthfully, that his fingerprint had been found on a bottle at the scene of the crime, but this artifice was not coercive and is not one which would have a tendency to produce an untruthful confession”—19-year-old murder defendant of “low average” or “borderline” intelligence). Arizona:   State v. Tapia, 767 P.2d 5, 10 (Ariz. 1988) (“A statement induced by fraud or trickery [filling out a First Degree Murder booking slip to scare him into confessing] is not made involuntary unless there is evidence that the defendant’s will was overborne or that the confession was false or unreliable”—eighteen-year-­ old defendant with less than eighth grade education and limited English proficiency). Arkansas:   Gardner v. State, 569 S.W.2d 74, 82 (Ark. 1978) (“We are not aware of any constitutional prohibition against an interrogator trying to persuade an accused to tell the truth or to answer questions so long as … no coercion or promise of leniency or reward for answering questions or making a statement, even though there may be misrepresentations of fact made by the interrogator, so long as the means employed are not calculated to procure an untrue statement and the confession is otherwise freely and voluntarily made with an understanding by the accused of his constitutional rights”—interrogator had falsely told 18-year-old Rape defendant he could withdraw his confession after he retained counsel). California:   People v. Smith, 150 P.3d 1224, 1241–1242 (Cal. 2007), cert. Denied, 128 S. Ct. 488 (2007, October 29) (The officers administered a sham gunshot residue test to the defendant. “After the test was given, and defendant had been [falsely] told that the result was positive for gunshot residue, defendant recanted the portion of his statement implicating the two unarmed men.” The California Supreme Court in this case also noted other California cases where deception did not require suppression: “Police deception does not necessarily invalidate an incriminating statement. Courts have repeatedly found proper interrogation tactics far more intimidating and deceptive than those employed in this case. [such as where’ officer falsely told the suspect his accomplice had been captured and confessed, or officer implied he could prove more than he actually could, or officers repeatedly lied, insisting they had evidence linking the suspect to a homicide, or wounded suspect told he might die before he reached the hospital, so he should talk while he still had the chance, or officer told suspect his fingerprints had been found on the getaway car, although no prints had been obtained, or suspect falsely told he had been identified by an eyewit-

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ness, or police falsely told suspect a gun residue test produced a positive result”— Capital First Degree Murder defendant with an extensive history of juvenile psychiatric hospitalization starting at nine years old). Colorado:   Osborn v. People, 262 P. 892, 902 (Colo. 1927) (“the use of a trick or fraud (however reprehensible in itself) does not of itself exclude a confession obtained by means of it. Thus, a false statement that an accomplice had confessed, or had implicated the accused, is not sufficient to exclude a confession.”). Connecticut:   State v. Griffin, 262 A.3d 44, 72 (Conn. 2021) (“[Detectives] falsely claimed that two eyewitnesses to the murder had identified the defendant as the shooter, that fingerprints were found on the shell casings left at the scene of the shooting, and that Wright had given a statement that incriminated the defendant…. Such statements by the police designed to lead a suspect to believe that the case against him is strong are common investigative techniques and would rarely, if ever, be sufficient to overbear the defendant’s will and to bring about a confession to a serious crime that is not freely self-determined”—21-year-old Murder and Robbery defendant). Delaware:   Baynard v. State, 518 A.2d 682, 691 (Del. 1986) (“We do not find Detective Hudson’s untruth—that defendant’s fingerprints had been discovered on the water jug—to constitute sufficient trickery to overcome the defendant’s will.”—31-year-old murder defendant). Florida: Johnson v. State, 903 So. 2d 888, 898 (Fla. 2011) (“Johnson alleges that he was deceived when he was told during his questioning that [a co-suspect] was in the police station providing information. Johnson alleges that [the co-suspect] did not make a statement until after Johnson himself made a statement. Even if Johnson’s allegations are taken as true, this Court and the United States Supreme Court have held that police officers are permitted to deceive suspects regarding the evidence they have against them.”). Georgia:   Matthews v. State, 858  S.E.2d 718, 727 (Ga. 2021) (“[A]lthough the investigator lied about the [DNA and eyewitness] evidence, he did nothing to suggest that a confession would not be used against Matthews…. [U]nder the totality of the circumstances, Matthews’s statement was voluntary as a matter of constitutional due process.”). Hawaii: State v. Kelekolio, 849 P.2d 58, 73–74 (1993) (“Because Detective[]'s deliberate misrepresentations to Kelekolio [about purported evidence of sex assault and victim bruises] were intrinsic to the facts of the present offenses and because we determine from the totality of the circumstances surrounding Kelekolio’s audiotaped statement, based on our review of the entire record, that the misrepresentations were not of a type that would reasonably induce a false confession, we hold that Detective Kim’s use of deception did not render Kelekolio’s inculpatory statements involuntary.”). Idaho: State v. Schumacher, 37 P.3d 6, 13–14 (Ida. Ct. App. 2001) (“Although we agree that Agent Richard’s statement falsely implied that the police already were in possession of a search warrant, we do not agree … that this police tactic was impermissible or coercive in the context of an interrogation aimed at eliciting an incriminatory statement. Within limits, deceit and subterfuge are within the “bag of tricks” that police may use in interrogating suspects.”).

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Illinois: People v. Melock, 599  N.E.2d 941, 951, 953 (Ill. 1992) (The polygraph examiner falsely “told defendant that he had not passed the polygraph examination [and] contrary to the trial court’s finding, we believe that [the polygraph examiner’s] statements were deceptively designed to procure defendant’s confession. While we hasten to express our distaste for the deceptive practices employed in this case, we find that [the polygraph examiner’s] conduct, in and of itself, was not so heavily laden with trickery so as to render defendant’s statement untrustworthy.” - 22-year-­ old defendant with 83 full-scale IQ or “dull normal”). Indiana: Pierce v. State, 761 N.E.2d 821, 824 (Ind. 2002) (“[P]olice deception, in this case the false claim of a DNA match, weighs against voluntariness. But that factor is not dispositive … the totality of the circumstances did not vitiate Pierce’s waiver of rights or render his confession involuntary.”). Iowa: State v. Hofer, 28 N.W.2d 475, 479 (Iowa 1947) (“Even the use of artifice, fraud or deception to obtain a confession does not render it inadmissible if the means employed are not calculated to procure an untrue statement.”). Kansas: State v. Swanigan, 106 P.3d 39, 50 (Kan. 2005) (“[Salina Police Officer, asked why she falsely told Swanigan his fingerprints had been recovered from the crime scene, testified] ‘So he would give me an admission.’ [] Salina police were free to lie about evidence that fingerprints were found at the Kwik Shop and confirmed to be Swanigan’s.”). Kentucky:   Springer v. Commonwealth, 998 S.W.2d 439, 447 (Ky. 1999), as modified (May 3, 1999) (“the mere employment of a ruse, or ‘strategic deception,’ does not render a confession involuntary so long as the ploy does not rise to the level of compulsion or coercion. More specifically, a misrepresentation by interrogators of the strength of their case [using unrelated recordings of phone calls from suspect’s home to imply the home was under constant surveillance] against the suspect does not render an otherwise voluntary confession inadmissible.”). Louisiana:   State v. Holmes, 5 So. 3d 42, 73 (La. 2008) (“even assuming that Ward and Ivey knowingly lied when they insisted that they had evidence placing the defendant’s brother inside the Brandons’ residence, such interrogation techniques have been consistently upheld…. mere ‘trickery’ alone will not necessarily invalidate a confession.”——murder defendant with fetal alcohol sequelae). Maine: State v. Nightingale, 58 A.3d 1057, 1061, 1070 (Me. 2012). “[Interrogators] suggested to Nightingale that they potentially had satellite photography of his car at the Millers’ home; had DNA test results showing that Nightingale’s DNA was on a doorknob and a locking mechanism at the Millers’ home, which was significant because it appeared that the last person out had locked the door; had found flakes of Nightingale’s skin on the Millers’ bodies; and had recovered fingerprint or DNA evidence on money that the detectives told Nightingale they had seized from his father. These were ‘realistic bluffs’ and untrue…. [Nevertheless,] the State proved beyond a reasonable doubt that Nightingale’s post-warning statements were voluntary in light of the totality of the circumstances.”). Maryland:   Madrid v. State, 239 A.3d 770, 788 (Md. App. 2020), aff’d, 254 A.3d 468 (Md. 2021) (“Maryland courts have recognized that lying to the suspect and

Appendix: Police Deception and Interrogations

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feigning sympathy are not off limits to interrogating officers.”—16-year-old murder defendant). Massachusetts: Commonwealth v. Hammond, 78 N.E.3d 1128, 1134–35 (Mass. 2017) (“The detectives falsely claimed that Arthur had said the defendant “propositioned” him on one occasion [and the rapes had been forceful]…. To the extent that these misstatements in the interview could be described as false and deceptive, we conclude that the defendant’s will was not overborne.”). Michigan:   People v. Utter, 185  N.W. 830, 832 (Mich. 1921) (“The fact that a confession was procured by the employment of falsehood by a police officer, detective, or other person does not alone exclude it; nor does the employment of any artifice, deception, or fraud exclude it, if the artifice or fraud employed was not calculated to procure an untrue statement.”). Minnesota:   State v. Thaggard, 527 N.W.2d 804, 806 (Minn. 1995) (“[The interrogator admitted that during the interrogation, he had] “lied to defendant, telling him that a co-suspect] had confessed to participating in the rape of [the victim]…. [L]ying to a suspect as to the strength of the state’s case against him generally is not by itself enough to render a confession involuntary.”). Mississippi:   Howell v. State, 989 So. 2d 372, 385 (Miss. 2008) (“Even if the police did attempt to trick Ray by claiming that Howell was cooperating with law enforcement officials, this fact alone would not entitle Howell to any relief. There is no requirement that law enforcement officials be absolutely honest when interrogating a suspect. Ploys to mislead a suspect or lull him into a false sense of security are permissible during police questioning, as long as they do not rise to the level of compulsion or coercion.”—capital murder defendant). Missouri:   State v. Faruqi, 344 S.W.3d 193, 204 (Mo. 2011) (“Statements obtained by subterfuge on the part of police are admissible unless the deception offends societal notions of fairness or is likely to produce an untrustworthy confession. [T]rickery does not necessarily render statements involuntary, and therefore, inadmissible.”). Montana:   State v. Eskew, 390 P.3d 129, 134 (Mont. 2017). (“A confession may not be induced by threats or violence, promises, or lies and deception by the interrogator. Lying to the suspect about what law enforcement knows about her involvement in the crime is particularly repulsive to and totally incompatible with the concept of due process. We recently emphasized that [w]e will not condone the use of deception to obtain a confession.”). Nebraska:   State v. Oldson, 884 N.W.2d 10, 60 (Neb. 2016) (“[W]e have said that police practices of deception during interrogation are not inherently offensive…. We have rejected in several cases the assertion that police imposition of psychological pressure rendered a defendant’s confession involuntary under the circumstances presented.”). Nevada:   Carroll v. State, 371 P.3d 1023, 1031 (Nev. 2016) (“Deception by police does not automatically render a confession involuntary. Police subterfuge is permissible if the methods used are not of a type reasonably likely to procure an untrue statement…. In looking at the totality of the circumstances…, we conclude that the

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police did not coerce Carroll’s statement…. The use of falsehoods during the interrogation also does not show police overcame Carroll’s will.”). New Hampshire: State v. Cloutier, 110 A.3d 10, 17 (N.H. 2015) (“Even assuming the officers misled the defendant regarding the polygraph results, the police are not prohibited from misleading a suspect.”). New Jersey:   State v. Cooper, 700 A.2d 306, 320 (N.J. 1997) (“Although misrepresentations by police officers to the subject of an interrogation are relevant in analyzing the totality of the circumstances, misrepresentations alone are usually insufficient to justify a determination of involuntariness or lack of knowledge. Moreover, a misrepresentation by police does not render a confession or waiver involuntary unless the misrepresentation actually induced the confession.”). New Mexico:   State v. Evans, 210 P.3d 216, 226 (N.M. 2009). (“Our case law makes clear that deception is not coercive per se. [D]eception, in itself, is not a basis for ruling, as a matter of law, that a confession should be suppressed. The degree of deception is but one factor to consider in deciding whether a confession was given contrary to the accused’s free will.”). New York:   People v. Boone, 239  N.E.2d 885, 888 (N.Y. 1968) (“[Prosecutors admit] that [co-defendant] Brandon was falsely told that Boone had confessed and had accused Brandon of being the killer. But, deception alone, in the absence of any threat or promise of immunity, is not enough to render a confession involuntary.”). North Carolina: State v. Chapman, 471 S.E.2d 354, 357 (N.C. 1996) (“The deceit practiced by [the detective, including false claims the defendant’s handwriting matched the note found next to the body and that defendant’s fingerprints were on the note] did not require the court to find that the confession was not of the defendant’s own free will, that it was the product of fear or hope of reward, or that the deceit was calculated to produce an untrue statement.”). North Dakota:  State v. Kirkpatrick, 822 N.W.2d 851, 855 (N.D. 2012) ([Where] the police lied about [the accomplice] incriminating Kirkpatrick. .., the record supports the trial court’s conclusion the confession was voluntary.”). Ohio: State v. Burke, 653 N.E.2d 242, 248–49 (Ohio 1998). (“While police made some false statements to appellant during the interrogation, this does not necessarily make his statements involuntary. In fact, we find that despite these misrepresentations, defendant’s will to resist was not overborne by threats or improper inducements.”). Oklahoma:   Pierce v. State, 878 P.2d 369, 372 (Okl. 1994). (“Appellant cites no authority for the position that she has a right not to be lied to, and, on cross-­ examination, the officers in question admitted not only that they lied to Appellant but they were trained to do so.”). Oregon:   State v. Chavez-Meza, 456 P.3d 322, 332–333 (Ore. App. 2019) (“[Interrogator, inaccurately stating the law, told defendant] that if defendant believed that [sexual assault victim] was not 12 and was 18, it would be less serious…. The detective’s [] statement, however, could not be accurate and was deceptive. Because the victim was 12 years old, it would not have been a defense to rape, sodomy, or sexual abuse if defendant had believed that she was 18…. [U]nder the totality of the circumstances, defendant’s statements were voluntary and not a product of police coercion.”).

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Pennsylvania: Commonwealth v. Jones, 322 A.2d 119, 126 (Pa. 1974) (“We agree with appellant that there is substantial basis on this record justifying the conclusion that the interrogating officers may have deceived appellant into believing that a co-defendant had implicated him where such was not the case. In judging whether the use of artifice, deception or fraud will invalidate a confession, we must look to the basic rationale behind the exclusion of coerced confessions. Courts will, of course, invalidate confessions resulting from a subterfuge that is likely to produce an untrustworthy confession…. It also turns on the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves…. Thus, where the subterfuge is so reprehensible as to offend basic societal notions of fairness, the confession obtained therefrom should be excluded…. In the case at bar we are not convinced that the alleged fabrication concerning the co-defendant’s confession was likely to cause an untrustworthy confession. Nor do we find it so reprehensible as to invalidate the confession as offensive to basic notions of fairness.”). Rhode Island: State v. Marini, 638 A.2d 507, 513 (R.I. 1994) (“law enforcement officers may inform a suspect, truthfully or otherwise, of the evidence against him.”). South Carolina: State v. Register, 476 S.E.2d 153, 158 (S.C. 1996) (“[T]his Court and the United States Supreme Court have held that misrepresentations of evidence by police, although a relevant factor, do not render an otherwise voluntary confession inadmissible…. Furthermore, a defendant’s will is not overborne when police misrepresent the facts leading him to believe that information of his guilt is greater than it actually is…. Although police tactics may influence the suspect’s decision to confess, as long as the decision results from the suspect’s balancing of competing interests, the confession is voluntary…. Although the misrepresentation of evidence by police is a deplorable practice, the circumstances in this case do not reveal that Register’s will was overborne by police so as to render his confession involuntary.”). South Dakota: State v. Two Hearts, 925 N.W.2d 503, 516–18 (S.D. 2019) (“It is undisputed that the detectives offered Two Hearts leniency as a strategy to encourage his cooperation…. Two Hearts also contends that the detectives impermissibly lied about finding DNA evidence at Sooper Stop, which they stated was deposited when he touched the counter with his hands. The State submits that the use of the false statement was a permitted psychological tactic…. Akin to the offers of leniency made during the interviews, there is no evidence that this misrepresentation resulted in Two Hearts’s confession or “deprived [him] of his ability to make an unrestrained, autonomous decision to confess. [Nonetheless,] Defendant’s statements … were voluntary, knowing, and intelligent.”). Tennessee:   State v. Sanders, 452 S.W.3d 300, 312 (Tenn. 2014) (“The circumstances in this case fall squarely in the line of federal and state cases in which a suspect has misplaced his or her trust in an accomplice or other confidant who is or who will be cooperating with law enforcement. We have observed that the Fifth Amendment and Article I, Section 9 forbid official coercion, not mere strategic deception. These constitutional provisions are not concerned with moral or psychological pressures to confess emanating from sources other than official coercion.”).

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Texas: Weaver v. State, 265 S.W.3d 523, 535 (Tex. App. 2008) (“Officers’ misrepresentations that witnesses, fingerprints, and video linked appellant to the crime merely related to his connection to the crime and were not the type of deception that likely causes an involuntary confession.”). Utah: State v. Montero, 191 P.3d 828, 832–33 (Utah App. 2008) (“We also see no problem with Detective Adamson’s indication that “only about … 8 people” were outside in the area when the shooting took place, his suggestion that some of the witnesses had identified Montero as the shooter, his assertion that witnesses placed the shooter in the back seat of a red SUV, or his claims that police would likely obtain compelling physical evidence connecting Montero to the crime…. A ­defendant’s will is not overborne simply because he is led to believe that the government’s knowledge of his guilt is greater than it actually is....”). Vermont:   State v. Lambert, 255 A.3d 747, 762 (Vt. 2021) (“while the detective lied about the man in the red truck seeing defendant walk into the woods, lies about incriminating evidence, taken alone, are not enough to make any resulting confession involuntary.”). Virginia:   Swann v. Commonwealth, 441 S.E.2d 195, 202 (Va. 1994) (“Swann also claims that his confession was inadmissible because it was obtained as a result of [a detective] describing the development of the ‘Retinal Image Machine’ [that purportedly would reflect the last image a dead person had seen]. However, a police officer’s misrepresentation during interrogation will not invalidate a confession unless it causes a suspect to make a confession he otherwise would have withheld.”—murder defendant diagnosed with schizophrenia). Washington:   State v. Braun, 509 P.2d 742, 745 (Wash. 1973) (“While we do not condone deception, that alone does not make a confession inadmissible as a matter of law…. The test of voluntariness is whether the behavior of the State’s law enforcement officials was such as to overbear petitioner’s will to resist and bring about confessions not freely self-determined—a question to be answered with complete disregard of whether or not petitioner in fact spoke the truth.”). West Virginia: State v. Farley, 452  S.E.2d 50, 60 (W.  Va. 1994) (“Even if we assumed that the results of the polygraph were misrepresented to the defendant, this misrepresentation standing alone would be insufficient to render the confession involuntary…. misrepresentations made by police do not automatically render a confession inadmissible.”). Wisconsin:   State v. Vice, 961 N.W.2d 1, 15 (Wis. 2021) (“it is settled law that police may engage in active deception, including lying to a suspect, without rendering that suspect’s statements involuntary. [U]sing deception in interrogation is common and generally acceptable.”). Wyoming:   Snyder v. State, 496 P.3d 1239, 1250 (Wyo. 2021) (“The use of misstatements or tricks in and of themselves [in this case, falsely stating DNA evidence and fingerprints on the knife were the defendant’s] does not render a confession or admission involuntary.”—murder defendant with significant mental illness history including delusional symptoms and was seen talking to his glove shortly before his arrest).

Chapter 6

Fourth Amendment Erosion and Novel Crime-Fighting Technologies

Summary • The Fourth Amendment of the United States Constitution protects individuals from unreasonable searches and seizures by the government. • Despite the rapid evolution of technology, the legal system and laws often struggle to keep up with the pace of change. • When decisions are delayed, it not only denies victims of police misconduct the justice they deserve, but also allows that misconduct to continue, further undermining Fourth Amendment protections. • The Supreme Court’s handling of modern crime-fighting technologies, from drone and GPS surveillance to cell phone tracking to facial recognition is eroding the meaning and protections of the Fourth Amendment. • The Supreme Court has often upheld the use of modern crime-fighting technologies even in cases where they arguably violate the Fourth Amendment. • Ferguson’s Tyrant Test is one of many possible solutions to the rise of Big Data Policing. Police, “engaged in the often competitive enterprise of ferreting out crime” (Johnson v. United States (U.S. 1948)), might be readily expected to turn to each new technology to help them catch and prosecute criminals. And they do. But in the digital age, when technologies explode at a hare’s pace and courts interpreting and Congress legislating police use of those technologies trail far behind at a tortoise’s pace (MacLean, 2014), there is much room, before and after the courts and Congress catch up, for unconstitutional intrusion into privacy rights protected by the Fourth Amendment in the Social Contract. That is awful but lawful.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 C. E. MacLean, J. A. Densley, Police, Prosecutors, Courts, and the Constitution, https://doi.org/10.1007/978-3-031-39082-1_6

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“[S]ocial contract theory reminds us of the ethical danger of the state unilaterally removing rights from its citizens” (Ghoshray, 2013, p.  599). In theory, the “U.S. Supreme Court and Congress must provide individuals with greater protection against novel surveillance techniques” (Bard, 2016, p.  733). In practice, the slow response of Congress and the courts to novel surveillance techniques and the courts’ hands-off view toward many Fourth Amendment violations today have yielded a sort of police hubris leaving in its wake uneven justice on civilians based, too often, on race (Carbado, 2017; Manes, 2019, p. 506). A thorough review of the Fourth Amendment, its reasonableness clause, and the slippery slope of their erosion since the Framing Era and especially since the 1960s is required to understand the constitutionality of novel crime-fighting technologies in the digital age.

The Tortoises and the Hare When assessing our society’s response to novel crime-fighting technologies, we must recognize that legislatures and more especially courts are very slow to respond to changing circumstances. Much of that deliberate pacing, arising out of the pre-­ digital era, is wise and intentional so that the courts, common law, and statutory law are stepwise, incremental, and deliberate allowing people and enterprises to predict and plan based on exactly what the law requires by looking back at written codes and precedent to see how the law has been specified, applied, and interpreted in the past. But in the digital era, when technological advancements can happen overnight, that can be problematic when courts and Congress continue at a tortoise’s pace. Courts, in a sense, must wait for litigants to bring issues to them for resolution, since the Constitution requires that courts only decide justiciable and particular “cases and controversies” (U.S. Const. art. III, § 2), that is, cases brought by plaintiffs who allege they have suffered particular past harm, not possible future harm. The cases and controversies requirement prevents courts from issuing prospective and declaratory judgments—the power to prospectively enact laws for the future rests with legislatures—in the federal sphere, with Congress. Congress is free to act prospectively but is a rather unwieldy bicameral maelstrom of political considerations that in the early 2000s has by many accounts become rather dysfunctional. In a practical sense, in the modern era with all its complexities, much prospective decision-making has been delegated to federal agencies that promulgate rules after public notice and comment rulemaking procedures. The result of this tortoise pace in the digital age is a woefully slow governmental response to novel crime-fighting techniques and a drastic diminution of the power of the Fourth Amendment to protect individuals from technological overreaching by law enforcement. As a consequence, “Surveillance technology has raced ahead of the Fourth Amendment, forcing courts to confront high-tech intrusions with rusty jurisprudence” (Bard, 2016, p. 731). And “legal institutions have struggled to understand – let alone set limits on – new investigative methods and techniques … augmenting

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police power while remaining free of meaningful oversight” (Bloch-Wehba, 2021, p. 917). “[L]aw’s inability to catch up with technology’s explosion [and the concomitant] [l]oss of privacy … impacts freedom of expression, which impacts both ingenuity and the democratic process” (Ghoshray, 2013, p. 599). In a word, “old laws, drafted in a particular historical and technological context, tend to be a poor fit with new technologies whose capabilities and operation simply could not have been envisioned by earlier legislators” (Manes, 2019, p. 530). The manifestation of the mismatch between tortoises and hare is clear: It seems inconceivable that the Founders, who could fairly be described as obsessed with Americans’ right to be let alone, could have envisioned, let alone endorsed, the degree and depth of intrusion into individuals’ lives that is enabled by present-day surveillance technologies… . New technologies have changed the landscape of policing and surveillance. What once took significant manpower can now be accomplished at the click of a button… . At the same time, these developments can enable surveillance of a depth, and with an ease, that was simply unimaginable even twenty years ago. There is a growing judicial consensus that this state of affairs profoundly implicates the Fourth Amendment protections that are fundamental to Americans’ individual rights, including the right to some modicum of privacy and the right to associate, to speak, and to protest. (Levinson-Waldman, 2017, pp. 528, 614)

We must all demand and courts must deliver Fourth Amendment protections that honor its roots and “traditional heuristics …, including its text, purpose, and practical function as a shield against oppressive police action” (Lvovsky, 2018, p. 1237). When courts and Congress fail to respond swiftly to novel police technologies, we compromise our personal privacy, the Social Contract, and the Constitution, and thereby ignore Justice Louis Brandeis’s vision nearly a century ago: “The progress of science in furnishing the Government with means of espionage is not likely to stop with wiretapping. Ways may someday be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions… . Can it be that the Constitution affords no protection against such invasions of individual security?” Olmstead v. United States (U.S. 1928, p. 474) (Brandeis, J., dissenting). A few examples set the scene for the tortoise courts responding belatedly to novel crime-fighting technologies. In the cell phone era, calls are not delayed for seconds or minutes while the incoming call searches for the location of the called cell phone. Instead, activated cell phones are constantly connected to the closest cell phone towers that triangulate the cell phones’ precise locations in virtually real time. Driven by administrative needs and the low cost of digitally storing huge quantities of data, cell phone service providers and cell tower service providers store those second-by-second real-time cell phone locations for an extended period. Given that many cell phone owners carry their cell phone with them at all times, those cell phone location data provide second-by-second data for the precise location of the person and not just the person’s cell phone. That treasure trove of real-time historical cell site data became quite an attractive target for law enforcement officers investigating site-­ specific crimes.

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In 2011, for example, federal officers began investigating a series of robberies at Radio Shack and (yes) T-Mobile business locations over a period of months. As evidence was developed, a ringleader was tentatively identified. Investigators obtained an administrative subpoena requiring the purported ringleader’s cell service provider to produce the location of that suspect’s cell phone at the precise times and locations of the robberies they were investigating. Administrative subpoenas are issued by prosecutors (not neutral magistrates) and on evidence far less than probable cause that would be required to obtain a search warrant. The historical cell site location data indicated that the purported ringleader was in the immediate area of virtually all of the robberies when they occurred, so he was arrested and charged. Although the records were obtained with the subpoenas in 2011, the U.S. Supreme Court did not decide the case until June 22, 2018, some seven years later (Carpenter v. United States (U.S. 2018)). In that decision, the Court decided by a 5:4 margin that Carpenter had a reasonable expectation of privacy in those historical cell site location data and thus, absent exigent circumstances, a search warrant was required under the Fourth Amendment. Imagine how many other historical cell site location data were obtained via subpoena and not search warrant during the seven years between the Carpenter investigation and when the U.S. Supreme Court finally decided the case. The United States Supreme Court held 5:4 in Kyllo v. United States, 533 U.S. 27 (2001) that thermal imaging of a residence to detect heat signatures typical of marijuana grow operations was unconstitutional as a violation of Kyllo’s Fourth Amendment reasonable expectation of privacy in his home. The Kyllo investigation occurred in 1991 and the Supreme Court did not decide the case until 2001, a ten-­ year wait for justice (see also Slobogin, 2002). Officers soon discovered that with nearly costless and limitless storage of immense video files available to them, they could mount video cameras in public places—with apparent impunity in some cases. When officers aimed three telephone pole-mounted video cameras at Tuggle’s residence for nearly 18 months, the federal Seventh Circuit Court of Appeals determined that was not a search at all (United States v. Tuggle (Seventh Circuit 2021) (an eight-year wait for justice, 2013–2021)). As the court in Tuggle envisioned: One day, in a not-so-distant future, millions of Americans may well wake up in a smart-­ home-­dotted nation. As they walk out their front doors, cameras installed on nearby doorbells, vehicles, and municipal traffic lights will sense and record their movements, documenting their departure times, catching glimpses of their phone screens, and taking note of the people that accompany them. These future Americans will traverse their communities under the perpetual gaze of cameras. Camera-studded streets, highways, and transit networks will generate precise information about each vehicle and its passengers, for example, recording peoples’ everyday routes and deviations therefrom. Upon arrival at their workplaces, schools, and appointments, cameras on buildings will observe their attire and belongings while body cameras donned on the vests of police and security officers will record snippets of face-to-face or phone conversations. That same network of cameras will continue to capture Americans from many angles as they run errands and rendezvous to various social gatherings. By the end of the day, millions of unblinking eyes will have discerned Americans’ occupations and daily routines, the people and groups with whom they associate, the businesses they frequent, their recreational activities, and much more. United States v. Tuggle (Seventh Circuit 2021, pp. 1–2)

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That was a prescient if slightly fatalistic forecast considering that we still have time to act to preserve some privacy in the digital age. Indeed, a state supreme court acted shortly after the Tuggle decision was issued, and after nearly as long a wait for justice, found a similar but far shorter (3 months) investigative use of a single pole-­ mounted video surveillance camera without a warrant an unconstitutional search (People v. Tafoya (Colo. 2021) (en banc) (a six-year wait for justice, 2015–2021)). Warrantless GPS tracking of a vehicle was assessed in United States v. Jones, 565 U.S. 400 (2012). The U.S. Supreme Court found that such tracking 24 hours per day for 4 weeks was violated Jones’s reasonable expectation of privacy under the Fourth Amendment or was a trespass—the justices split on the rationale—the investigation began in 2004 and the Court finally decided the matter in 2012—an eightyear wait for justice).

 atalistic Attitudes Toward Technology Loss of Privacy F in the Digital Age “About six-in-ten Americans believe it is not possible to go through daily life without having their data collected by companies (62%) or the government (63%)” (Auxier & Rainie, 2019). Indeed, “people with higher levels of fatalistic belief about technologies and business are less likely to protect their privacy on the Internet in general, and [social networking sites] in particular. Moreover, such relationship is stronger among young Internet users compared with older users” (Xie et  al., 2019, p. 1). As the Internet generation ages, they might be expected to retain that fatalistic attitude toward online privacy and freedom from novel police technologies engaged in surveillance. Further, as novel crime-fighting technologies explode in distribution and capabilities, they amplify the ability (and impunity) of officers to deceive civilians. After all, most of that technology is secret or secretive and the “combination of wide discretion and sophisticated technology may lead to tactics that raise further ethical questions” (Joh, 2015). Those “new technologies have enabled investigative deceit to become more powerful and pervasive … easy and cheap. …[this] technology has made deceptive policing easier and more pervasive than traditional means ever did. … These changes are troubling because they erode already weak doctrinal safeguards against police deception” (Joh, 2015). Consider how “just” such technology-­ enabled tactics feel when detectives posing as lawyers mail a suspect a request to join a non-existent class action so they could extract the suspect’s DNA from the licked adhesive on the envelope the subject mailed back to the putative lawyers (the investigators). State v. Athan (Washington Supreme Court 2007). One can only imagine the depth and breadth of officer deceit enabled by novel crime-fighting technologies unmoored by a rudderless Fourth Amendment in the digital age. As Ghoshray (2013, pp. 591) observes, “[O]nce surveillance drones are allowed as a preventive law enforcement mechanism, or for surveillance, our existing

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conceptions of fundamental liberty will be instantly incinerated [in] an era of unwarranted intrusion into private lives—the very apprehension that prompted the Framers to conceptualize the Fourth Amendment as a bulwark against such excessive and unwarranted intrusion into individual’s private space.” Awful but lawful—so far.

The Framers’ Fourth Amendment Foundations University of Tennessee College of Law professor Thomas Y. Davies published a blistering set of essays between 1991 and 2010 (Davies, 1991; 1999, 2002, 2007, 2010a, b, c) based on exhaustive research of the original framing-era documents that illuminated the Fourth Amendment’s true meaning and import and debunked false constitutional histories negligently or intentionally parroted by constitutional commentators and courts, including the U.S. Supreme Court. In brief, Professor Davies found that the Framers, fearing general warrants, interposed the Fourth Amendment as a shield—against general warrants: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV. Those 54 words have fueled limitless appellate decisions, scholarly works, and confusion. But Professor Davies has sifted the wheat from the chaff by noting: the Framers did not perceive the problem of search and seizure authority in the same way we now do. In fact, they reveal that the Framers did not even use the term “unreasonable searches and seizures” the way we do. … the Framers understood “unreasonable searches and seizures” simply as a pejorative label for the inherent illegality of any searches or seizures that might be made under general warrants. In other words, the Framers did not address warrantless intrusions at all in the Fourth Amendment or in the earlier state provisions; thus, they never anticipated that “unreasonable” might be read as a standard for warrantless intrusions. (Davies, 1999, p. 551)

Davies found from the original records that the Framers had no fear of warrantless intrusions by officers of their day simply because those officers were seen as minor operatives without “any significant discretionary authority at common law to initiate arrests or searches” (Davies, 1999, p. 578), thus any trespass on their part could be remedied by civil action against the officer as that action would not have been seen as a government action. Thus, “it is wholly implausible that the Framers would have approved of broad use of warrantless intrusions, because such intrusions would necessarily have rested solely on the officers’ own judgment” (Davies, 1999, p. 582). As a result, “framing-era doctrine provided a much stronger notion of a ‘right to be secure’ in person and house than does modern doctrine. The trajectory of doctrinal evolution has been away from a sense of the individual’s right to be secure from government intrusions and toward an ever-enlarging notion of

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government authority to intrude … we accord far greater authority to the officer than the Framers intended or anticipated” (Davies, 1999, pp. 749–750). And finally, faithful assessment of the documentary evidence from the Framing Era also reflects that the Framers and early judges both recognized exclusion as a proper and Framer-­ intended remedy for Fourth Amendment violations: “Having sifted through reams of antebellum documents, … exclusion was not only considered by the Fourth Amendment’s Framers, but that exclusion was almost certainly among the remedies for Fourth Amendment violations intended by the Amendment’s Framers in 1791. In contrast to the claims of modern anti-exclusion scholars, … almost everything in the text, history, [and] structure of the Fourth Amendment supports exclusionary remedies” (Roots, 2010, p. 6). “[T]he words ‘unreasonable searches and seizures’ were Revolutionary-era rhetoric condemning British general warrants of the 1760s and 1770s as without reason (outside of reason) and therefore illegal and unconstitutional; they were not meant to license future judicial speculation… [thus,] the key to Fourth Amendment mysteries is the displacement of eighteenth-century common-law rules by later legal tinkering” (Stromberg, 2010). That tinkering, led by the U.S. Supreme Court as it engages in constitutional pseudo-jurisprudence by rendering from sheer cloth a definition of Fourth Amendment “reasonableness” as based on balancing individual privacy rights against governmental interests—a wholly manufactured definition— is addressed and condemned below.

Secrecy: Constitutional Overreach Thrives in Darkness Novel crime-fighting technologies and deceit thrive and regulation of them whithers when they live in secrecy. Moreover, “new surveillance technology tends to operate in opaque and unaccountable ways, augmenting police power while remaining free of meaningful oversight [while] shifts in Fourth Amendment doctrine have expanded law enforcement’s ability to engage in surveillance relatively free of scrutiny by courts or by the public… . The result is that modern policing is not highly visible to oversight institutions or the public and is becoming even less so … [and] law enforcement techniques that rely on advanced technologies are often less visible to individual targets, the judicial branch, and the public than their physical counterparts. This relative secrecy impedes efforts to rein in law enforcement activities through legislative or administrative oversight, litigation, and policymaking. In other words … even as law enforcement expands the amount and types of information they collect about communities and individuals, the public and other stakeholders have remained comparatively in the dark about these practices.” (Bloch-Wehba, 2021, pp.  917, 919, 921). That secrecy “threatens to upend this check on law enforcement” (Manes, 2019, p. 525). “As we have seen, the parts of government that typically set rules for policing—the courts and legislatures—simply cannot function properly when the techniques themselves are shrouded in secrecy … secrecy

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reallocates power away from legislatures and courts to the police, leaving the police free to use intrusive technologies without meaningful checks; and (2) it distorts the relationship between citizens and the government by expanding the investigatory and informational powers of government at the expense of an unwitting citizenry” (Manes, 2019, pp. 530, 557). Secrecy of these novel technologies is often justified by the trope that disclosing their use and how they work would gird and forewarn criminals. But whether by treating novel crime-fighting technologies as proprietary property of commercial interests (Joh & Joo, 2022) or by courts deeming them not searches at all and thus leaving them free of judicial review, or by simply taking advantage of the petabytes of private data on individuals accessible on the Internet, secrecy empowers police and delays or cripples meaningful oversight and regulation by shielding these novel techniques from meaningful review. “Secrecy, in other words, fosters a system of de facto self-regulation in which police agencies decide for themselves whether and how existing laws apply” (Manes, 2019, p. 530). That is awful but lawful—for now.

Evolution and Erosion of Fourth Amendment Foundations If one accepts Professor Davies’s historical assessment of the true meaning of “reasonableness” and the Fourth Amendment, one could credibly ask “What happened?” “The Supreme Court has held, and reaffirmed many times, that exceptions to the warrant requirement are ‘jealously and carefully drawn.’ Yet, over time, these exceptions have grown in both number and breadth--eroding the rights that the Amendment guarantees to citizens in favor of aggrandizing the power of law enforcement officers” (Ahmad, 2020, p. 1). The evolution—and erosion—of the Framers’ intended Fourth Amendment protection of The People, is addressed in this section and the next. That erosion started relatively soon after the Fourth Amendment and the rest of the Bill of Rights were ratified in 1791. For decades in the Framing Era, courts interpreted Fourth Amendment “unreasonableness” as relating only to those general warrants that had been issued without reason. The Framers had envisioned warrants as the sole mechanism by which the government could arrest and search, because the power of officers in the late 1700s was “still meager … The modern interpretation of ‘unreasonable searches and seizures’ is the product of post-framing developments that the Framers did not anticipate.” (Davies, 1999, p.  552). The Framers assumed that “unreasonable searches and seizures” related only to improvidently issued general warrants and federal and state court opinions of the era applied that “unreasonable” language almost exclusively to warrants (Davies, 1999, p. 615 and cases cited in his footnote 174). In the 1800s, however, courts and legislatures, concerned with growing crime accompanying the Industrial Revolution, began to grant police powers to warrantlessly—based on each officer’s own discretion—arrest and

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search. Then, in the early 1900s, the U.S. Supreme Court belatedly began to extend “unreasonableness” as the standard for officers’ decisions to warrantlessly arrest or search. One could scarcely imagine a more inapt extension of the Framers’ intentions and word choices than that.

 olitics, Balancing, Judicial Activism, P and the Fourth Amendment Professor Davies captured the primary political force driving the demise of the Fourth Amendment’s Framers’-intended protection of The People. Davies (1991, pp. 4, 7) writes, the majority of the Justices have embarked on a campaign to replace the basic idea that the Fourth Amendment sets out an enforceable right with the notion that the amendment merely authorizes the courts to regulate, as they think advisable, [only] the most blatant instances of police misconduct. This regulatory understanding of the Fourth Amendment, however, merely gives reviewing courts discretion to rein in government intrusions if and when they choose to do so; it does not require reviewing courts to enforce a citizen’s right … . It is well understood that a principal determinant of Supreme Court decisions is the membership of the Court, and the voting patterns of the Justices reveal that, for at least the last two decades, there has been a bloc of at least five Justices who have tended to favor aggressive police conduct in search cases. The predictability of the Justices’ voting positions is not surprising; an ideological predilection to favor expansive police power in such cases usually has been a political requirement for nomination to the Court during recent administrations.

“[O]ver roughly the last four decades the continuing conservative majority of the justices of the Supreme Court have reduced Fourth Amendment doctrine to little more than a rhetorical apparition” (Davies, 2010c, p. 934). En route to characterizing Justice Antonin Scalia’s pseudo-jurisprudence in Illinois v. Rodriguez (U.S. 1990), but equally apt as a description of the majority’s statist power grab, Professor Davies bemoaned, “There is no judicial restraint, strict construction or original intent. … There is only a sort of ‘we’ve got the votes so we can say anything we want’ hubris. .… [Justice Thurgood] Marshall complained that ‘Power, not reason, is the new currency of this Court’s decisionmaking’” (Davies, 1991, p. 100). “Justices routinely innovate and change existing doctrine, but they typically cover up their innovations by inventing fictional accounts of precedent and history” (Davies, 2010c, p. 940). Today’s “Fourth Amendment reasonableness is merely a creation of judges who sought a rubric for announcing their personal predilections as law” (Davies, 2010c, p. 1037). That is how the Fourth Amendment lapsed into its current coma—politics and statist and act utilitarian preferences favoring the greater net good and discounting minority rights elevated police and law-and-order over the Constitution and its foundations.

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What Remains of the Fourth Amendment Today Justice Antonin Scalia, writing for a majority of the U.S. Supreme Court opined less than a dozen years ago that “At bottom, we must ‘assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted’” (United States v. Jones (U.S. 2012), quoting Kyllo v. United States (U.S. 2001)). But that is far more charade than commitment; officers had no power to warrantlessly arrest or search in the Framing Era. “Current Fourth Amendment doctrine is not merely confused. It is fraudulent,” Davies (2010a, p.  136) writes. Current court approaches to the Fourth Amendment have “led to a complicated morass of doctrines and theories” and ignored problems caused by “inadequately constrained government power, lack of accountability of law enforcement officials, and excessive police discretion” (Solove, 2010, p. 1514). “[T]oday’s police badge confers the sort of discretionary authority that only a general warrant could have conferred in 1789” (Davies, 2010a, p. 133). The operative “probable cause” standard today is “more like plausible cause or possible cause than probable cause … the probable cause warrant standard explicitly stated in the Fourth Amendment no longer carries much significance” (Davies, 2010a, pp. 130–131). What began as judicial fiat holding that “reasonableness” in the text of the Fourth Amendment is the Framers’ constitutional standard for assessing the constitutionality of warrantless searches and arrests has blossomed into a full-blown onslaught on the Fourth Amendment and individual protections in the digital age. Of course, the Court’s use of reasonableness to assess novel crime-fighting techniques is even more egregious than the sand on which it was built. Reasonableness has become a balancing test where the Court’s valuation of the individual’s interest in being protected under the Fourth Amendment or being left alone is balanced against the Court’s assessment of the importance of the governmental interest in effective law enforcement, expedience, and the like: “the Court has said that reasonableness of a search is determined by weighing the promotion of legitimate governmental interests against the degree to which [the search] intrudes upon an individual’s privacy” (Newman, 2021, p. 35). That is precisely not what the Fourth Amendment and the Social Contract command. Individuals’ privacy interests are constitutionally protected; police expedience or effectiveness is not. Some have argued the U.S. Supreme “Court has degraded the warrant requirement by recognizing and amplifying a series of exceptions [that] threaten to swallow the [Exclusionary] rule, leaving most searches and seizures to the discretion of law enforcement officers in the first instance. At the same time, the Court has expanded the immunity function of warrants, realizing our founders’ fears by barring civil actions where officers violate the Fourth Amendment in ‘good faith’” (Gray, 2016, p. 428). Others have argued the Court has allowed morality to color its assessments of reasonableness such that if the defendant’s behavior is deemed by the Court to be immoral or undesirable, it is entitled to less weight (e.g., Lvovsky, 2018). Of course, Fourth Amendment litigants already face a disadvantage since criminal evidence was seized from them ab initio so “reviewing courts are reluctant to suppress

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unconstitutionally seized evidence in any event” (Davies, 1991, pp. 6–7; see also Baradaran, 2013, p. 4). Still, other commentators argue the Court has created deterrence of bad police conduct as the bedrock of Fourth Amendment reasonableness and a prerequisite before suppression of the unconstitutionally obtained evidence is an appropriate remedy; that Court perspective gave rise to the good faith exception to the suppression remedy applicable when there is no bad police conduct to deter (Bloch-­Wehba, 2021, p. 938; United States v. Leon (U.S. 1984)). Deterrence of bad police conduct is a Court-made mirage to reduce the likelihood of suppression; vindicating the constitutional violation by suppressing the evidence and protecting the subject’s privacy right should be the only standard required. Some other court-crafted reasonableness erosions, include the third-party doctrine (del Rosso & Best, 2020), descending a bit in prominence now, which argued that one could not challenge the seizure of evidence that had been “voluntarily” disclosed to a third person. Special needs searches have expanded to sweep more unconstitutional searches into the acceptable and admissible pile (Fretty, 2011, pp.  447–449). Exigencies have been crafted and expanded that allow officers to warrantlessly arrest or search and even enter residences if there is a court-perceived exigency sufficiently important (apparently) to justify ignoring the violated constitutional right (Ahmad, 2020). Consent has been tugged and pulled through bus search cases, dual-tenancy cases and others to bear little resemblance to the knowing and voluntary consent in legal casebooks (see Chap. 4 herein on consent searches). The Court’s spurious application of the Fourth Amendment’s reasonableness clause to all warrantless searches and the torrent of court-created exceptions are swallowing the Exclusionary Rule. In the digital age, when technological advancements in digital crime-fighting tools occur by the day at virtually no cost and with virtually no notice or vetting, the Court’s abuse of the Fourth Amendment has careened out of control unmoored from its foundations (Donahue, 2016). Review the following novel crime-fighting technologies, past-present-future, and consider whether the Court’s awful Fourth Amendment reasonableness pseudo-jurisprudence must be abandoned as unlawful, unethical, unconstitutional, and unworkable.

Selected Novel Crime-Fighting Technologies Haber (2021) has helpfully demarcated five eras of law enforcement technology. During the Political Era (~1840–1920), crime-fighting technology was simple and limited, including multi-shot pistols, nightsticks, wiretaps of a sort for telegraphs, and (later) telephonic communications. In the Professional Model Era (~1920–1970), fingerprinting, handwriting analysis, the first crime laboratories, squad cars, two-­ way radios, (later) speed radars, (still later) development of the FBI’s National Crime Information Center (“NCIC”) criminal history database, and the first police agencies with computers arose. In the Community Policing Era (1970–2000),

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large-­ scale police agency computerization, dispatch services, 9-1-1, soft body armor, night-vision equipment, deterrent and irritant aerosols, Tasers, and many other new police technologies arrived. In the Digital Policing Era (2000–2020s), novel crime-­fighting technologies have grown exponentially, including the Internet, mass data storage, mobile CRT computers, the beginnings of artificial intelligence (“AI”), more public-sited cameras, more sensors, more timestamps, body-worn cameras, drones, gunshot detection, GPS, and many other technologies arose and matured. Haber (2021) also posits the next era, which he labels the Autonomous Policing Era (2020s and beyond) will see land and air travel and surveillance becoming more autonomous, bomb-disposal moving to unmanned, scene response may be via robot dogs, and the entirely of the Internet of Things (Ferguson, 2016) may be co-opted or at least mined for investigative assets, resources, and evidence. That era-by-era rendition proceeds apace at breakneck speed while the Court and Congress plod along at a pace more appropriate for pre-digital eras. As you consider the following subset of crime-fighting technologies (Krishnan, 2018) over time, imagine how the Court’s spurious balancing formulation for reasonableness has put us on a collision course with the end of privacy.

Fingerprinting and AFIS Fingerprints led to a conviction in a U.S. court for the first time in Chicago in 1910 (Benoit, 2023), Automated Fingerprint Identifications Systems (“AFIS”) is a memory platform for storing millions of fingerprint descriptors and searching for matches therein. This is a comparative technique with visual compactors and computerized fingerprint description tags used for comparisons.

Two-Dimensional X-Rays Two-dimensional x-rays have been admissible in American court proceedings for the last 125 years, arising in the “Political Era” (Smith v. Grant (First District Court of Colorado, 1896)). This was a visual technique, allowing factfinders to visualize internal bodily characteristics invisible from outside the body. The focus on admissibility was reliability, procedural efficacy, and reproducibility.

Three-Dimension Imaging and Modeling Three-dimensional imaging (computerized tomography and related imaging) is routinely admissible as demonstrative (illustrative) evidence only although a growing number of courts are substantively admitting three-dimensional images and models based thereon in criminal and civil cases (McGee et al., 2020).

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Backscatter X-Rays and X-Ray Vans A new generation of x-ray mobility is upon us and fully rolled out especially in border areas. These backscatter x-ray machines can be mounted in mobile vehicles that can “see” inside passing vehicles using x-ray technologies; concerns abound related not just to privacy but to radiation pollution and exposure as well (Grabell, 2016; Kendall, 2013; Manes, 2019, pp. 520–524; Slobogin & Brayne, 2023). Rules for x-ray vans were devised by law enforcement agencies using them and have largely remained hidden from view and public oversight (Manes, 2019, p. 532).

 ccident Reconstruction, Arson Investigation, and Other A Judgment Tools, Not Science A subset of forensic science is not “science” at all. Those are creative ventures and judgment calls based on observation and expertise but not on direct science per se. Those forensic non-science techniques include ballistics, fingerprinting, shoeprints, accident reconstruction, arson investigation, and fiber, hair texture, bitemark (odontology), and other observational and comparative analyses that are not always reliable and can produce false results. All have come under fire in recent years and while still admissible in many jurisdictions and situations, may compromise the fact-finding process of criminal justice (Bonventre, 2021). “The misapplication of forensic science contributed to 52% of wrongful convictions in Innocence Project cases” (Innocence Project, 2022). Thirty-two percent of the exonerations in 2021 alone were related to false or misleading forensic evidence (National Registry of Exonerations, 2022a).

Polygraphs Polygraphs are devices that detect biological responses to question stimuli. Their reliability is questionable (Saxe & Ben-Shakhar, 1999) and their admissibility has been rejected by the U.S. Supreme Court (United States v. Scheffer (U.S. 1998)). In Scheffer, the Court held “there is simply no consensus that polygraph evidence is reliable … little better than could be obtained by the toss of a coin, that is, 50 percent” (pp. 5–6). Nonetheless, some courts allow criminal defendants to offer exculpatory polygraph evidence if the court and prosecutor acquiesce or, in the absence of acquiescence, under the Sixth Amendment theory that courts should not unnecessarily impede a defendant’s choice of defense tactics (e.g., Domin, 2010).

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Computerized Voice Stress Analysis (“CVSA”) Computerized Voice Stress Analysis (“CVSA”) uses changes in voice cues, tremors, and sub-glottal pressure to detect stress, identify falsehoods, and convert those findings into admissions and confessions (Chapman & Stathis, 2012). It is useful in investigative phases and in post-arrest and post-conviction monitoring and screening (Stathis & Marinakis, 2022). In inexpert hands, this can lead to false and psychologically coerced confessions. CVSA has been used on victims/survivors by unscrupulous investigators wishing to clear cases as unfounded when the subject demonstrates any CVSA deception or stress.

DNA Genotypes, Phenotypes, and Familial Matching DNA genotyping based on matches of non-coding regions of DNA strands against known persons’ DNA genotypes has been used in investigations since the mid-­1980s (Butler, 2009, p. 2). This genetic science is characterized by Herculean efforts to properly collect, transport, and process crime scene samples then testify as needed in modes and methods approved by national and international regulatory bodies that evaluate and certify DNA genotyping laboratories and their procedures (American Society of Crime Laboratory Directors, n.d.). The FBI maintains the national CODIS DNA database of known and unknown DNA genotypes. DNA phenotyping looks at coding regions of DNA in an effort to generate a physical description or even a model of the appearance of an unidentified person or based on a DNA specimen left at a crime scene (MacLean, 2013; MacLean & Lamparello, 2014a). Its use is restricted to investigation and is inadmissible in court. Familial DNA searching (Debus-Sherrill & Field, 2019) has evolved from DNA genotyping to enable investigators to identify the source of biological material left at a crime scene by using DNA genotypes of close relatives who share substantial segments and characteristics of the source’s DNA genotype. Those concerned with privacy erosions (e.g., ACLU of New York, 2017) have argued that this is a search without warrant or consent as the family members whose DNA genotypes are used to develop matches may have been consented but the suspect has not consented and thereby turning privacy on its head as entire families may be cast as suspects by this technology. Furthermore, it has been argued that Black and Hispanic family members would be disproportionately harmed by familial DNA searching (Grimm, 2007).

Thermal Imaging Since Katz v. United States (U.S. 1967), technologies able to hear or see through the walls of a residence required a warrant. In United States v. Kyllo (U.S. 2001), the U.S. Supreme Court held that where officers use thermal imagers from outside a

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residence to detect heat signatures and hotspots based on heat inside a residence, that is a search requiring consent or a warrant since the device perceives beyond (enhances) the limits of the investigators’ physical senses and the technology is not in general use among civilians (see also Levinson-Waldman, 2017).

Smartphones, Dirtboxes, Stingrays, and CSLI Who among us has read the entirety of our smartphone service provider’s privacy notices, which sometimes stretch to 100 s of pages? (MacLean, 2016). Virtually no one reads those privacy notices (Elliott, 2013, p. 13) and one study estimated would take the average user 240  hours per year to read every privacy policy for all the websites they visited (McDonald & Cranor, 2008). Instead, we click through the “I accept” privacy waivers and thereby disclose to internet service providers, software purveyors, and other prying eyes, including law enforcement, our web-surfing, and other digital footprints. Smartphones and cell phones work by sending constant signals to cell site towers so that smartphone calls may be instantaneously connected no matter where you may be with your phone. Of course, the cell phone service provider logs and maintains those cell site locations for a period of time for business purposes. Those cell phone and cell site tower proprietors are thus third parties who are routinely subpoenaed by law enforcement to recover real-time and historical cell site location information (“CSLI”). That was happening for years before the U.S. Supreme Court decided by a narrow 5:4 margin that officers collecting CSLI are conducting a search that, absent consent, requires a judge-issued warrant (Carpenter v. United States (U.S. 2018)). And the reasons are clear as collecting even a month of CSLI can effectively paint for law enforcement a detailed picture that “reveals a complete and intimate picture of a person’s life” (Bard, 2016, pp. 742–743; see also Geoseffi, 2017; Gray, 2016; Levinson-Waldman, 2017). Smartphones are treasure troves of personal information that could be valuable for any number of law enforcement investigations and the target is tempting (Levinson-Waldman, 2017, pp. 536–539; MacLean, 2012; MacLean & Lamparello, 2014b). But there are other ways for officers to kick that smartphone surveillance cat, so private commercial interests developed Dirtbox and Stingray technology that serves as cell-site simulators leading nearby cell phones to connect to the Dirtbox or Stingray instead of actual cell towers (Bard, 2016, pp. 731, 748, 750; Gray, 2016, p. 481; Kim, 2016; Manes, 2019, pp. 505, 513–519, 532; Slobogin & Brayne, 2023; Zetter, 2020). Digital Receiver Technology [www.drti.com] (hence, the DRT of Dirtbox) manufactures small cell site simulators that can be transported by vehicle or by air to cover more territory and capture more cell phones. Stingray is the tradename for a cell site simulator manufactured by Harris Corporation [www.l3harris. com] (now, L3Harris Technologies) that is about the size of a briefcase and captures cell phones and cell phone signatures analogously to a Dirtbox. Law enforcement has kept cell site simulator use largely secret from the public, legislatures, and courts:

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6  Fourth Amendment Erosion and Novel Crime-Fighting Technologies The use of cell-site simulators have been shrouded in government secrecy. Police have used cell-site simulators to track location data without a warrant, by deceptively obtaining “pen register” orders from courts without explaining the true nature of the surveillance. In Baltimore, a judge concluded that law enforcement had intentionally withheld the information from the defense, in violation of their legal disclosure obligations… . Prosecutors have accepted plea deals to hide their use of cell-site simulators and have even dropped cases rather than revealing information about their use of the technology… . (Electronic Frontier Foundation, n.d.)

“Until the U.S. Supreme Court accepts the opportunity to modernize the Fourth Amendment, Congress should enact legislation requiring all law enforcement agents to obtain a warrant before using the Dirtbox or other cell-site simulators” (Bard, 2016, p. 731).

Geofencing Law enforcement has turned to geofencing (reverse location searching) requests for data from software and internet service providers; such requests ask say, Google, to disclose to law enforcement all Google users who were within 300 feet of a specific site at or around a specific time—Google fields some 200 geofencing requests from law enforcement per week (Sawyers, 2020). In addition of Google, such geofencing requests from law enforcement are also directed to Facebook, TikTok, GoogleMaps, Weather.com, and other apps, software, and equipment with location services enabled.

Automated License Plate Readers (“ALPR”) The New  York Police Department positions automated license place reader (“ALPR”) devices on its bridges and squad cars to read and store the license plate details for every vehicle crossing a bridge into or out of and traveling within New York City (ACLU-Washington, 2022)—because they can. Computer storage is virtually free and each ALPR can record thousands of license plates per minute. It is a bonanza for law enforcement and privacy erosion for those individuals whose license plate are cataloged and tracked as they visit their friends, places of worship, demonstrations, and so on (Díaz & Levinson-Waldman, 2020; Manes, 2019; Slobogin & Brayne, 2023). ALPRs are often disproportionately placed in lowincome communities and communities of color (Bloch-Wehba, 2021, p. 919). And the potential harassment and other threats for immigrant communities and reproductive rights locations, activists, and workers are clear (University of Washington, 2022). But police have been less than candid about their ALPR initiatives, Congress has not yet fully acted on ALPRs, and courts have been characteristically slow to respond.

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GPS Vehicle Tracking and EZ-Pass The demise of GPS vehicle tracking predicted by some after United States v. Jones (U.S. 2012) (finding prolonged warrantless GPS tracking of a vehicle was an unconstitutional search as either—or both—a trespass or a violation of reasonable expectations of privacy) has been dramatically exaggerated whether through birddogs (GPS tracking devices magnetically affixed to the exterior of a vehicle) or through cell phone tracking of the cell phones present inside the vehicle. Of course, that same tracking can also be conducted using the vehicle EZ-Pass toll road transmitter, through the apps on one’s cell phone, and through ALPRs, facial recognition, and any number of the other novel crime-fighting technologies touched on in this chapter (Brown, 2015; Elliott, 2013; Gray, 2016; Levinson-Waldman, 2017, pp. 534–536, 544–546, 599–601, 608–609). We are still waiting for guidance and limits from the twin tortoises: the courts and Congress.

 ideos, Body-Worn Cameras, Surveillance Architecture, V and Pole Cameras Virtually any technology—new or old—can be and has been pressed into service by law enforcement. Video cameras are proliferating—commercial security cameras, residential security cameras, Amazon Ring doorbell cameras, body worn cameras, and cameras mounted to poles (Bloch-Wehba, 2021, p. 956; Fretty, 2011; Levinson-­ Waldman, 2017, pp.  540–542, 547, 602–605, 609, 614; Manes, 2019, p.  505; Slobogin & Brayne, 2023), on squad cars, and in all manner of public and private spaces. Again, the theory is that no consent is required from those videorecorded in public spaces where, the argument goes, they have no reasonable expectation of privacy, but what of United States v. Jones (U.S. 2012) and its apparent argument (by a number of justices at least) that prolonged warrantless digital age surveillance even in public spaces can arise to a violation of the Fourth Amendment? Furthermore, the videography may not be the ultimate wrong here; rather, the limitless and open-­ ended storage of video recordings retained for later culling in furtherance of law enforcement aims may tip the scales of public space videography toward a Jones-­ like threshold of privacy violation.

Drones, Robotics, and Aerial Surveillance Drones and robots, terrestrial and aerial, have already served as law enforcement tools in the digital age (Bryan, 2014; Ghoshray, 2013; Gray, 2016; Levinson-­ Waldman, 2017, pp. 542–544, 605–608; St. Lawrence, 2002; Slobogin & Brayne, 2023; Takahashi, 2013; Takahashi, 2015) and that will grow exponentially. Even

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General Dynamics “robot dogs” are being pressed into crime-fighting service (Mok, 2023). Of drones, one commentator noted, “Currently, no other technology has such an overwhelming ability to intrude into inner sanctums of individual dwellings. Introducing drones for domestic surveillance will usher in an era that will not have any point of return. Thus, once surveillance drones are allowed as a preventive law enforcement mechanism, or for surveillance, our existing conceptions of fundamental liberty will be instantly incinerated” (Ghoshray, 2013, pp.  590–591). Drones execute nonconsensual, high-tech, low-cost surveillance of our private and public moments; allowing them without congressional action and in the face of slow court response is awful but lawful—for now.

Facial Recognition The technology to “recognize,” identify, match, and catalog faces across huge swaths of public spaces, event venues, and the Internet exists today (Bass, 2022; Brown, 2014; Levinson-Waldman, 2017, pp. 540–542; Slobogin & Brayne, 2023; Zalnieriute, 2021) catalyzed by private, commercial interests only too happy to sell the technology and access to law enforcement: Law enforcement has turned to private sector vendors, including Amazon and Microsoft, to provide facial recognition software even in the absence of affirmative legislation, meaningful civil liberties safeguards, or transparency obligations. Amazon’s home surveillance subsidiary, Ring, has also entered into agreements with law enforcement to encourage consumers to adopt Ring products… . The turn toward facial recognition has raised particular concerns in light of the mixed evidence about the accuracy of its results and the high potential cost of error. Facial recognition software misidentifies Black and Asian faces as potential matches more frequently than it does White faces and performs particularly poorly for dark-skinned women. (Bloch-Wehba, 2021, pp. 956–957)

One popular facial recognition vendor “uses a person’s tagged photographs to derive a three-dimensional image of the subject’s face, and then searches the internet for all photographs of that person. Thus, a search reveals photographs published without the subject’s authorization” (Fretty, 2011, p. 434). The police, through deployment and use of facial recognition “have even transformed the humble closed-circuit video camera … into biometric tracking devices equipped with artificial intelligence meant to pick faces out of a crowd and, eventually, to mine gigabytes of stored footage to automatically reconstruct the movements of their targets. These kinds of novel police technologies test the constitutional limits on surveillance and raise profound questions about privacy, personal freedom, and potential abuse” (Manes, 2019, p. 503). It is not hyperbole to argue the “use of recognition technology digitally places nearly half of Americans, along other foreigners, in a perpetual lineup” (Haber, 2021, p. 73).

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 ebtracking, Social Media, Big Data Aggregation, Insourcing, W and Data-Mining Webtracking allows investigators to track online activity through third-party records (Bloch-Wehda, 2021, p. 921; Brown, 2015). Social media is a goldmine of investigative resources, including online posts cum admissions, photographs with metadata for dates and locations, and identification of friends, connections, allies, accomplices, and more (Bloch-Wehda, 2021, p. 921; Finkles, 2022; Manes, 2019). Big Data aggregation is the process by which commercial and law enforcement interests stitch together discrete internet content by matching identifying characteristics, such as IP address, name, street address, employer, locations and events, and the like (Bloch-Wehda, 2021, p. 921; Brown, 2015; Ferguson, 2017a; Fretty, 2011; Gray, 2016; Haber, 2021; Joh & Joo, 2022; Manes, 2019; Samuel, 2018). A Big Data aggregator could phish or query online background checkers for one’s full name, date of birth, past addresses, social media handles, IP address, credit cards, and more. Using those data, the aggregator could use name and date of birth to capture your frequent grocery customer account for your grocery and perhaps pharmaceutical buying habits; name and past addresses to gather prior law enforcement calls for service contacts; name, date of birth and current address to collect online buying and surfing activity; and so on. Those data are then aggregated to create a fact-rich and sometimes damning snapshot of a subject. No worries about violating anyone’s privacy in this Big Data aggregation process: the subject clicked through without reading every privacy waiver for every site. Finally, data-mining enables trained investigators to access Big Data aggregations and raw data on the Internet to find associates, activities, locations, admissions, photographs, and more (Ghoshray, 2013). Government use of private (commercial) data and the lack of constitutional limitations that appear to govern that government use has been dubbed “insourcing” (Brown, 2015). These online investigative technologies are “are often implemented without robust oversight or public awareness. The result is that law enforcement techniques that rely on advanced technologies are often less visible to individual targets, the judicial branch, and the public than their physical counterparts” (Bloch-Wehda, 2021, p.  921). The private surveillance networks into which investigators delve might reasonably be viewed as the “new writs of assistance” (Samuel, 2018) as they amass “petabytes of data on individuals enabled by crime-fighting technologies” (Joh & Joo, 2022, p. 10).

Predictive Policing and Artificial Intelligence (“AI”) In the Haber (2021, pp. 76–78) Digital Policing Era, predictive policing and artificial intelligence (“AI”) have garnered an investigative stronghold given the era’s hyper-connectivity and third-party, often commercial, access to reams of personal

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data. These tools use powerful computers and algorithms to stitch together facial recognition, video ubiquity, ALPR data, crime mapping, social media, Big Data, and other digital data to forecast hot spots (identified as when and where crime is likely to occur or criminals are likely to be present) so that agencies can marshal personnel, equipment, and yet more technology (ALPRs, facial recognition, pole-­ mounted video cameras, and so one) to build yet deeper and broader databases in their quest to ferret out crime. Obviously, these technologies are multipliers—of personnel and data—that law enforcement agencies use to compensate for officer recruitment challenges and data/evidence gaps (Joh, 2015; Manes, 2019, pp. 505–506). It is easy and cost-reasonable to collect and assess these data using these tools on law enforcement and commercial datasets, but is it consistent with the Fourth Amendment and the Social Contract—that is, is it awful but lawful?

Brain Fingerprinting and Whatever Else Tomorrow May Bring The abbreviated grouping of novel crime-fighting technologies in the Digital Policing Era that are highlighted above is an incomplete snapshot of innovative technological advancements for investigators mostly in just the past two decades. Given the hare’s accelerating pace of technological developments, one can expect many more invasive and creative and secret advancements over the next two decades as we approach Haber’s (2021, pp. 78–79) Autonomous Policing Era. We could see tools that can read minds; one example is brain fingerprinting and other cognitive camera technologies (Halliburton, 2007) with which it may be “impossible to keep a secret .… Brain Fingerprinting is but one example of a larger class of strategies designed to provide the means to tap into human cognitive contents and cerebral functioning for information-gathering, rather than clinical scientific purposes… . The common thread uniting these complex and varied approaches is the belief that technological innovation can provide the power to peer behind the veil that keeps our thoughts and thought processes confidential, and that developing the power to do so ultimately serves the public good” (Halliburton, 2007, p. 310). In the near future, as just a small subset of crime-fighting technologies on the horizon, law enforcement could (1) assess genetic predispositions to dangerousness and re-­ offense and base arrest, sentencing, and supervision decisions on the findings; (2) respond to crime scene with autonomous and unmanned but armed robotic devices with officers a safe distance away; (3) police the metaverse through Virtual Reality (“VR”) police avatars (Cieslak & Gerken, 2023); (4) use smart squad cars stationed at smart police stations (OPSI, 2022) to police smart cars on smart roads in smart cities (Harrison, 2020; Interpol, 2022); (5) wear exoskeletons, VR headwear, augmented reality (“AR”) equipment, enhanced body-worn cameras, and smart holsters (Interpol, 2022); (6) collaborate with commercial data gathering entities that come to monopolize data on individuals and obviate the need for separate police-­controlled databases (Interpol, 2022); (7) see bots as “an essential part of the police workforce”

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(Interpol, 2022); (8) make far broader use of three-dimensional imaging and modeling for crime and incident reconstruction (Carew et al., 2021); (9) use AI chatbots and ChatGPT for translation services and other needs (Seki, 2023); and countless and unimaginable others. In this digital age, when novel crime-fighting technologies are developed every year, when private and commercial interests are dominating data collection and interpretation on the Internet, when the U.S. Supreme Court has created exceptions that are consuming the Fourth Amendment and Exclusionary Rule, and when our privacy is in the hands of a judiciary that is glacially slow and Congress that is ineffectual and locked in partisan bickering, we must do better to protect privacy while still providing law enforcement valuable and constitutional tools to combat crime. A few proposals are presented below.

Solutions, Wise and Otherwise Transparency Without regard to what other paths we take in the digital age to protect privacy and honor the Fourth Amendment and the Social Contract, we must require law enforcement transparency regarding the digital tools and technologies they use along with how and in what circumstances they use them. Although the United States has developed a sort of national malaise and fatalism toward the loss of privacy in the digital age, we must protect privacy by demanding more transparency. Privacy erosion need not be inevitable and limitless. That erosion can be slowed or stopped by meaningful regulation, legislation, and jurisprudence, but the first prerequisite is openness and transparency. Transparency in this digital age is complicated by the stranglehold private, commercial entities have on the Internet, social media, cell service, databasing, Big Data, and on novel crime-fighting technologies all together. The proprietary interests of those private, commercial entities in the designs, patents, operational details, user interfaces, and otherwise have cast a pall over data-sharing that is essential to meaningful oversight and regulation. In our democratic society, the People hold the power and must have access to the proprietary information to render decisions in this digital age. And criminal defendants must have access to—they have a constitutional due process right to access—proprietary information on technologies used against them so they can meaningfully prepare their defense and effectively crossexamine state witnesses. That access right has largely been ignored or denied so far. That must end.

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Community Oversight and Input As a correlate to transparency, there must be a priori community notice, community input or control, public comment, and formal rulemaking. The myth that disclosing police technology will forewarn and forearm criminals for how to avoid detection is just that—a myth. The public has a right to know—even if commercial interests claim proprietary interests in maintaining secrecy and even if a few criminal elements may be informed via that public notice and comment process. “Surveillance methods in the United States operate under the general principle that ‘use precedes regulation’” (Milligan, 2014); we must flip the order of that script and regulate, limit, modify, or authorize novel crime-fighting technologies before their use. Democratic and constitutional principles, the Constitution, and the Social Contract require no less.

Katz and “Anything But Katz” The reasonable expectation of privacy principles arising from Justice Harlan’s concurrence in Katz v. United States (U.S. 1984) have supporters and detractors among Fourth Amendment scholars. The supporters find it a workable way to approach Fourth Amendment “reasonableness” (e.g., Bordelon, 2021). The detractors argue either or both (1) that the reasonableness clause was related to too-general warrants only and not warrantless searches (a la Davies, 1991; Davies, 1999) and (2) that clause has introduced an elitist, statist (Davies, 1999), moralistic (Lvovsky, 2018) veneer through its implicit balancing formulation (Solove, 2010).

Use the Carpenter Privacy Model “[I]n determining the scope of the Constitution’s protections for data generated by digital technologies, courts should weigh the five factors considered in Carpenter: the intimacy and comprehensiveness of the data, the expense of obtaining it, the retrospective window that it offers to law enforcement, and whether it was truly shared voluntarily with a third party” (Hecht-Felella, 2021).

Economics of Fourth Amendment Applications Some argue that economics should drive Fourth Amendment assessments of novel crime-fighting technologies (e.g., Kerr, 2016). Nothing rings less constitutional and more unjust than that. The Fourth Amendment says not one word about economic

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cost-benefit analysis to determine what searches should be permitted and what should not. And if commentators argue economic analyses are implicit in the word “unreasonable” in the Fourth Amendment, that strays still farther from the notion (Davies, 1999) that the Fourth Amendment reasonableness “clause” had nothing— in the Framers’ minds or intents—to do with warrantless searches by law enforcement officers. The following aside from Professor Orin Kerr captures well our sense that economic cost-benefit analyses applied via the Fourth Amendment is historically, logically, constitutionally, jurisprudentially, and tragically unsound: “To academics with expansive views of the Bill of Rights, the notion of importing economics into discussions of search and seizure law may resemble a large wooden horse left by the Greek army just outside the city of Troy. However appealing it may seem in the abstract, one wouldn’t want to wheel it inside the gates” (Kerr, 2016, p. 647). Precisely! The Fourth Amendment was ratified to reflect the Social Contract and natural rights to be let alone and free from general warrants; it was not intended to trigger a balancing exercise where, too often, individual constitutional rights are sacrificed on the altars of the false “gods” of police expediency, majority preferences, or “effective” law enforcement.

Equilibrium Adjustment Approach Kerr (2016), clinging to the use of the reasonableness clause as a balancing test weighing individual constitutional rights against police expediency and efficiency, has also proposed the equilibrium adjustment approach. Using this approach, when new crime-fighting technologies upset the Katz “balance,” courts should reset the equilibrium between individuals’ privacy rights and police/society preferences to protect the degree of individual Fourth Amendment rights present at its ratification such that “[w]hen new tools and new practices threaten to expand or contract police power in a significant way, courts adjust the level of Fourth Amendment protection to try to restore the prior equilibrium.” That has intuitive appeal but falls into the historical mirage that the Framers saw the reasonableness clause as a constraint on government power to perform warrantless arrests and searches—as we illuminated in section ___ above, Fourth Amendment “reasonableness” at ratification was merely a pejorative reference to general warrants.

Informational Security Approach This approach argues that whether one applies Jones trespass theory or Katz/Jones reasonable expectation of privacy formulas, and contrary to U.S. Supreme Court rhetoric, the Fourth Amendment protects (and must protect) not just persons or places; the Fourth Amendment also protects personal control over personal information (Ferguson, 2017b, p.  605). That is a somewhat satisfying perspective but

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appears (1) too beholden to “reasonableness” definitions purportedly derived from the Framers but actually traceable to post-Framing Era judicial pronouncements that alleged they were steadfastly adhering to the Framers’ original intent and original meaning, when in fact, those definitions would likely have shocked the Framers (Davies, 1999); and (2) to require some strained constructions and logical stretches fitting modern realities into pre-digital age constructs, such as treating online data encrypted (and thus closed off) from others as analogous to pre-digital age “closed containers” (Ferguson, 2017b, p. 607).

The Tyrant Test Ferguson (2021) later proposed what he termed the “Tyrant Test” whereby we protect individual privacy through the Fourth Amendment as if we were protecting the individual from a metaphorical tyrant: “After a decade of experimenting with big data policing, the time has come for a new first-principles approach. Fearing the metaphorical tyrant offers an appropriate starting point for debate. The risks are real, and the way society approaches the rise of new privacy-destroying technologies is critically important to the future power balance between the police and the people” (Ferguson, 2021, p.  290). Ferguson’s Tyrant Test also bends in the right direction and leans closer to the Framers’ original vision that the Fourth Amendment was designed to protect individuals from general warrants, that is, to protect individuals from the Draconian privacy invasion of the time—in the Framers’ time, it was general warrants; in our time, it is novel and crime-fighting technology that leads law enforcement to affiliate with private, commercial interests to share our personal data without our consent and without a warrant.

J ustice Sotomayor’s Jones Concurrence and the Cybersurveillance Non-intrusion Test Cybersurveillance non-intrusion tests reframe the focus from individual Fourth Amendment privacy interests to include society’s losses occasioned when individual privacy is invaded: “To address the growing challenges of cybersurveillance technologies, and the harms emanating from the protocols and programs of bureaucratized cybersurveillance, a new cybersurveillance nonintrusion test rather than a privacy test could be implemented. A cybersurveillance nonintrusion test would start with a consideration of privacy customs and the norms and values of democratic society. The secondary inquiry would be whether a subjective expectation of protection from government intrusion is reasonable. The subjective inquiry would not focus on an individualized privacy expectation, but rather on the question of whether or not an intrusion has occurred” (Hu, 2017, p. 1896).

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Justice Sonia Sotomayor saw the need for and proposed without labeling it a cybersurveillance non-intrusion test focused on democratic society’s losses when individual privacy is eroded: “Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity ... may ‘alter the relationship between citizen and government in a way that is inimical to democratic society’” (United States v. Jones, 2012, p. 416 (Sotomayor, J. dissenting), quoting United States v. Cuevas-Perez (8th Cir., 2011, p. 285)); see also Brennan Center for Justice, 2021)). Such cybersurveillance non-intrusion tests would be a positive step, including individual Fourth Amendment privacy interests while supplanting them with the interests of a democratic society in an oppressively invasive Digital Policing Era. However, the Fourth Amendment protects each individual’s privacy rights, not society’s need to be protected from resulting societal harms; thus, cybersurveillance non-intrusion tests would be just one more variant of judicial activism: the courts rewriting the Constitution without following the constitutional amendment process the People agreed to when ratifying the Constitution (the Social Contract) (U.S. Const. art. V).

 nding the Awful But Lawful Era of Secret, Unregulated E Novel Crime-Fighting Technologies Those committing crimes have access to a wide array of technological tools for committing crimes and evading discovery and arrest. Law enforcement agencies have a genuine and constitutional need for advanced and novel crime-fighting technologies to combat crime. But the Fourth Amendment has been interpreted to have virtually no guardrails, no required suppression of unconstitutionally obtained evidence, no consistency with the Social Contract, and no connection to or concordance with the Framers’ Fourth Amendment. Further, the process of novel crime-fighting technology development and rollout and investigative databases have no public vetting process and are controlled by private, commercial enterprises that are not subject to Fourth Amendment limits. And finally, the U.S. Supreme Court has been complicit in eroding what Fourth Amendment protections remain by manufacturing exceptions, exclusions, waivers, and pseudo-jurisprudential devices that give life to the Court majority interests in aggressive police performance while caring little for precious privacy safeguards in the true Fourth Amendment. These Supreme Court accretions to the Fourth Amendment have obscured its meaning, impact, and intended roles in our society. And Supreme Court diminutions of individuals’ privacy rights is antithetical to any concept of democratic society and constitutional adherence. The Court’s interference has left today’s—and tomorrow’s—novel crime-fighting technologies largely unregulated and has left to law enforcement discretion how and when to use those technologies and in what

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ways. Congress, too, has been tardy or absent in affirming and memorializing the limits on government intrusion into privacy protected by the Fourth Amendment. This is awful but lawful—so far. The awful but lawful era of secret and largely unregulated novel crime-fighting technologies in the digital age requires a societal, legislative, and judicial reaffirmation and re-commitment to the guarantees explicit and implicit in the Fourth Amendment and the Social Contract. The Fourth Amendment was ratified to ensure that the government could not overreach in piercing the privacies of life and the right to be left alone. At the time of the Framing of the Constitution, that overreach was general warrants and writs of assistance. Today’s general warrants and writs of assistance are privacy eroding and novel crime-fighting technologies and privacy-­ decimating private data collection, aggregation, and mining, all enabled by the sloppy and ahistorical Supreme Court interpretation and erosion of the Fourth Amendment, which now cowers at the brink of extinction just when technology explodes around us at a hare’s pace while the Court and Congress slumber and ignore the problem or create exceptions and exclusions unmoored from the Constitution and the Fourth Amendment slumber. The core of the Fourth Amendment ought not to be read to require warrants in all situations or in none and ought not to be read to allow spurious “reasonableness” balancing where individual privacy is cavalierly discarded so long as that suits the needs and preferences of those who are not suspects or defendants in criminal investigations and courts. Within that larger ambit, there are many options and that is where you—the readers—come in. The study questions below prompt you to consider constitutional and Fourth Amendment line drawing at the country’s founding, in the 1960s when the Warren Court expanded suspect and defendant rights, and now when technological change is accelerating exponentially while our privacy guardrails are ignored by Congress and the U.S. Supreme Court. You be the judge.

Discussion Questions 1. How has the advancement of technology contributed to the erosion of Fourth Amendment protections? 2. How does the concept of secrecy undermine the original intent of the Fourth Amendment? 3. What are some of the potential privacy concerns raised by the use of social media monitoring technologies by police departments, and how do these relate to Fourth Amendment protections? 4. How do emerging technologies, such as AI, augmented reality, and virtual reality, raise new challenges for Fourth Amendment protections in law enforcement contexts? 5. What steps can individuals take to protect their own privacy in the age of novel crime-fighting technologies?

Chapter 7

Police Discriminatory Enforcement and Excessive Force

Summary • Discriminatory enforcement by police involves unequal treatment of individuals based on their race, ethnicity, gender, or other factors. • “Policing for profit” is one driver of discriminatory enforcement. • Victims of police-involved shootings are disproportionally Black and killings excused under the “reasonable belief” standard fall far short of community expectations and norms in other wealthy nations. • The Supreme Court case Terry v. Ohio established the legality of “stop and frisk,” but also emphasized that stops must be based on reasonable suspicion and not used as a pretext for discriminatory enforcement. • Recent legal challenges to discriminatory “Terry stops” have resulted in court rulings limiting their use in certain circumstances, such as in New York City’s stop-and-frisk program. • Some court decisions give police wide discretion to use race as a factor in their decision-making, potentially leading to the disproportionate targeting of minority communities. • Qualified immunity is a legal doctrine that protects government officials, including law enforcement officers, from civil liability for actions taken in the course of their official duties. Critics argue that it shields police officers from accountability and allows them to violate people’s rights with impunity.

The Pledge of Allegiance promises that the United States guarantees “liberty and justice for all.” The lintel atop the United States Supreme Court building in Washington DC proclaims “EQUAL JUSTICE UNDER LAW,” but liberty is unequally distributed in the United States based on wealth and race. Justice is a © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 C. E. MacLean, J. A. Densley, Police, Prosecutors, Courts, and the Constitution, https://doi.org/10.1007/978-3-031-39082-1_7

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fleeting concept benefiting and protecting some groups while brutally harming others. The words of the Pledge emblazoned on the Supreme Court cannot be treated as relics or worse, as merely aspirational. For Black Americans especially, law enforcement represents a legacy of institutionalized racism and reinforced inequality (Alexander, 2011; Cobbina, 2019). Lawmakers, as elected representatives of the people, set the laws that made slavery, Jim Crow, separate but equal, and mass incarceration possible, but the police enforced those laws and exacted the consequences for disobeying them. Instances of frequent, unwelcome, and violent police contact throughout American history, from slave patrols to “stop and frisk” (White, & Fradella, 2016) have “tortured,” traumatized, and “terrorized” Black communities (Butler, 2014, 2017), leading generations of Black Americans to perceive that the police openly dislike them (Brunson, 2016). Police officers are entrusted with the responsibility of protecting and serving the public, and ensuring that laws are enforced fairly and equitably. However, history shows us that police enforcement practices are not always impartial and that certain groups are disproportionately targeted for enforcement action (Densley, 2021). For example, after Michael Brown, a Black man living in a majority-Black community, was shot and killed by a white police officer serving in a majority-white police force, the U.S. Department of Justice Civil Rights Division (2015) investigated. It found that officers in Ferguson, Missouri, were focused on revenue generation via civil asset forfeiture and traffic tickets, a practice known as “policing for profit” (Knepper et al., 2020). Police made a strategic choice to target passersby via speed traps and aggressively fined residents, primarily Black residents, without much consideration of whether doing so enhanced public trust or safety. According to the report, “The harms of Ferguson’s police and court practices are borne disproportionately by African Americans, and there is evidence that this is due in part to intentional discrimination on the basis of race” (p. 4). Ferguson is not an isolated case. Research finds policing for profit is a common response to budgetary shortfalls and fiscal stress (Worrall, 2001) and, in some states, laws have been written to encourage police agents to pursue profit instead of seeking the neutral administration of justice (Knepper et al., 2020). Studies also find that minority residents and communities of color are more common recipients of law enforcement action and punishment (Fording et al., 2011; Smith & Alpert, 2007). For example, Black drivers are more likely to be stopped, searched, and arrested, often on the basis of less evidence (Pierson et  al., 2020), and despite being less likely than whites to be carrying contraband (Braga et al., 2019). According to one U.S.  Department of Justice investigation into allegations of widespread police brutality in Chicago, Black people experience policing in a fundamentally different way than people living in the city’s predominantly white neighborhoods (U.S. Department of Justice Civil Rights Division and United States Attorney’s Office Northern District of Illinois, 2017). Young Black men in particular faced routine police harassment and everyday slights and indignities at the hands of officers. Rather than sending more beat officers to patrol the streets and more detectives to catch the perpetrators of shootings, the Chicago Police Department

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saturated Black neighborhoods like an “occupying force,” baiting residents and using “dangerous” and “reckless” tactics that frequently resulted in “some of the most problematic shootings” of civilians by police (U.S.  Department of Justice Civil Rights Division and United States Attorney’s Office Northern District of Illinois, 2017, pp. 30–31).

Excessive Force Police officers are tasked with enforcing the law and maintaining public safety. In fulfilling these responsibilities, they are authorized to use reasonable force when necessary. The use-of-force continuum is a framework used by many law enforcement agencies to guide officers on the appropriate level of force to use in response to different types of resistance (National Institute of Justice, 2009). The continuum typically outlines a range of force options, from verbal commands and physical control techniques to less-lethal weapons like tasers, and lethal force like firearms. While the use-of-force continuum is intended to provide officers with a clear understanding of the level of force that is appropriate in a given situation, it potentially creates a rigid and inflexible approach to policing that results in “awful but lawful” outcomes. By setting out specific levels of force, for instance, officers may feel constrained in their ability to respond to a situation in a way that is appropriate and proportionate or compelled to use force that is higher on the continuum than is necessary simply to avoid violating policy or appearing hesitant (Alpert & Dunham, 2004). Excessive force by law enforcement officers is a pervasive problem that threatens the constitutional rights and physical safety of all Americans. It can take many forms, from physical violence (e.g., punching, kicking, or striking an individual with a baton) to force that is likely to cause death or serious bodily harm, such as the use of firearms (Alpert & Dunham, 2004). At its core, police excessive force constitutes an unreasonable seizure and violates an individual’s constitutional rights. However, the Supreme Court has held that the reasonableness of a particular use of force must be judged from the perspective of a hypothetical reasonable officer on the scene, rather than with the 20/20 vision of hindsight (Graham v. Connor, U.S., 1989). By definition, therefore, the reasonableness standard is a subjective standard that is open to interpretation; any determination of whether a particular use of force was reasonable depends on the individual perceptions and beliefs of the officer involved, as well as the broader cultural and institutional norms of law enforcement. One officer may believe that the use of force was reasonable in a given situation, while another may disagree. Similarly, an officer’s interpretation of the threat posed by a suspect may be influenced by their personal biases, stereotypes, or preconceptions, or limited by a range of factors that can affect human perception and decision-­ making, including stress, fatigue, and fear (Sierra-Arvèlao, 2021).

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Officers are often required to make split-second decisions in high-pressure situations where the level of threat is unclear, which can result in mistakes or errors in judgment. In determining whether the use of force was reasonable, the court considers the severity of the crime, whether the suspect posed an immediate threat to the safety of the officers or others, and whether the suspect was actively resisting arrest or attempting to flee. In Tennessee v. Garner (U.S. 1985), the Supreme Court held that a police officer may use deadly force to prevent the escape of a fleeing suspect only if the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. However, some law enforcement officers have interpreted this case to mean that deadly force may be used against any suspect who attempts to flee, regardless of the severity of the crime or the threat posed by the suspect. Likewise, some law enforcement officers have interpreted Graham v. Connor to mean that any use of force is reasonable if it is deemed necessary to gain compliance from a suspect, regardless of the severity of the force used or the circumstances surrounding the use of force. Part of the challenge is what Sierra-Arvèlao (2021) describes as “the danger imperative” in policing, a mindset that emphasizes the need for “reasonable” officers to take immediate action to protect themselves and others in potentially dangerous situations. This mindset is often reinforced through training and the culture of law enforcement, which places a high value on officer safety and the use of (deadly) force over de-escalation and non-lethal options as a means of maintaining control. While the danger imperative can be an important tool for keeping officers safe and responding effectively to dangerous situations, it can also contribute to the use of excessive force; the emphasis on officer safety and the need for immediate action can lead to a heightened sense of threat and a diminished capacity to assess the situation accurately. Take, for example, the infamous “21-foot rule” in policing, a concept that originated from a training video produced by Dennis Tueller, a retired Salt Lake City police officer, in the 1980s (Sandel et al., 2021). The video demonstrated the distance that an attacker armed with a knife could cover in the time it took for an officer to draw and fire their weapon. Tueller used a stopwatch to time how long it took for an officer to draw their weapon and fire two rounds and found that an attacker armed with a knife could cover 21 feet in that time. The 21-foot rule was quickly adopted by law enforcement agencies across the country as a standard for the use of deadly force against individuals armed with edged weapons. Prosecutors often point to it when deciding if a police shooting was legal. The idea was that if an individual with a knife was within 21 feet of an officer, the officer could justifiably use deadly force to defend themselves. The problem is, the 21-foot rule was never scientifically validated and it has been criticized as being too broad and potentially escalating civilian encounters because it fails to take into account other factors such as the attacker’s behavior or the presence of bystanders (Sandel et al., 2021). Additionally, the rule assumes that an attacker is always able to effectively use a knife or other edged weapon, which may not always be the case. The 21-foot rule has also been criticized for contributing to a culture of fear and aggression among law enforcement officers, basically encouraging officers to view any individual within 21 feet as a potential threat, regardless of whether or not that

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individual is actually armed or poses a danger to others. When officers perceive a situation as potentially dangerous, moreover, they may be more likely to resort to force as a means of control, resulting in situations where force is used even when it is not necessary or when it exceeds what is reasonable under the circumstances. For example, an officer may use a firearm, taser, or baton to subdue a suspect who is already in custody and not posing an immediate threat.

Deadly Encounters Police-involved shootings have been a source of controversy and concern in the United States, not least because victims are disproportionately members of marginalized communities, particularly people of color and/or exhibiting signs of mental illness (Zimring, 2017). A recent study extrapolated that because the U.S. government tracks only the 400–500 homicides each year determined to be legally “justified,” more than half of all deaths from police violence from 1980 to 2018 were unreported in their data (G.B.D, 2019). Media and online sources are remarkably consistent in documenting about 1000 fatal police shootings annually, although some victims are coded as being unarmed despite being in possession of tools or toy guns that might have appeared authentic to officers (Lozada & Nix, 2019). Guns are at the root of police-involved shootings in America and not just because they are in the hands of police (Braga & Cook, 2023). While color-blind laws grant civilians unprecedented rights to own, carry, and use guns, research finds that the mere presence of guns heightens aggression in people and creates opportunities for potentially dangerous and deadly encounters. For residents of high-crime neighborhoods, many of whom are people of color, this so-called “weapons effect” contributes to an all-too-visible system of gun criminalization (Carlson, 2020). Two-thirds of people shot and killed by police were found to be carrying firearms (Cesario et al., 2018) and in 1989, the U.S. Supreme Court in Graham v. Connor (U.S. 1989) deemed it constitutionally permissible for police to use deadly force in cases where they reasonably perceive imminent and grave harm. Killings excused under this reasonable belief standard fall far short of norms in other wealthy nations—for example, the European Convention on Human Rights permits only deadly force that is absolutely necessary to achieve a lawful purpose (Zimring, 2017)—and the data show that fatal police shootings typically occur when there is a threat of violence to an officer or another citizen (Lozada & Nix, 2019). However, there have also been instances of excessive use of force, racial bias, and other factors contributing to these incidents (Nix et al., 2017). For example, the combined higher rates of gun ownership and gun homicide make many police fearful for their lives and prone to misidentify or magnify threats—like cell phones or screwdrivers in the hands of suspects—especially if those suspects are Black and the officers are under mental stress (Zimring, 2017).

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Discriminatory Enforcement Disparities do not inherently mean discrimination (Tregle, et al., 2019) and different policing outcomes partly are explained by the “law of crime concentration,” police crime focus, and spatial deployment (Weisburd, 2015), meaning that poor persons of color simply are more likely to encounter police. Controlling for a state’s population size, the overall rate of Black police shootings, Black arrest rates, violent crime rates, household gun ownership, and urban population, Mesic et al. (2018) found that, in states where Black  people experienced more racial segregation, higher incarceration rates, lower educational attainment, and wider economic or employment disparities, they were also more likely to be shot and killed by police. For every ten-point increase in a state’s “racism index,” which was comprised of these factors, there was a corresponding 24% increase in the ratio of unarmed black people killed by police compared to white people killed in the same conditions. This was true nationwide when looking at state results in aggregate, with racial segregation as the most significant predictor for this outcome (Mesic et al., 2018). In other words, the racial disparities found in police violence transcend the individual officer or police agency to include the broader policies and structures perpetuating racism in society. Nevertheless, biased policing is an integral component of the well-documented “disproportionate minority contact” that occurs throughout the entire criminal justice system (Kahn & Martin, 2016). Researchers have documented racial bias in police officers, for instance showing that racism plays a part in causing police to pull the trigger more quickly on Black suspects (Nix et al., 2017). Police officers’ concerns with appearing racist—a kind of “stereotype threat”—may also undermine the confidence they have in their inherent authority, resulting in overcompensation and more extreme force for the sake of control (Trinkner et al., 2019). In United States v. Brignoni-Ponce (U.S. 1975), the Supreme Court ruled that race cannot be the sole factor in determining reasonable suspicion for a stop or search by law enforcement. The case involved two Border Patrol agents who stopped a car near the Mexican border based solely on the driver’s “Mexican appearance.” The agents had no other reason to suspect that the driver had violated any law. The car was subsequently searched, and the agents found four undocumented immigrants. The driver, Brignoni-Ponce, was charged with transporting them but challenged the constitutionality of the stop, arguing that it was based solely on his race and therefore violated the Fourth Amendment’s protection against unreasonable searches and seizures. The Supreme Court agreed with Brignoni-Ponce, ruling that using race as the sole factor in law enforcement decisions was unconstitutional. The court found that reasonable suspicion must be based on specific, articulable facts that suggest criminal activity, and not on generalized stereotypes or assumptions about a person’s race or ethnicity. Yet, despite constitutional and statutory protections, including the Civil Rights Act of 1964, which prohibits discrimination based on race, gender, religion, and

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other protected classes, police officers have wide discretion in their enforcement practices. This discretion can lead to biased enforcement decisions, particularly in situations where officers are operating in communities that are racially and ethnically diverse. For example, the Supreme Court’s decision in Terry v. Ohio (U.S. 1968) authorizes police to “stop and frisk,” meaning they can temporarily detain someone they suspect of a crime, even “pat down” suspects they think might be armed. However, because the “reasonable suspicion” standard that authorizes stops and frisks is lenient, including vague and subjective criteria such as a person’s demeanor or clothing, the police have wide discretion in whom they stop and why (Butler, 2014). This is where discriminatory enforcement seeps in. For example, the use of stop and frisk by the New  York Police Department (NYPD) came under scrutiny for its disproportionate impact on communities of color (see White & Fradella, 2016). In 2013, the federal district court ruled in Floyd v. City of New York (S.D.N.Y 2013) that the NYPD’s use of stop and frisk was unconstitutional and violated the Fourth and Fourteenth Amendments. The court found that the NYPD had a policy and practice of targeting Black and Latinx individuals, and that the stops were not based on reasonable suspicion but instead on racial profiling. The ruling led to significant reforms in the NYPD’s use of stop and frisk, including increased training and oversight, and a reduction in the overall number of stops (White & Fradella, 2016). Additionally, in 2020, the New York State Court of Appeals ruled in People v. DeBour (N.Y. 2020) that police officers may only stop and question individuals in public when they have reasonable suspicion of criminal activity, and that a stop based on mere curiosity or hunch is unconstitutional. Discriminatory enforcement can take many forms, from racial profiling (i.e., targeting individuals based on their race or ethnicity, often without any legitimate reason), to the disproportionate targeting of low-income communities based on the perception (not data) that low-income communities are more likely to be afflicted by crime, to the over-policing of certain neighborhoods. Some law enforcement agencies simply prioritize arrests over other forms of policing, further leading to discriminatory enforcement. In Whren v. United States (U.S. 1996), the Supreme Court upheld the use of pretextual traffic stops by law enforcement—even if the stop was motivated by racial bias. The case involved two plainclothes police officers who were patrolling a high-­ crime area in Washington D.C. when they saw a car with temporary plates at a stop sign. The car waited for 20 seconds before moving, prompting the officers to pull it over. The officers found drugs in the car and arrested the occupants, Whren and Brown. Whren and Brown argued that the stop was based on racial discrimination because the officers only pulled them over because they were Black. The government argued that the stop was based on a traffic violation, thus was valid under the Fourth Amendment’s prohibition against unreasonable searches and seizures. The Supreme Court agreed with the government, ruling that as long as the officer had probable cause to believe that a traffic violation had occurred, the stop was valid, even if the officer’s true motivation was to investigate more serious criminal

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activity. The Court held that the Fourth Amendment’s “objective reasonableness” standard does not permit an inquiry into an officer’s subjective motivation for a traffic stop, which in turn, essentially permits racial profiling because it allows officers to use minor traffic violations as a pretext to stop and search anyone they suspect of anything more serious. This gives officers wide discretion to use race as a factor in their decision-making, which could lead to a cycle of discrimination, as individuals who are disproportionately targeted for minor traffic violations are then more likely to be investigated for more serious crimes, even if they have not committed any. And then there is the so-called “good-faith exception” that has its roots in the United States v. Leon (U.S. 1984). This decision held that evidence seized by police officers in “good faith” reliance on a search warrant that later turned out to be invalid may still be admissible in court. Proponents of the good-faith exception argue that it serves as a deterrent against intentional or recklessly “bad” police conduct. However, this reasoning is deeply flawed—the exception should instead focus on the vindication of constitutional rights. To begin with, the good-faith exception essentially rewards police officers for making mistakes. If an officer obtains a search warrant that later turns out to be invalid due to a mistake on their part, they can still use any evidence obtained during the search as long as they acted in “good faith.” This creates a perverse incentive for officers to cut corners and take shortcuts when obtaining warrants, knowing that even if they make a mistake, any evidence they obtain will still be admissible in court. This is hardly a recipe for responsible policing. Furthermore, the good-faith exception assumes that police officers are acting in “good faith” in the first place, despite the fact that many officers have been caught engaging in deliberate misconduct, including falsifying evidence, and lying to obtain search warrants. In these cases, the exception does nothing to protect the constitutional rights of the accused, but instead serves as a shield for the police officer’s bad behavior. Ultimately, the purpose of the exclusionary rule is to deter police misconduct and ensure that the constitutional rights of the accused are protected. The good-faith exception, however, does little to achieve these goals. Instead, it allows police officers to violate the law with impunity and undermines the fundamental principles of justice and fairness. If we truly want to uphold the Constitution and protect the rights of all citizens, we must demand that the exclusionary rule be applied without exceptions or loopholes, and that police officers be held accountable for any misconduct they engage in. In the end, discriminatory enforcement—tacitly endorsed by the U.S. Supreme Court—can lead to the disproportionate punishment of minorities and low-income individuals, which can perpetuate cycles of poverty and disadvantage, making it more difficult for these individuals to break free from the cycle of crime and incarceration (Alexander, 2011; Goffman, 2009). The over-policing of certain people and places can also lead to a breakdown of trust between law enforcement agencies and the communities that they serve. When individuals do not trust the police to do the right thing or to treat them fairly, they are less likely to cooperate with law enforcement, report crimes, or come forward as witnesses. This lack of cooperation can

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make it more difficult for the police to solve crimes and hold offenders accountable, leading to an increase in crime rates. When people do not believe that the justice system is fair or just, moreover, they may be more likely to take matters into their own hands, which can lead to an escalation of violence and crime (Leovy, 2015).

 olding Officers Accountable for Misconduct: Addressing H Police Unions and Qualified Immunity Holding police officers accountable for misconduct is a crucial aspect of maintaining the rule of law and ensuring that law enforcement officers are held to the highest standards of professionalism and integrity. However, qualified immunity is a legal doctrine that shields law enforcement officers from being held personally liable for actions they take while on the job, even if those actions violate someone’s constitutional rights (Novak, 2023). Qualified immunity is not established by a specific law or statute, but rather it is a doctrine that has been developed and refined over time through court decisions. The Supreme Court first articulated it in the case of Pierson v. Ray (U.S. 1967), where the Court held that police officers were entitled to qualified immunity from lawsuits arising from actions taken in the course of their official duties. Since then, qualified immunity has been the subject of much debate and criticism. Proponents of qualified immunity argue that it is necessary to protect government officials from frivolous lawsuits and to ensure that they can perform their duties without fear of being sued. Critics of qualified immunity argue it creates a culture of impunity among law enforcement officers because if officers know that they are unlikely to be held personally liable for their actions, even if they violate someone’s constitutional rights, they may be more likely to engage in abusive behavior. As a doctrine developed by the courts, it is ultimately up to the courts to decide how qualified immunity applies in individual cases. It also applies only to civil lawsuits, not criminal prosecutions. Still, it makes it next to impossible for victims of police misconduct to seek compensation for perceived injustices because it essentially requires that they prove an officer’s actions violated a “clearly established” constitutional right (Novak, 2023). This a very high bar to clear because to show that a right is clearly established, a victim must identify an earlier court decision in the same jurisdiction holding that precisely the same conduct under the same circumstances was illegal or unconstitutional. If no decision exists, qualified immunity protects the official by default. Thanks to the Supreme Court’s 2009 decision in Pearson v. Callahan (U.S. 2009), courts may decide cases without addressing whether the actions at issue violate the Constitution. Qualified immunity highlights one of the key challenges in holding police officers accountable for misconduct, namely, the need to balance the interests of law enforcement with the rights and interests of citizens. While policing by definition requires a certain degree of discretion and authority, as we argue throughout this

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book, citizens have a right to be protected from abusive or excessive use of force, discriminatory practices, and other forms of misconduct. To this end, all police departments should have clear policies and procedures in place for investigating allegations of misconduct, and for imposing disciplinary measures when appropriate. This can include measures such as suspension, demotion, or termination, as well as criminal prosecution in cases of serious misconduct. Part of the problem is police unions negotiate collective bargaining agreements that often include provisions making it difficult for police departments to take disciplinary action against officers, even in cases of serious misconduct (Greenhouse, 2020). For example, collective bargaining agreements often require that disputes between police officers and their departments be resolved through arbitration and arbitrators may be more sympathetic to the officers than to the department. Union contracts also may require that officers be given advance notice of any disciplinary action, or that they be allowed to appeal any discipline through a grievance process (Greenhouse, 2020). These procedures can be time-consuming and expensive, which can dissuade departments from pursuing them entirely or simply allow officers to remain on the job while their misconduct is being investigated or adjudicated. One antidote is to ensure that the investigation and disciplinary process is as transparent and accountable as possible using measures such as public reporting of disciplinary actions, civilian oversight boards, and independent investigations in cases of serious misconduct. It is important to recognize that accountability is not a one-time event, but an ongoing process. Police departments should be regularly reviewing and updating their policies and procedures, as well as conducting regular audits and evaluations of their performance. Additionally, police departments should be engaging with the communities they serve, soliciting feedback and input on issues of police accountability and working collaboratively to identify solutions. But above all, the courts need to step in. Police, “engaged in the often competitive enterprise of ferreting out crime” (Johnson v. United States, U.S., 1948, p. 14) can be expected to develop and use any crime-fighting tool and technique they are afforded. Although police should enforce the Constitution (the Supreme Law of the Land) above all others, they often do not, so the task falls to courts, the constitutionally assigned arbiters of constitutional interpretation. When the Court speaks in any case, that decision and holding is applied in thousands of similar cases that follow, meaning the Court’s burden and greatest strength is to look back at the case at bar while looking forward to all the cases yet to come. It is time for the Court and all subordinate and state courts to interpret the federal Constitution (and where appropriate, state constitutions) to give life to their true purpose: to create and structure the government while protecting the due process rights of individuals. Discriminatory enforcement based on race is unconstitutional (U.S.  Const. amends. V, XIV). Excessive force is unconstitutional as well (U.S. Const. amends. IV, XIV). And favoring the rights and interests of the majority at the expense of the rest is unjust, unethical, and equally unconstitutional. It is not sufficient for courts to leave police to their own devices by granting them wide-sweeping discretion that never quite seems to adhere to the Constitution (including objective reasonableness and totality of the circumstances formulations that no officer can parse when

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encountering a civilian in the middle of the night when the officer has little information and no time to ruminate). The courts can no longer condemn to wither everyone’s constitutional rights to be treated equally, justly, and with due process. When courts allow “awful for lawful” discriminatory enforcement, pretext, and subterfuge to flourish while allowing police to engage in excessive force, those courts are themselves complicit.

Discussion Questions 1. What is discriminatory enforcement by police, and what are some common examples of it in practice? 2. How do discriminatory enforcement practices impact communities of color and other marginalized groups, and what are the long-term effects of this type of policing? 3. What legal protections exist to prevent discriminatory enforcement by police, and how effective are these protections in practice? 4. How has qualified immunity affected the ability of citizens to seek redress for alleged civil rights violations by law enforcement officers? 5. How do international human rights norms and treaties address discriminatory enforcement by police, and how do these standards compare to those in the United States?

Part III

Prosecutor Misconduct and Supreme Court Complicity

Chapter 8

Prosecutors’ Obligations for Post-­conviction Integrity and Due Process Review

Summary • Prosecutors’ powers pretrial, in trial, and on appeal are monumental and momentous. • Prosecutors must balance their duty to seek justice for victims with their obligation to ensure that defendants receive a fair trial and that the evidence is reliable. • Wrongful convictions can occur due to errors in eyewitness identification, false confessions, unreliable forensic evidence, and other factors. • Innocence projects use DNA testing, investigation of new evidence, and legal advocacy to overturn wrongful convictions and address systemic issues within the criminal justice system that contribute to wrongful convictions, such as inadequate legal representation. • Conviction Integrity Units are specialized teams within prosecutors’ offices that investigate claims of wrongful convictions and work to prevent future injustices.

Prosecutors have sweeping power to be procedurally just or to be vindictive and vile. That power, well harnessed and targeted, can be a prime driver in achieving real and lasting criminal justice reform. In the meantime, unjust, deceitful, inequitable, and vengeful prosecutors, though the minority, are awful but unlawful. This is a call to action: Rev. Dr. Martin Luther King, Jr’s “arc of justice” “must be co-­ created by those of us who care about justice” (Redmond & Osler, 2021, p. 202). Prosecutors’ powers pretrial, in trial, and on appeal are monumental and momentous. But prosecutors’ obligations do not end at entry of the plea or verdict, or at

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 C. E. MacLean, J. A. Densley, Police, Prosecutors, Courts, and the Constitution, https://doi.org/10.1007/978-3-031-39082-1_8

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sentencing or conclusion of the appellate process. Indeed, prosecutors are obligated to seek justice, not merely convictions, at every stage of each case, including post-­ conviction proceedings. That ongoing responsibility flows from prosecutors’ “breathtaking” power (Covert, 2021, p. 187) in the criminal justice system and process (Engen & Steen, 2000). Robert Jackson, a former United States Attorney General and Nuremburg prosecutor, who later ascended to the United States Supreme Court, described prosecutorial power in a speech to federal prosecutors: The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations… . The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a ­conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst… . The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentle man. And those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kind ness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility. (Jackson, 1940, pp. 3, 6)

Supreme Court Justice Sutherland, writing for a unanimous Court, stuck a similar tone: The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. (Berger v. United States, U.S., 1935)

Largely Unchecked Prosecutorial Power In Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform, Fordham law professor, John Pfaff (2017) argues that the popular belief that the “war on drugs” is the main driver of mass incarceration in the United States is flawed. Instead, Pfaff argues that the real cause is prosecutor power. While the number of drug arrests has risen, they account for only a small fraction of the growth in the prison population. Most of the increase in incarceration rates can be attributed to the prosecution of violent crimes, which has risen sharply since the 1980s (Pfaff,

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2017). And, in this same timeframe, prosecutors have gained increasing power, thanks in part to changes in laws that have given them more discretion and authority. They have used this power to pursue more and longer prison sentences for defendants, with a focus on punishment rather than rehabilitation, and as a result, more people are being sent to prison for longer periods of time. Prosecutors do this, Pfaff (2017) argues, because they are elected to office and must therefore appeal to voters in order to maintain their positions. This can lead to a focus on being seen as “tough on crime,” even if it is not necessarily the most effective approach to reducing crime or addressing underlying social issues. As Veynman and Fondacaro (2022) write, “scholars and practitioners alike are growing increasingly concerned that prosecutorial discretion has grown unfettered, giving prosecutors far more power than would be expected in a balanced system.” In the modern sentencing guidelines era coupled with mandatory minimum sentences and the distributed nature of prosecutorial power over 2300 virtually independent elected prosecutors’ offices across the United States (BJS, 2022), prosecutorial power has soared. And that prosecutorial power impacts criminal justice processes and decisions upstream and down (Vance, 2020, p. 234). Police are lulled into feeding into the powerful prosecutorial maw, defendants’ ability to engage in sentence bargaining is curtailed, and even judicial power bends to the prosecutors’ charging and negotiation decisions. First, let us not forget the vast majority of criminal cases never even go to trial, largely because trials are costly and time-­consuming. Instead, the prosecutor and the defendant negotiate a mutually acceptable plea deal, which typically involves the defendant pleading guilty to a lesser charge in exchange for a more lenient sentence. The primary purpose of plea bargaining is to expedite the legal process and reduce the burden on the court system; it is not primarily motivated by serving justice. Plea bargains may result in innocent people pleading guilty to crimes they did not commit; pressured to accept a plea, even if they are innocent, to avoid the possibility of a harsher sentence if they are convicted at trial (Pfaff, 2017). By doing so, defendants give up their right to a trial by jury, their right to confront their accusers, and their right to present evidence in their own defense. Instead, they rely on the prosecutor (and judge) to determine their guilt and to decide on an appropriate sentence. Once the prosecutor has decided whom to charge and with which crime(s), however, those crimes in many jurisdictions carry presumptive or advisory sentences pursuant to sentencing guidelines. In other words, when the prosecutor makes a charging decision, the prosecutor, in effect, decides the sentence upon conviction as well. That prosecutorial fiat fatally limits defendants’ bargaining positions to begin with and prospects and binds or at least boxes in judicial discretion as well (Vaynman & Fondacaro, 2022, p. 34). Prosecutorial power is sprawling and largely unchecked; when “prosecutors don’t exercise their authority with care, wrongful and unjust convictions occur, and the system fails… [and] prosecutors’ mistakes and misconduct shake the system in a way that the actions of others do not” (Gantt & Hurley, 2022). The prosecutor is the most powerful voice in every courthouse.

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 ules and Ethics Codes Applicable to Prosecutors Are R Aspirational Only That immense prosecutorial power is amplified by the twin facts that prosecutorial decisions are largely private decisions and there is little to no meaningful regulation of prosecutorial discretion. Although the American Bar Association Model Rules of Professional Conduct (ABA, 2008) contain some required provisions, many are aspirational only and they are certainly careful to note the ABA Model Rules cannot be used to support civil causes of action against those attorneys failing to adhere: Some of the Rules are imperatives, cast in the terms “shall” or “shall not.” These define proper conduct for purposes of professional discipline. Others, generally cast in the term “may,” are permissive and define areas under the Rules in which the lawyer has discretion to exercise professional judgment. No disciplinary action should be taken when the lawyer chooses not to act or acts within the bounds of such discretion… . Many of the Comments use the term “should.” … Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. In addition, violation of a Rule does not necessarily warrant any other nondisciplinary remedy … The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. (ABA, 2008, preamble)

More starkly, the two national ethics and conduct codes directly applicable to prosecutors are expressly aspirational and non-binding; the American Bar Association Standards for Criminal Justice: Prosecution Function (ABA, 2017) and the National District Attorneys Association’s National Prosecution Standards (NDAA, 2023) ethics rules and codes purport to guide prosecutor conduct but expressly make their guidance aspirational and thus are not truly binding on prosecutors or on anyone else within or without the criminal justice system. The Standards for Criminal Justice: Prosecution Function (ABA, 2017) provide: These Standards are intended to provide guidance for the professional conduct and performance of prosecutors. They are written and intended to be entirely consistent with the ABA’s Model Rules of Professional Conduct, and are not intended to modify a prosecutor's obligations under applicable rules, statutes, or the constitution. They are aspirational or describe “best practices,” and are not intended to serve as the basis for the imposition of professional discipline, to create substantive or procedural rights for accused or convicted persons, to create a standard of care for civil liability, or to serve as a predicate for a motion to suppress evidence or dismiss a charge. (ABA, 2017, Standards 3-1.1(b))

The NDAA National Prosecution Standards (NDAA, 2023) provide: These standards are intended to supplement rather than replace the existing rules of ethical conduct that apply in a jurisdiction… . These standards are intended to be guides for prosecutors in the day-to-day performance of the prosecution function… . These standards are not intended to: (a) be used by the judiciary in determining whether a prosecutor committed error or engaged in improper conduct; (b) be used by disciplinary agencies when passing upon allegations of violations of rules of ethical conduct; (c) create any right of action in any person; or (d) alter existing law in any respect.” (NDAA, 2023, Introduction)

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 DAA (2023) Sets Prosecutors’ Aspirational Quests N for Handling Post-conviction Matters Pursuant to NDAA (2023) National Prosecution Standards, prosecutors have an ethical obligation to defend convictions: “The prosecutor should defend a legally obtained conviction and a properly assessed punishment unless new evidence is received that credibly calls the conviction or sentence into question. A prosecutor has the duty, consistent with the responsibility as a minister of justice, to require the convicted person to meet the applicable burden of proof to obtain relief on both appeal from or collateral attack of a conviction” (NDAA, 2023, Standard 9-1.3). The NDAA Standards also purport to lay out the prosecutor’s discovery obligation when a claimant seeks post-conviction relief: “A prosecutor shall provide discovery to the defense attorney during post-conviction proceedings where: a. Required to do so by law, court order or rule; b. The evidence is constitutionally exculpatory; or c. He or she reasonably believes that the convicted person’s claim of actual innocence is supported by specific factual allegations which, if true, would entitle the convicted person to relief under the legal standard applicable in the jurisdiction, and the evidence relates to that claim” (NDAA, 2023, Standard 9-1.7). Note how the focus is on actual innocence and not procedural or manifest justice or miscarriages of justice: “constitutionally exculpatory … claim of actual innocence is supported by specific factual allegations.” The commentary to NDAA Standards Rule 9 continues that focus on actual innocence: In those extremely rare instances in which a prosecutor is presented with credible evidence that a convicted person may actually be innocent, these standards set forth his or her responsibilities that are consistent with the role of the prosecutor as a minister of justice. In fulfilling that role, the prosecutor must strike a balance between his or her responsibility to see that valid convictions are upheld and the duty to see that the innocent are protected from harm … . Where a prosecutor believes a convicted person is actually innocent, the prosecutor should support the release of the person if the person is incarcerated solely on that charge and support the reversal of any conviction for the crime of which the person was erroneously convicted.” (NDAA, 2023, commentary to Rule 9, emphasis added)

That focus on actual innocence flies in the face of modern conviction integrity and innocence project efforts that focus on far broader categories of wrongful convictions, including those based on faulty science, officer error, constitutional flaws, and due process shortcomings.

Prosecutors Must Be Quasi-Judicial Ministers of Justice Now that those caveats and limitations are clarified and the aspirational natures of the ABA (2017) and NDAA (2023) codes are underscored, they then turn to their substance in guiding prosecutor conduct. Both prosecutorial ethics codes (ABA, 2017; NDAA, 2023) and the ABA Model Rules (ABA, 2008) speak of prosecutors’

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roles as quasi-judicial, seeking justice and not simply convictions—the criminal justice system is paradigmatically adversarial, but prosecutors are expected to hold themselves, somehow, above that fray. “The prosecutor is an administrator of justice, a zealous advocate, and an officer of the court… . The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict” (ABA, 2017, Standards 3-1.2(a)-(b)). “The prosecutor is an independent administrator of justice. The primary responsibility of a prosecutor is to seek justice, which can only be achieved by the representation and presentation of the truth. This responsibility includes, but is not limited to, ensuring that the guilty are held accountable, that the innocent are protected from unwarranted harm, and that the rights of all participants, particularly victims of crime, are respected” (NDAA, 2023, Standard 1-1.1). The phrase “minister of justice” appears three times in the National Prosecution Standards (NDAA, 2023, Standard 9-1.3 and commentary to Standards Rules 7 and 9). The ABA Model Rules of Professional Conduct (ABA, 2008) have been adopted in whole or in part in all U.S. jurisdictions, and apply to all attorneys engaged in the practice of law, but Rule 3.8 expressly applies to and adds some rather substantial obligations for prosecuting attorneys. Prior to 2008, Rule 3.8 provided: Rule 3.8: Special Responsibilities of a Prosecutor The prosecutor in a criminal case shall:

(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause; (b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel; (c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing; (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; (e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:

(1) the information sought is not protected from disclosure by any applicable privilege; (2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and (3) there is no other feasible alternative to obtain the information; (f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law

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enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule. (ABA, 1983) In 2008, the ABA Model Rules clarified and broadened prosecutors’ post-­conviction obligations by adding ABA Model Rules 3.8(g)–(h).

2 008 ABA Model Rules Amendment Clarified Prosecutor Obligations Post-conviction In 2008, the ABA Model Rules of Professional Conduct (ABA, 2008), “for the first time, enumerated a prosecutor’s ethical duties in the face of evidence of a possible wrongful conviction. This development further cemented the duty of prosecutors to seek justice and not merely convict” (Griffin & Mason, 2022, p. 1011). The amendment added Rule 3.8(g)–(h), which provide: (g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:

(1) promptly disclose that evidence to an appropriate court or authority, and (2) if the conviction was obtained in the prosecutor’s jurisdiction,



(i) promptly disclose that evidence to the defendant unless a court authorizes delay, and (ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.



(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction. (ABA, 2008) Note that here, too, the ABA Rules focus on actual innocence: “reasonable likelihood that a convicted defendant did not commit an offense … convicted of an offense that the defendant did not commit … convicted of an offense that the defendant did not commit” (ABA, 2008, Rule 3.8(g)–(h)). The ABA Standards (ABA, 2017), however, include a broader view of post-conviction situations where prosecutors should step in: “The prosecutor should conduct a fair evaluation of post-trial motions, determine their merit, and respond accordingly and respectfully. The

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prosecutor should not oppose motions at any stage without a reasonable basis for doing so… . The prosecutor has a duty to defend convictions obtained after fair process. This duty is not absolute, however, and the prosecutor should temper the duty to defend with independent professional judgment and discretion. The prosecutor should not defend a conviction if the prosecutor believes the defendant is innocent or was wrongfully convicted, or that a miscarriage of justice associated with the conviction has occurred” (ABA, 2017, Standards 3-7.1, 3-8.1) (emphasis added). The NDAA Standards and the ABA Standards presage today’s growing focuses on conviction integrity review and progressive prosecution, which target not just factual innocence but also wrongful convictions, constitutional error, egregious government and “bad actor” misconduct, evolving forensic sciences, sentinel event reviews, and a wide array of miscarriages of justice in addition to credible claims of actual innocence. That evolution coincided with the growth of innocence projects that has now begun to ripen into conviction integrity units and conviction review units within some prosecution offices.

 he Growth of the Wrongful Conviction T and Innocence Movements Innocence projects, the National Registry of Exonerations, criminal appeals clinics, and other efforts across the country, including in a growing number of prosecutors’ offices, strive to identify and rectify wrongful convictions and other miscarriages of justice in criminal cases. Wrongful conviction research and advocacy began in earnest in the mid-1900s (Borchard, 1932), and as powerfully documented by Bryan Stevenson’s Equal Justice Initiative, it has led to the exoneration of many wrongly convicted individuals, some of whom had been on death row (Stevenson, 2015). However, much more remains to be accomplished. The National Registry of Exonerations has identified and chronicled the exoneration of nearly 3300 wrongfully convicted persons since 1989, who had served a total of over 29,000 years in prison for crimes they had not committed (National Registry of Exonerations, 2022b). The Registry reports that those wrongful convictions arose from a combination (overlap, caused by multiple factors, yields a total over 100%) of mistaken eyewitness identification (29%), perjury or false accusation (66%), false confession (12%), false or misleading forensic evidence (20%), and official misconduct (63%) (National Registry of Exonerations, 2022a). Three of the 2021 exonerees had been sentenced to death before their exonerations (National Registry of Exonerations, 2022a). Prosecutors are not responsible for all these wrongful convictions, but “even when prosecutorial misconduct is not the driving force behind wrong convictions, prosecutors can-and should-be part of a comprehensive solution that reduces the likelihood of wrongful convictions” (MacLean et al., 2015, p. 152). As discussed above, the ABA Criminal Justice Standards-Prosecution Function 3-8.1 provide that

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“The prosecutor has a duty to defend convictions obtained after fair process… . The prosecutor should not defend a conviction if the prosecutor believes the defendant is innocent or was wrongfully convicted, or that a miscarriage of justice associated with the conviction has occurred” (ABA, 2017, Standard 3-8.1). Yet, too many prosecutors grasp firmly onto past convictions even in the face of clear, even overwhelming, exonerating evidence. That is a recipe for miscarried justice and must be eliminated in every prosecutor’s office. There is no need or justification to tenaciously defend convictions no longer supported by evidence, law, or reason, or where the purposes of punishment in an individual case have been achieved. Justice and the social contract require much more. Supporting suspect convictions, eschewing progressive prosecution principles (Baselon, 2019), restricting post-conviction review to factual innocence cases only (Beety et  al., 2023), ignoring or opposing supported post-conviction requests for DNA (d’Este & Yucktman, 2023), opposing legislation to create conviction integrity units (Bilyeau, 2021; Green, 2023), ignoring requests for relief when sentencing goals and justifications have been realized or when sentences are no longer fair and just (Barry et al., 2020; Blout & Reisig, 2023; Miller, 2022a), and the like may be lawful—for now—but they are awful. Each is addressed below before concluding with the hope and promise of conviction integrity units.

Prosecutors Supporting Suspect Convictions Prosecutors, like most attorneys, want to win. They pursue cases and charges they can and should win then plea bargain to ensure the “victory.” Then, in the post-­ conviction sphere, much of the effort is invested in protecting the plea, verdict, or sentence in post-conviction relief motions or on appeal. That all seems quite unremarkable at first glance. Then imagine a long-forgotten case that you, the prosecutor, “won” at trial or by guilty plea years before, but now the local innocence project or other defense representative comes to you—or worse, comes to your boss—and argues they want to re-test the DNA, the case was flawed, the prosecutor committed misconduct, and the conviction should be vacated. That could be an extraordinarily tough sell for many prosecutors. After all, “the law favors repose in criminal violations” (Toussie v. United States (U.S. 1970)—let the sleeping dogs lie—why dig up old cases! At that juncture, many prosecutors have been and will continue to be reticent to open Pandora’s Box (Green, 2023). While the law favors repose principle promotes finality and certainty in legal proceedings, it can lead to lawful but awful injustice when it prevents legitimate claims from being heard, or correction of errors made during trial proceedings that may have affected the outcome of a case, or when new evidence emerges after a decision has been made. And as discussed above, the rules and codes guiding prosecutors now make clear that prosecutors must—as an ethical matter—give good faith consideration and thought to petitions for post-conviction relief of convictions and sentences whether they involve colorable claims of factual innocence or claims of miscarriage of justice and due process violations. A step in the right direction.

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 rosecutors Eschewing or Embracing Progressive P Prosecution Principles Starting in the 2010s, some candidates for elective prosecutor office began running on a platform of “progressive prosecution” (Baselon, 2019; Didwania, 2022). Some of these progressive prosecutors won at the ballot box and operationalized, to one degree or another, their campaign promises and principles. Although it is not possible to precisely define “progressive prosecutors” and the group is far from monolithic, some of their principles and practices are held largely in common. Many focused on declining to charge low-level, non-violent offenses as felonies or declining to charge them at all. Many fostered restorative justice and diversion options. Many focused on declining to slavishly follow weight thresholds in drug case charging decisions. Many strove to reduce sentence and probation supervision lengths. Some focused on bail reform and death penalty reform (Sklansky, 2021). Others focused on eliminating life without parole sentencing for youthful offenders (Levine, 2020, p. 172). Many tried affirmatively and intentionally to reduce race-­ based disparities in charging and disposition decisions (Fairfax, 2021; Mitchell et al., 2022, p. 558). Many have lauded the progressive prosecutor movement (if that accurately describes the observations). Yet others have found the effort to have had minimal impact (Mitchell et al., 2022, p. 560) or to be more salesmanship or politics than substance. Some argue “most progressive prosecutors have less ambitious goals than wholesale transformation of the criminal legal system. They are mainly reformers rather than radicals” (Butler, 2022, p. 1984). “Progressive prosecutors, just like other prosecutors, likely spend much more of their work hours strategizing about winning cases than reforming the system” (Butler, 2022, p. 1993). “[P]rogressive prosecutorial reforms have not always been as effective as hoped at reducing incarceration … [because] prosecutorial reforms sometimes replicate lenient treatment that was already happening” (Didwania, 2022, 25). The impacts of progressive prosecution at the small scale seem to demonstrate they have achieved some of their intended reform. The progress has been positive, but slow and spotty (Mitchell et al., 2022). Progressive prosecution may or may not mature into a trend, but as of 2022, just 15% of the U.S. population has ever been served by a “progressive prosecutor” (Didwania, 2022, Appendix).

 rosecutors Restricting Post-conviction Review to Factual P Innocence Cases Only Even those prosecutors willing to review past cases too often consider only cases with plausible claims of factual innocence and decline for review cases that might generally be categorized as miscarriages of justice or substantial due process violations in the absence of a claim of factual innocence. Of course, the criminal justice

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system must be fair for all—guilty and innocent alike—but it is easier for many prosecutors to consider leniency or even vacation of conviction for those with valid claims of factual innocence. Finally, as discussed above, even the Rules and Codes guiding prosecutors seem to direct most of their attention and provisions on factual innocence situations. As the U.S. Supreme Court held, “after a conviction, the prosecutor also is bound by the ethics of his office to inform the appropriate authority of after-acquired or other information that casts doubt upon the correctness of the conviction” (Imbler v. Pachtman, U.S., 1976, p.  427, note 25). The federal Second Circuit Court of Appeals underscored prosecutors’ constitutional obligation to rectify wrongful convictions, when it held, “whenever a municipality through its agents, servants or employees acts ‘intentionally or recklessly’ to prevent a petitioner post-conviction from ‘vindicating his liberty interest’ pursuant to a newly discovered evidence of innocence statute [in that case, destroying DNA evidence], a violation of petitioner’s Fourteenth Amendment right to due process can occur” (Newton v. City of New York, Second Circuit 2016, p. 151). Focusing on factual innocence cases only, however, ignores a great sea of cases where justice was not served (Green, 2023), including: (1) mass claims related to numerous cases all compromised by bad acts of bad actors in the criminal justice system (forensic analysts or police, for example); (2) mass claims related to the evolution of forensic science or rejection of forensic techniques once deemed reliable (e.g., accident reconstruction, arson investigation, bite mark analysis, blood spatter analysis, forensic etymology, fiber comparisons, handwriting comparisons, DNA science, DNA mixtures analyses, even fingerprinting, etc.) (Wicoff, 2019); (3) cases with cumulative errors rendering a new trial manifestly required on due process grounds (Beety et al., 2023); (4) substantial constitutional violations (Brady v. Maryland (U.S. 1963); and others. Progressive prosecutors may have limited impact if they shy away from these compromised cases of injustice.

 rosecutors Ignoring or Opposing Well-Supported P Post-­conviction Requests for DNA An increasing number of jurisdictions (over 40 as of 2023) have been statutorily removing barriers to defendants’ post-conviction access to DNA evidence for re-­ testing. In the right cases, DNA testing can be nearly dispositive in ruling in or ruling out the source of biological material recovered from the victim or at the scene. “Technological change, in particular forensic DNA technology, offers the promise of correcting past injustices” (d’Este & Yucktman, 2023. p.  1). In a stunningly detailed empirical analysis, d’Este and Yuchtman (2023) found that these new DNA laws have accelerated exonerations, especially of Black Americans, by reducing the costs of exploring DNA exoneration options; “in the absence of DNA laws, around 100 wrongfully convicted Black Americans would have spent the rest of their lives in prison [and would have served over 1,800 additional years imprisoned]” (d’Este & Yuchtman, 2023, p.6).

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 rosecutors Ignoring Requests for Relief When Sentencing P Was Not Fair and Just Post-conviction relief efforts often focus on whether the conviction was fair and just, but in some cases, although the conviction was just, the sentencing was not far and just when it was executed or is no longer fair and just years or decades later (Barry et al., 2020). Prosecutors are often reluctant to address sentencing mitigation years after the case has been concluded. Nonetheless, post-conviction reviews of convictions and sentences are both required to secure justice in some criminal cases (Blout & Reisig, 2023). One commentator has suggested that progressive and other prosecutors could use the “dormant grand jury clause” to convene a grand jury to consider recommending revision of executed sentences that were or have become unjust (Miller, 2022a).

 oward Justice: Creating and Nurturing Conviction Integrity T Units (“CIUs”) in Prosecutors’ Offices A potentially major role prosecutors could play in post-conviction review of convictions and sentences involves the creation and nurturing of conviction integrity units (sometimes referred to as conviction review units) within each prosecution office. Such units exist to generate their own leads of cases in need of post-conviction review and respond to external requests for review. Many prosecutors and prosecution offices have not greeted the conviction integrity unit (“CIU”) concept with open arms (Bilyeau, 2021; Green, 2023; Scheck, 2017). Some prosecutors have even actively fought efforts to legislatively enable CIUs (Green, 2023). Nevertheless, the CIU concept has launched in some prosecution offices and has experienced strong if early growth so far. CIUs’ national inroads, however, are limited to date. There were only two CIUs in the United States in 2007 (Eisen & Krinsky, 2021); as of April 2023, there were 96 CIUs (National Registry of Exonerations, 2023). That is an increase of nearly six CIUs per year, but with 2300 prosecution offices in the United States (BJS, 2022), and only 96 CIUs, only 4% of all U.S. prosecution offices have a CIU. Finally, of those 96 existing CIUs, only 44 have ever recorded even a single exoneration (National Registry of Exonerations, 2023). Perhaps there is some truth to the argument that some prosecutors who have touted CIUs have apparently treated them as campaign fodder, cosmetics (Gantt & Hurley, 2022, p. 828), or “a brand name that has good public relations value for an elected official” (Scheck, 2017, pp. 705–706). Just as obviously, “like other internal reforms, the biggest problem with conviction integrity units is that the prosecutor offices with the most need—offices with a reputation for wrongful convictions or bad actors—are the least likely to create conviction integrity units, and if they do, are the least likely to conform to best practices” (Gantt & Hurley, 2022, p. 855).

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That notwithstanding, some prosecution offices have embraced CIUs broadly; indeed, most CIU exonerations (64% as of 2018) had come from just two counties (Harris County [Houston], Texas, and Cook County [Chicago], Illinois). And fully 81% of the CIU exonerations had come from just four counties (Harris, Cook, Kings [Brooklyn, New  York], and Dallas) (National Registry of Exonerations, 2019). Other countries have adopted or are planning initiatives similar to CIUs but nationwide, for example, the Criminal Court Review Commission in the United Kingdom (Scheck, 2017, p.  710), and the Miscarriages of Justice Commission in Canada (Leonetti, 2022). Finally, prosecution offices in the United States that do not maintain a CIU can nonetheless adopt many CIU principles and practices as part of day-­ to-­day operations (Webster, 2020, p. 1019); some successes are already apparent in that regard (Findley et  al., 2020; Redmond & Osler, 2021). And Barry Scheck (2017, p. 710) queried, “Why don’t we have a federal entity … which investigate[s] wrongful convictions like the National Transportation and Safety Board (NTSB) investigates plane crashes or train derailments?” Committed CIU counties and commentators have amassed a robust set of best practices for CIUs (e.g., Quattrone, 2022), as reflected in grand categories below with reference works that directly supported each: Independent • Direct report to elected prosecutor with final decision authority (Fair and Just Prosecution, 2017; Hollway, 2016; PCE, 2020). • Create a CIU culture led by top management (MCIWG, 2021). • Led by experienced, trusted, prosecutor (Fair and Just Prosecution, 2017; Hollway, 2016; PCE, 2020). • Include outside defense expert(s) and/or external advisory board to help prevent confirmation and cognitive biases (Fair and Just Prosecution, 2017; Hollway, 2016; PCE, 2020). • Appropriate experienced attorney staffing levels (Fair and Just Prosecution, 2017; Hollway, 2016). • Appropriate support staffing levels (Hollway, 2016). • Sufficient training and refreshers (Hollway, 2016; MCIWG, 2021). • Exclude personnel who worked on cases now under review (Hollway, 2016). • Clear written policies regarding handling and reporting official misconduct and criteria for review (Fair and Just Prosecution, 2017; Hollway, 2016; PCE, 2020). • Independent, collaborative, non-adversarial review process (Doyle, 2019; MCIWG, 2021). • Avoid combining CIU and prosecution office’s appellate unit—CIU should be independent (Fair and Just Prosecution, 2017; MCIWG, 2021; PCE, 2020). • Establish a list of “bad actors,” “problematic actors,” and law enforcement misconduct (MCIWG, 2021). • Consider and mitigate morale fallout from CIU initiation and actions (PCE, 2020).

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Flexible • Accept all cases for review that have plausible or colorable claim of factual innocence (Hollway, 2016). • Provide procedural report for fact-based case reviews (Hollway, 2016). • Review all petitions on their factual merits (Hollway, 2016). • Permit review even if sentence complete (Fair and Just Prosecution, 2019; Hollway, 2016; Innocence Project, 2015). • Permit review even if the conviction resulted from a guilty plea (Fair and Just Prosecution, 2019; Hollway, 2016; Innocence Project, 2015). • Review cases for due process claims (ineffective assistance of counsel, newly discovered evidence, official misconduct, etc.) (Hollway, 2016; Innocence Project, 2015; PCE, 2020). • Allow review of misdemeanors, as well (Fair and Just Prosecution, 2019). • Consider group reviews when bad actors or bad forensic science are involved (Innocence Project, 2015; PCE, 2020). • Allow resubmissions if additional credible evidence is developed (Hollway, 2016). • Refer credible claims of official misconduct to independent reviewers (Innocence Project, 2015). Transparent • Vacate conviction when there is clear and convincing evidence of actual innocence (Hollway, 2016). • Vacate conviction when the interests of justice lead CIU to believe current admissible evidence no longer supports a conviction beyond a reasonable doubt (Hollway, 2016). • Consider re-charging only if there is substantial evidence of guilt (Hollway, 2016). • Consider time served and other equity and Code/Rule factors in making re-­ charging decision (Hollway, 2016). • Encourage open communication between CIU and petitioner/claimant (Hollway, 2016). • Use open file policy and encourage defense counsel to reciprocate including waiver of attorney-client and work product privileges (Hollway, 2016; Innocence Project, 2015; PCE, 2020). • Make all physical evidence available for testing by CIU or petitioner/claimant (Hollway, 2016). • Provide free testing of evidence that may yield conclusive evidence of innocence (Hollway, 2016). • Publish clear, public, written CIU policies and procedures (Hollway, 2016; Innocence Project, 2015). • Engage a victim advocate to coordinate and communicate with petitioners/ claimants and communicate with victim (Hollway, 2016; PCE, 2020).

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• Track and report CIU activity and actions at least annually (Fair and Just Prosecution, 2017; Fair and Just Prosecution, 2019; Hollway, 2016; Innocence Project, 2015; PCE, 2020). • Follow Model Rule 3.8(g)–(h) notice to defendant (petitioner/claimant) (Doyle, 2019). • Support or create compensation fund and related process for those wrongfully convicted (Fair and Just Prosecution, 2019; Gutman, 2022; Gutman & Sun, 2019). Preventative • Conduct a root cause analysis separate from the CIU when conviction or sentence was recommended for change (Fair and Just Prosecution, 2017; Hollway, 2016; Innocence Project, 2015; PCE, 2020). • Conduct sentinel event reviews (Fair and Just Prosecution, 2017; Innocence Project, 2015; MCIWG, 2021). • Identify improvements to practices, policies, and procedures for each stakeholder (Hollway, 2016). The CIU roadmap is paved with these best practices. And the need is clear. “In the modern era, a prosecutor office that conducts conviction review acknowledges that the criminal justice system, like all human systems, is not immune from error. In the face of that reality, a prosecutor office that adopts a CRU or a conviction review process demonstrates its dedication to reaching its ultimate aim of achieving justice in every case” (PCE, 2020, p. 59). CIUs “demonstrate to the public that criminal justice system actors, specifically prosecutors, are invested in ensuring a fair and just process that addresses injustices present within the system, which should increase confidence in the system” (Saber et al., 2022, p. 267). Ignoring unjust and wrongful convictions or sentences is awful but lawful, but we are not powerless to make a difference and improve the quantum of justice and quality of criminal justice for all. All this should be done in the context of limiting prosecutorial power in general, ensuring greater fairness and justice for defendants (Pfaff, 2017). As this chapter showed, there are clear guidelines that define the prosecutor’s role, their ethical responsibilities, and the limits of their power; we need them to be less aspirational and more inspirational. We can also level the playing field for defendants. Public defenders are often underfunded and overworked, which can lead to a lack of adequate representation and an overreliance on plea bargaining. Funding is needed to close this gap. Open file discovery could at the same time require prosecutors to disclose all unprivileged information to the defense, preventing them from hiding evidence that could exonerate the accused or weaken their case. And an independent committee composed of individuals from the legal community, civil rights organizations, and members of the public could review the conduct of prosecutors and hold them accountable for any misconduct or abuse of power. Taken together, sensible limits on prosecutorial power are essential in the fight for a fair and just system that is less awful and more lawful.

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Discussion Questions 1. What ethical considerations should prosecutors take into account when making decisions in criminal cases? 2. What are some common causes of wrongful convictions, and how can prosecutors help prevent them? 3. What can be done to increase public awareness and engagement with issues related to prosecutorial power and wrongful convictions? 4. What is a Conviction Integrity Unit, and how does it work to prevent and correct wrongful convictions? 5. What measures can be taken to hold prosecutors accountable for misconduct or abuse of power?

Chapter 9

Plea Bargaining: Ascendancy and Improper Prosecutorial Leverage and Deceit

Summary • Plea bargaining has become the primary method of resolving criminal cases in the United States, with over 86–98% of state and federal cases being resolved through negotiated plea deals. • Criminal jury trials have been replaced by negotiated guilty pleas, rendering constitutional guarantees such as the right to a fair trial and to confront one’s accusers largely inapplicable to plea negotiations. • Legislated sentencing laws such as three-strikes laws, mandatory minimum sentences, and sentencing guidelines create vast prosecutorial power, particularly at the plea bargaining stage, giving prosecutors immense bargaining advantages and unfair leverage to coerce defendants into pleading guilty. • To gain leverage over defendants, prosecutors will charge suspects with more crimes than warranted, withhold evidence, allow false testimony, and pressure witnesses, as well as require defendants to waive various rights, including the right to appeal or see evidence before entering a guilty plea. • Prosecutors are guided by standards from the American Bar Association and National District Attorneys Associations, but there is a discrepancy between these standards and prosecutors’ legal obligation to disclose all evidence or information known to them that may negate the guilt of the accused or mitigate the offense. • The American Bar Association’s Plea Bargain Task Force has devised principles aimed at ensuring transparency and fairness in plea bargaining.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 C. E. MacLean, J. A. Densley, Police, Prosecutors, Courts, and the Constitution, https://doi.org/10.1007/978-3-031-39082-1_9

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Legislatures and courts have both played a role in magnifying prosecutor power to unfairly leverage guilty pleas from criminal defendants—some of them factually innocent. Legislatures changed the power balance in criminal cases by enacting three-strikes laws, Draconian drug sentencing, mandatory minimum sentencing, long sentences for property and violent crimes, and mandatory and advisory sentencing guidelines schemes that give inordinate static value to criminal histories that disfavor defendants of color. Appellate courts cemented that legislated power shift by deferring to sentencing judges and legislated statutory and sentencing approaches under the guise of states’ rights. Today, that prosecutorial leverage has yielded a criminal justice system that is fueled by guilty pleas and not by the Sixth Amendment’s trial guarantee: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence” (U.S. Const. amend. VI).

Ascendancy of Plea Bargaining Plea bargaining by the early part of the twenty-first century has virtually replaced jury trials as the terminus for nearly all criminal cases in U.S. federal and state courts. Some 94–97% of state criminal cases and 86–98% of federal cases are resolved by negotiated plea rather than a trial (ABA, 2023, note 2, citing Gramlich, 2019; Alkon, 2014, p. 562; Hashimoto, 2008, p. 949). Therefore, “the negotiation of a plea bargain … is almost always the critical point for a defendant” (Missouri v. Frye, U.S. 2012, p.  1407). And that, as currently practiced, is awful but lawful, because prosecutorial power in plea bargaining is virtually unlimited and unchecked (Barkow, 2009), negotiations are conducted in secret with even the defendant often not in the room as the plea deal is struck, criminal defense is understaffed and underfunded, trial penalties coerce pleas (King et al., 2005), and Draconian sentencing schemes mortally wound defendants’ free choice such that even factually innocent defendants choose a negotiated and certain guilty plea as a better option than an uncertain trial and sentencing. With the rise of plea bargaining, which is notoriously shrouded in secrecy, power has shifted away from the judiciary and has become concentrated in the hands of individual prosecutors. Because pleas are not subject to the same level of scrutiny as trials, a jury’s power to prevent government overreach and a judge’s power to demand thorough and meticulous examination of evidence are fading—and more importantly, tipping the balance of power toward the prosecution… the imbalance itself is a threat to the legitimacy of the justice system as a whole because legitimacy is a natural outgrowth of trust, and trust is an outgrowth of perceived balance and fairness within the system. (Vaynman & Fondacaro, 2022, pp. 31–32)

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 ourts’ Roles in Creating and Amplifying C Prosecutorial Power Supplanting the constitutionally guaranteed jury trial right—with all its guardrails, procedural requirements, defendant protections, and prosecutorial transparency— with a plea bargaining system that provides none of the above turns our collective back on the Framers’ conception of the procedures required to rein in oppressive government power—in this case, largely unfettered and unmonitored prosecutorial power. As plea bargains were in the clear ascendency, the U.S. Supreme Court say idly by, ignoring the unequal bargaining postures of the parties and the paucity of information provided to the defendant: “in the ‘give-and-take’ of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution’s offer” (Bordenkircher v. Hayes, U.S., 1978, p. 363). Good grief! Were we to strive to give life to the Framers’ vision of checked executive power, now that jury trials are the exception and plea bargains (virtually unknown in the Framers’ time) are the rule, we must transplant the Framers’ jury trial guardrails into the plea bargaining context. Consider the Framers’ guardrails and the following approach (see Lippke, 2013): • the Sixth Amendment (U.S. Const. amend. VI) provides that criminal defendants have a right to trial counsel; • the Fourteenth Amendment (U.S.  Const. amend. XIV) extended that right to State proceedings (Gideon v. Wainwright, U.S., 1963); • Gideon also extended that right to counsel to indigent criminal defendants and granted them public-provided trial counsel; • the Due Process clauses of the Fifth and Fourteenth Amendments (U.S. Const. amends. V; XIV, § 1) has been interpreted to mean that the prosecution must disclose all exculpatory and impeachment evidence (favorable to the defense and material to guilt or innocence) to the defense (Brady v. Maryland, U.S., 1963; United States v. Bagley, U.S., 1985); Bagley “disavowed any difference between exculpatory and impeachment evidence for Brady purposes” (Kyles v, Whitley, U.S., 1995, p.  433; see also United States v. Agurs, U.S., 1976); exculpatory evidence includes evidence relevant to witness credibility and reliability (Giglio v. United States, U.S., 1972); • discoverable evidence includes evidence possessed by government agents beyond the prosecution (including police) (Kyles v. Whitley, U.S., 1995; Strickler v. Greene, U.S., 1999); see, e.g., Minn. R. Crim. P. 9.04, subd. 1a(1); • admission at trial of knowingly false evidence (Mooney v. Holohan, U.S., 1935), failure to correct false evidence that has been admitted at trial (Napue v. Illinois, U.S., 1959), and suppression of material evidence by failing to disclose it before trial (Brady v. Maryland, U.S., 1963) are all constitutional violations that can justify a new trial;

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• full prosecution disclosure of exculpatory and impeachment evidence to the defense before trial is necessary for the defense counsel to effectively counsel the defendant and prepare the defense for trial, yet the Supreme Court has steadfastly held that “There is no general constitutional right to discovery in a criminal case, and Brady did not create one” (Weatherford v. Bursey, U.S., 1977); fortunately, the federal criminal procedure rules and most state rules require extensive prosecutor disclosures to defense before trial (Fed. R. Crim. P. 16); • “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution” (Brady v. Maryland, U.S., 1963); • further, the Court has held that most uses of guilty pleas and negotiated pleas are consistent with due process so long as the plea is “voluntary” (e.g., Brady v. United States, U.S., 1970 (“both the State and the defendant often find it advantageous to preclude the possibility of the maximum penalty authorized by law”)); McCarthy v. United States, U.S., 1969 (requiring voluntariness); • and the Court has held that defendants have forfeited many bases for potential appeal simply by entering a “voluntary plea” (Tollett v. Henderson, U.S., 1973); • Escobedo v. Illinois (U.S., 1964) extended the right to counsel beyond the trial to all critical post-indictment stages of the investigation; • the Supreme Court has repeatedly held that negotiating and accepting an agreement to plead guilty is a critical stage at which the criminal defendant is entitled to counsel (Padilla v. Kentucky, U.S., 2010; Missouri v, Frye, U.S. 2012; Lafler v. Cooper, U.S., 2012); • guilty pleas must be knowing, intelligent, and voluntary (Boykin v. Alabama, U.S., 1969; Brady v. United States, U.S., 1970); • yet the Supreme Court, despite previously holding in a trial milieu that prosecutors have a due process obligation to disclose relevant, exculpatory, and impeachment evidence when the case is heading toward trial, has improvidently and repeatedly held that “the Constitution, in respect to a defendant’s awareness of relevant circumstances, does not require complete knowledge of the relevant circumstances, but permits a court to accept a guilty plea, with its accompanying waiver of various constitutional rights, despite various forms of misapprehension under which a defendant might labor” (United States v. Ruiz, U.S., 2002, p. 630); what an “awful but lawful” holding; stated another way, what good does it do to ensure the defendant is represented by counsel pretrial but deny that counsel access to the evidence counsel needs to advise and represent the defendant? Given that criminal jury trials have now been all but replaced by negotiated guilty pleas, and all the trial rights guaranteed by the Constitution and other principles of American criminal law (e.g., the presumption of innocence; right to remain silent and due process; speedy and public trial, impartial jury, be informed of the nature and cause of the accusation, be confronted with the witnesses against him (Ortman, 2021), have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense) are therefore moot since criminal trials are

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“almost as rare as the spotted owl” (Mnookin, 2005, p. 1721), the Supreme Court has held these constitutional guarantees largely inapplicable to plea negotiations. That is “awful but lawful”—for now. The stage is set for today’s criminal defendants to plead without discovery and with defense counsel unaware of the evidence against their clients. How can we possibly call those guilty pleas “knowing, intelligent, and voluntary”? What could make matters worse? Simply put, this unconstitutional nightmare is exacerbated by the confluence of a constellation of factors underwritten by all three coordinate branches in the name of expedience although more conspiratorial and unconstitutional plans may also be afoot: “I have a lingering fear, however, that something else is at play. I worry that judges also might be motivated by a more troubling normative commitment-a bias (subconscious, perhaps) that it is appropriate for the prosecutor to bully the defendant for the simple reason that the defendant is probably guilty. … in the plea bargaining context, … that the probably guilty defendant is exactly where he ought to be” (Bowers, 2016, p. 1145). It all comes down to prosecutorial power, enabled by the three branches, exercised largely in secret and with no oversight or limitations (Barkow, 2006), which has exploded in this Plea Bargain Era. “No government official has as much unreviewable power or discretion as the prosecutor. Few regulations bind or even guide prosecutorial discretion, and fewer still work well” (Bibas, 2009, p. 959). And “few decisions prosecutors make are subject to legal restraints or judicial review” (Green & Zacharias, 2004, pp. 837–838). In every substantive sense, plea bargains are the prosecutors’ playground: “prosecutors’ offices enjoy considerable autonomy in shaping their internal policies. … courts are generally loath to interfere with the inner workings of a coordinate branch of government… prosecutors exercise almost unlimited discretion over whom to prosecute and which offenses to charge… lack of any external oversight of prosecutors’ offices creates an environment in which misconduct can go undetected and undeterred. … But most criminal cases in the United States result in plea bargains, which are rarely the subject of extensive investigation or judicial review, creating a heightened risk of undetected prosecutorial misconduct in the plea bargaining context” (Keenan et al., 2011, p. 210).

 egislatures’ Roles in Creating and Amplifying L Prosecutorial Power Congress and state legislatures have enacted (and the U.S. Supreme Court has upheld) legislated three-strikes laws; uneven and inequitable drug sentencing schemes; towering sentencing maxima; mandatory minimum sentences; mandatory, presumptive, and advisory sentencing guidelines; duplicative statutes of various severities; sentencing enhancements for gang membership, school zones, firearms, and the like; all of which create and vastly expand prosecutorial power, particularly at the plea bargaining stage.

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Three-strikes laws provide mandatorily or presumptively very long sentence enhancements (Langer, 2006)—sometimes yielding life sentences—for certain repeat offenders (e.g., Ewing v. California, U.S., 2003) (“when the California legislature enacted the three-strikes law, it made a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime”); but see Johnson v. United States, U.S., 2015 (finding part of the career criminal act unconstitutionally vague). Imagine the prosecutor’s power using a three-strikes law when negotiating a plea. The prosecutor could charge the three-strikes provision ab initio and then offer to agree to seek a sentence notwithstanding the three-strikes provision if the defendant simply agrees to plead guilty. Or the prosecutor could charge a crime that does not implicate the three-­ strikes enhancement but threaten to add that three-strikes provision if the defendant refuses to plead guilty as charged. One might imagine even an innocent defendant taking that deal—particularly a defendant who has neither been able to post bail nor provided an opportunity to view the evidence and other exculpatory and impeachment materials (Stuntz, 1993). Accelerating during the War on Drugs and continuing in some jurisdictions today, uneven and inequitable drug sentencing schemes enacted by tough-on-drug-­ crime legislatures (Alexander, 2011), and often based on weight or possession versus sale distinctions, give the prosecutor an immense bargaining advantage—with today’s drug laws, almost any drug offense could be charged dozens of different ways with vastly different sentencing options—the horse-trading options are limitless and solely within the control of the prosecutor. And even those drug offenders sentenced years ago have been precluded from seeking sentence mitigation now (e.g., Terry v. United States, U.S., 2021) (precluding offenders sentenced years ago under harsh crack cocaine sentencing schemes from seeking sentence mitigation now). Many state legislatures and Congress subdivided crimes into degrees by type or threshold or circumstances and thereby gave prosecutors a fulsome menu of options with which to craft just the “right” plea deal and the “right” sentence, further amplifying prosecutor power, especially in the plea negotiation process (Bibas, 2001). Many legislatures and Congress enacted mandatory minimum sentencing options for many offenses (Abbott v. United States, U.S., 2010) (affirming a specific mandatory consecutive sentence; but see Borden v. United States, U.S., 2021) (excluding recklessness crimes from career criminal sentencing); Alkon, 2014; Barkow, 2003; Bibas, 2009; Donnelly, 2019; Langer, 2006; Luna & Cassell, 2010; Schneider & Alkon, 2019; Starr & Rehavi, 2013). Imagine the unfair and unequal power the prosecutor wields in such situations by simply offering to waive or re-charge to avoid the mandatory minimum in exchange for the defendant’s guilty plea secured before the defendant and her counsel are permitted to see all the evidence. Of course, many prosecutors will also transmit as part of the plea negotiation the implicit or explicit threat that if the defendant declines the deal, the trial would proceed with the mandatory minimum provision intact. It seems hardly accurate—even laughable—to call a guilty plea given such an unfair bargaining posture “voluntary” at all. Many states and the federal government have adopted first mandatory then presumptive and advisory sentencing guidelines (see Blakely v. Washington, U.S.,

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2004) (upholding state sentencing guidelines scheme but requiring jury finding beyond a reasonable doubt or jury waiver for all facts [other than criminal history] that increase the guidelines sentence). In a guidelines jurisdiction, when the prosecutor makes a charging decision, the prosecutor is also making or at least boxing in the sentencing decision (Bibas, 2004). And most prosecutors become quite facile at manipulating the guidelines and charges to arrive at virtually any sentence that will convince (coerce?) the defendant into the plea deal. It is simply not a fair fight. Never mind that many guidelines schemes determined their sentence ranges by computing the typical sentence for crimes of each type in the pre-guidelines era, when racial disparities were, if anything, worse than today. The raw leverage prosecutors inherit from the sentencing guidelines is demonstrably all the power they need to resolve criminal cases with negotiated pleas; after all, over 90% of criminal cases end by guilty pleas today. That is a simple artifact of the power mismatch in the pretrial stage. Legislatures have given prosecutors all the power with Draconian sentencing schemes and enhancements, impervious and manipulable guidelines schemes, all while defendants soldier on with little to no discovery in many jurisdictions. The lopsided power vectors in plea bargaining, enabled and supported by the courts and legislatures as discussed above, are then used by many of America’s prosecutors in ways just and unjust—lawful and awful.

Improper Leverage in Plea Bargaining Prosecutors are apparently free to engage in the following questionable or clear misconduct in the plea negotiation process to gain or enhance leverage over the defendant: “charging a suspect with more crimes than warranted, withholding exculpatory evidence, allowing witnesses to provide false testimony, pressuring defense witnesses to not testify, relying on phony forensic experts, overstating the strength of the evidence during plea negotiations, … suppressing evidence favorable to the accused, and failing to report prosecutorial misconduct” (Lee, 2021, pp. 506–507). To gain leverage in plea negotiations, prosecutors may charge crimes more numerous or severe than they intend to take to trial (Caldwell, 2011), or enter plea deals whereby criminal cases are resolved in exchange for defendants’ waivers of related civil claims against the government (Keenan et al., 2011, p. 226). Indeed, prosecutors often require defendants entering guilty pleas to waive rights large and small (Green, 2017; Moriarty & Main, 2011); obviously, pretrial and trial rights are waived in each plea agreement (Lord, 2022, p.  96), but the more expansive the rights waived or the more removed from the plea or the crime, the greater the potential for waiver abuse (Croy, 2020; Lord, 2022; United States v. Mezzanatto, U.S., 1995, p.  806). Too often those include waivers of the right to appeal (King & O’Neill, 2005; Reimelt, 2010) or waivers to see some or all evidence before entering the guilty plea (Hashimoto, 2008, p. 956).

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Deception in Plea Bargaining Prosecutors are guided by American Bar Association and National District Attorneys Associations standards. These are aspirational, but have been used by courts to assess prosecutorial conduct and misconduct (MacLean & Wilks, 2012, pp. 77–78). Each prosecutor purportedly serves as a “minister of justice” (NDAA, 2023, Standards 7 (commentary), 9-1.3, and 9 (commentary); Croy, 2020). “The prosecutor should always be vigilant for the case where the accused may be innocent of the offense charged” (NDAA, 2023, Standard 6-3.2). “The prosecutor should not knowingly make any false or misleading statements of law or fact to the defense during plea negotiations” (NDAA, 2023, Standard 6-3.3). “[P]lea negotiations should be conducted in an honest and forthright manner in which the prosecution is guided by representing the best interest of society while being mindful of duties of candor and to avoid overreaching in dealing with the defendant” (NDAA, 2023, Standards 6, commentary). And the ABA Model Rules of Professional Conduct provide substantive guidance on candor and disclosure in plea negotiations: “The prosecutor in a criminal case shall make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense” (ABA Model Rules of Professional Conduct Rule 3.8(d) (emphasis added)). “On its face, [Rule 3.8(d)] demands more than the due process decisions beginning with Brady v. Maryland that require prosecutors to disclose ‘material’ exculpatory and impeachment evidence. But, as of the mid-­1980s, courts and disciplinary agencies essentially ignored the provision, and so prosecutors did too” (Green, 2017, p.  470). “Rule 3.8(d) does not appear to have been enforced against prosecutors who fail to disclose Brady evidence before pleas, nor do prosecutors appear to feel obligated by the rule to disclose it” (Hashimoto, 2008, p. 958). And when the American College of Trial Lawyers in 2004 proposed rules changes to provide more expansive pre-plea disclosures, the United States Department of Justice vehemently objected, then the Federal Rules Advisory Committee declined to consider the proposals (Conte, 2012, p. 92). But the text and spirit of Model Rule 3.8(d) are difficult to square with the concept that prosecutors have no constitutional or statutory obligation to disclose to defense pretrial all discovery in a criminal case (Douglass, 2001; Luna & Redlich, 2020), or disclose that a key prosecution witness has died or disappeared, or disclose that an alibi witness has been found (Aaron, 1999), or disclose that impeachment evidence for a key prosecution witness exists (United States v. Ruiz, U.S., 2002, pp. 629–633), or disclose that an exculpating statement has been developed or a key prosecution witness has a Perjury conviction (Hashimoto, 2008, p. 953), or disclose that a scientific test used by the state may no longer be valid (Conte, 2012), or disclose that the process for out-of-court identification of the defendant was unduly suggestive, or even disclose that the state itself has falsified evidence in the case (Wynbrandt, 2016, p. 560), among many other key evidence categories. And the minister of justice role appears inconsistent with prosecutorial puffery,

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misdirection, improper leverage, deceit (Luna, 2022), broad waivers, exploding offers, withheld disclosures, take-it-or-leave-it offers, bluffing, misleading, subterfuge, threats, undeliverable promises, threats or promises regarding penal interests of third parties, and other “hard” and unconstitutional bargaining.

 he Corrosive Impact of Unchecked Prosecutor Power T on Defendants’ Agency to Decide “Fairness is essential to the legitimacy of plea negotiations as well as trials” (Aaron, 1999, p. 3023). But prosecutorial power wrapped in a shroud of secrecy (Turner, 2021), insufficient pretrial discovery, and non-existent or ineffective safeguards, and emboldened by guidelines, mandatory sentences (Luna & Cassell, 2010), and nearly limitless charging and disposition discretion sully what should be plea negotiations that are exercises in due process with the defendants’ freedom, criminal records, and future on the line. Indeed, “criticism includes that plea bargaining fails to protect defendants’ rights, is a form of torture, is overly coercive, leads defendants to “game” the system, fails to take victims into account, reinforces inequality (particularly towards ethnic minorities), leads to disparate sentencing … and undermines our system of justice due to its overuse at the expense of jury trials” (Alkon, 2014, p. 563). Defendants’ cost-benefit analyses in the plea bargaining process are often hopelessly mired in uncertainty as they struggle to negotiate a plea deal in the dark (Schneider & Alkon, 2019). Plea bargain negotiations certainly bear little resemblance to arms-length and fully informed contract negotiations (Scott & Stuntz, 1992; Wilkinson, 2014)). Amazingly, the Supreme Court has, so far, considered “plea deals ‘intelligent’ even if the defendant lacks information about the evidence that will be admitted at trial against him or how that may impact his chances of conviction” (Alkon, 2014, p. 569, citing Brady v. Maryland, 1963, p. 757; United States v. Ruiz, U.S., 2002, pp. 629–630). Allegedly “knowing, intelligent, and voluntary” plea deals are oxymoronic and contrary to due process, particularly where the leavening and oversight powers of hyper-controlled jury trials amount to only about 5% of all criminal case resolutions. Thus, about 95% of criminal cases are resolved with prosecutors holding all the cards and defendants holding none. Small wonder mass incarceration blossomed as plea bargaining replaced jury trials in criminal justice (Winshall, 2022). The very idea that uninformed criminal defendants can conduct a meaningful cost-benefit analysis of pleading guilty borders on the absurd: “The suppression of material evidence affects a defendant’s knowledge and intelligence of his or her case because the revelation of such evidence to the defendant would have produced a different result at a criminal proceeding … broad prosecutorial disclosure pre-plea [would] allow[] criminal defendants to better predict the trial outcome and, thus, ensure fair plea negotiations or a more knowledgeable plea entry … . The

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suppression of exculpatory evidence pre-plea inhibits defendants from examining their case and their innocence and, thus, prevents a knowing and intelligent guilty plea entry” (Conte, 2012, pp. 95, 101). Without access to exculpatory and impeachment evidence, “defendants have no leverage to obtain pleas that accurately reflect the strength of the government’s case against them” (Hashimoto, 2008, p. 952). “At the very least, possession of [all evidence] would … put the defendant in a better position to negotiate a more favorable plea” (Hashimoto, 2008, p. 953). Trials are the historic and paradigmatic path for discerning the truth in criminal cases—plea bargaining avoids the search for the truth (Johnson, 2022). With 95% of all criminal cases resolved by negotiated pleas, our criminal justice system now is sidestepping the search for truth that was discovered in the past through the jury trial process. Our system is now mired in this truth desert where only prosecutors—not the largely passive judge (Turner, 2006) and certainly not the defendant—know the facts and therefore know the true plea bargaining cost-benefit analysis. And the trial penalty (Lippke, 2013, p. 719; Wright, 2005)—the much harsher consequences that flow from trial compared to bargained guilty pleas—is so overwhelming that it leaves many defendants with no choice at all—take this favorable plea deal or go to trial and be sentenced to a far longer term if convicted. In the final analysis, the “difference between the predicted sentence after a trial conviction and the predicted sentence after a guilty plea could become so large that some defendants would not accurately weigh their options and would not dare go to trial, even with a strong defense” (Wright, 2005, p. 109). That is awful but lawful—for now. The American Bar Association’s Plea Bargain Task Force devised in 2023 a set of fourteen principles “about how plea bargaining should operate within our larger criminal justice system, a system based on the fundamental constitutional right to trial” (ABA, 2023, p. 9). ABA Task Force principles 7 and 9 most directly address the current truth desert in plea bargaining: Principle 7: There should be robust and transparent procedures at the plea phase to ensure that the defendant’s plea is knowing and voluntary, free from impermissible coercion, and that the defendant understands the consequences of their decision to plead guilty. Principle 9: Defendants should receive all available discovery, including exculpatory materials, prior to entry of a guilty plea, and should have sufficient time to review such discovery before being required to accept or reject a plea offer. (ABA, 2023, pp. 10–11, 22–24)

Those two steps are steeped in constitutional due process and recognize that in the Plea Bargain Era, the plea bargaining process must be re-designed to fulfill the truth-seeking and due process-ensuring role previously played by the trial process. Certainly, some prosecutors already deliver on this due process obligation by providing full pre-plea disclosures to the defense. But in the many jurisdictions without full pre-plea disclosures, those prosecutors are violating the due process clauses of the Fifth and Fourteenth Amendments and the implicit protections in the Sixth Amendment’s pretrial and trial rights clauses. That is awful but deemed lawful, so far. It is past time to right the ship.

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Can We Make Plea Bargaining More Lawful and Less Awful? In this “awful but lawful” era, defendants, too often held in lieu of bail and too often unable to afford representation that is not overworked and under-resourced (Easterbrook, 1992; Simonson, 2017), must bargain for their lives, freedom, reputations, and criminal records in the dark with little to no access to the evidence against them. In this awful but lawful era, plea bargaining happens in secret, often without the defendant even being in the room, and prosecutors wield enormous power borne of guidelines, mandatory minimums, and a veritable explosion in the number and gradations of criminal laws. Indeed, when prosecutors make a charging decision in this awful but lawful era they are perforce also making the sentencing decision because they control the entire playing field and select the crime(s) that yields maximum leverage to secure a favorable plea deal. That sad fact, and not just lack of resources, drives us in this Plea Bargain Era when nearly all cases are resolved via guilty pleas. Of course they are: that is how prosecutors want it and prosecutors control all the levers. Judges are too often rubber stamps in this era and thereby fail to serve their historical and constitutional roles as gatekeepers and justice optimizers. Judges, too often, just read and impose the plea deal that the prosecutor coerced the defendant into accepting—“I’m ready for the next case now.” Consideration of a few additional plea bargaining issues is essential to see the remainder of the big picture before turning to recommendations at the end of this chapter. The pain in the Plea Bargain Era is not equally distributed. Instead, pain and inequity are heaped on minority defendants and their families and communities (Bowers, 2016, p. 1145; Fairfax, 2021; Greenberg, 2021; Lieb, 2014; Rubenstein, 2022; Starr & Rehavi, 2013; Thusi, 2022). “Black people are 13.6% of the American population but 53% of the 3200 exonerations listed in the National Registry of Exonerations. Judging from exonerations, innocent Black Americans are seven times more likely than white Americans to be falsely convicted of serious crimes” (National Registry of Exonerations, 2022b, p. iii). For Black Americans, “bail is likely to be higher, so Black drug defendants are more likely than whites to face the Hobson’s choice of plea bargaining: plead guilty or stay in jail” (National Registry of Exonerations, 2022b, p. 35). At times, fictitious (or false) pleas also infect plea bargains. Fictitious pleas are crafted resolutions where the “right” sentence is derived by having the defendant agree to plead guilty to a crime the defendant did not commit (say, for a different type of drug, or harassment instead of assault, and so on). The “right” sentence may have been reached according to the system stakeholders (Bowers, 2008), but at the cost of cheapening the institution and making a mockery of the truth-seeking process (Byrne, 2010; Donnelly, 2019, p. 430; Johnson, 2019). Exorbitant bail, cash bail, and inequitable bail all predispose many minority and indigent defendants to be held in custody in lieu of bail awaiting trial (MacLean & Lamparello, 2022, ch. 4). That increases the pressure on those defendants detained pretrial to enter into a plea agreement—virtually any plea agreement—to get back

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to family, work, and community. Thus, the burdens on those unable to post bail render them even more susceptible to prosecutor power and leverage against them to make a deal. A coerced or involuntary guilty plea is unconstitutional whether the defendant is factually guilty or factually innocent; both have a right to due process and procedural justice. But it is clear that American plea bargaining has an “innocence problem” (Blume & Helm, 2014; Covey, 2009; Dervan & Edkins, 2013, p. 17, note 95; Hessick & Saujani, 2002; Siegle, 1996; Wynbrandt, 2016, p. 553). Innocent defendants are simply susceptible to coercive plea deals, especially when the sentence maxima, guidelines sentences, or trial penalty is high (Schneider & Alkon, 2019, p. 441), the plea discount or bail is steep, and where prosecutor leverage or deceit is particularly persuasive and coercive (Trunley, 2018, p. 508). Tragically, the intersection between innocent defendants and evidence suppression is all too clear: “According to the Philadelphia Convictions Integrity Unit, 95% of exonerations have stemmed from suppressed evidence” (Nelson, 2022, p.  4). The National District Attorneys Association’s National Prosecution Standards take an aspirational swat at plea bargaining’s innocence problem: “A concern that is not common to other agreements is the possibility that an innocent defendant would be interested in a negotiated guilty plea in order to avoid exposure to a greater sentence. A prosecutor who considers all of the factors in these standards is in the best position to avoid such a miscarriage of justice” (NDAA, 2023, Standard 6 commentary). Yet, improper leverage, prosecutor deceit, and the innocence problem persist. What kind of criminal justice system would allow such a travesty: one that is “awful but lawful.” Stakeholders in the criminal justice system are reticent to report prosecutor plea bargaining misconduct. That makes some sense, as those otherwise reporters (1) will have to appear with that prosecutor soon again and fear retaliation (Nir & Liu, 2021); (2) know prosecutors are virtually immune when engaged in direct prosecutorial duties (Nelson, 2022; Trunley, 2018, p.  506); (3) are aware that regulatory bodies and courts are largely unwilling to discipline prosecutors for plea bargaining conduct; (4) know that a bar complaint will not make the plea offer any “sweeter”; (5) may not even know they are being manipulated into pleading guilty; and (6) feel trapped in the plea negotiation system controlled by the prosecutors they might otherwise report (Nelson, 2022, pp. 2–3; Trunley, 2018, pp. 505–506, 508). Judges, who may see themselves as benefiting from the overwhelming number of guilty pleas today may be quite willing to look the other way (or perhaps hold their noses) as prosecutors work their “magic” in plea bargaining the judges’ trial calendars away. Some commentators have simply thrown up their hands and called for partial or total plea bargaining bans while declaring the plea bargaining system irretrievably broken: “Plea bargaining is a disaster. It can be, and should be, abolished” (Schulhofer, 1992, p. 2009). Others, the authors included, argue that plea bargaining is likely essential for the operation of a criminal justice system that generates over 20 million new criminal cases per year and has too few judges and prosecutors, and certainly too few defense attorneys to try every case (Alkon, 2014, pp. 589–590; Gazal-Ayal, 2006; Guidorizi, 1998). Further, since most plea bargains may be the

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best result many criminal defendants can achieve, banning plea bargaining would harm those we should strive to protect. The American plea bargaining system is salvageable and steps toward repair are quite clear. The American Bar Association Plea Bargain Task Force has gathered many of the best ideas into a single, short document we commend to our readers (ABA, 2023). The Task Force offered fourteen principles that seek to return the American criminal justice system to its constitutional foundations: Principle 1 A vibrant and active docket of criminal trials and pre- and post-­trial litigation is essential to promote transparency, accountability, justice, and legitimacy in the criminal justice system. Principle 2 Guilty pleas should not result from the use of impermissibly coercive incentives or incentives that overbear the will of the defendant. Principle 3 In general, while some difference between the sentence offered prior to trial and the sentence received after trial is permissible, a substantial difference undermines the integrity of the criminal system and reflects a penalty for exercising one’s right to trial. This differential, often referred to as the trial penalty, should be eliminated. Principle 4 Charges should not be selected or amended with the purpose of creating a sentencing differential, sentencing enhancement, punishment, or collateral consequence to induce a defendant to plead guilty or to punish defendants for exercising their rights, including the right to trial. Principle 5 The criminal justice system should recognize that plea bargaining induces defendants to plead guilty for various reasons, some of which have little or nothing to do with factual and legal guilt. In the current system, innocent people sometimes plead guilty to crimes they did not commit. Principle 6 A defendant should have a right to qualified counsel in any criminal adjudication before the defendant enters a guilty plea. Counsel should be afforded a meaningful opportunity to satisfy their duty to investigate the case without the risk of penalty to their client. Principle 7 There should be robust and transparent procedures at the plea phase to ensure that the defendant’s plea is knowing and voluntary, free from impermissible coercion, and that the defendant understands the consequences of their decision to plead guilty. Principle 8 The use of bail or pretrial detention to induce guilty pleas should be eliminated. Principle 9 Defendants should receive all available discovery, including exculpatory materials, before entry of a guilty plea, and should have sufficient time to review such discovery before being required to accept or reject a plea offer. Principle 10 Although guilty pleas necessarily involve the waiver of certain trial rights, there are rights that defendants should never be required to waive in a plea agreement. Principle 11 An adequate understanding of the collateral consequences that may flow from a guilty plea is necessary to ensure the guilty plea is knowing and voluntary.

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Principle 12 Law students, lawyers, and judges should receive training on the use and practice of plea bargaining consistent with the findings and recommendations of this Report. Principle 13 Court systems, sentencing commissions, and other criminal justice stakeholders, including prosecutor offices and public defenders, should collect data about the plea process and each individual plea, including the history of plea offers in a case. Data collection should be used to assess and monitor racial and other biases in the plea process. Principle 14 At every stage of the criminal process, there should be robust oversight by all actors in the criminal system to monitor the plea process for accuracy and integrity, to ensure the system operates consistent with the Principles in this Report, and to promote transparency, accountability, justice, and legitimacy in the criminal system. The ABA Plea Bargain Task Force has laid out the steps, we need only take them to move toward ending the Awful but Lawful Era.

Discussion Questions 1. How does the prevalence of plea bargaining affect the accuracy and fairness of criminal trials? 2. Does plea bargaining undermine the presumption of innocence and the right to a fair trial? 3. How does plea bargaining encourage improper prosecutorial leverage and deceit during negotiations, and what are the consequences of this for the integrity of the criminal justice system? 4. In what ways does the use of mandatory minimum sentences and sentencing guidelines give prosecutors unfair leverage in plea bargaining, and what can be done to address this issue? 5. What alternatives to plea bargaining exist, and how do they compare in terms of their impact on the criminal justice system?

Part IV

Conclusion

Chapter 10

The Way Forward: A Conclusion and Call to Action

Summary • Cash bail is a system in which a defendant can be released from jail before trial by paying a sum of money as a guarantee that they will appear in court, which can create inequities and inequalities in the justice system. • Federal sentencing guidelines and mandatory minimums result in inflexibility, racial disparities, and the removal of judicial discretion in determining appropriate sentences for criminal defendants. • The justice gap refers to the unequal access to legal representation and resources, while justice by geography refers to the wide disparities in the availability of legal services and the quality of the justice system across different regions and jurisdictions. • Prosecutors using minor mistakes made during a trial to justify a guilty verdict or to prevent an appeal, which can lead to wrongful convictions and undermine the integrity of the justice system, is another lawful but awful practice. • Felon disenfranchisement is the practice of denying individuals with felony convictions the right to vote, which can perpetuate racial and socio-economic inequalities in the justice system and undermine democratic principles. • Habeas relief and factual innocence allow individuals who are actually innocent to challenge their convictions and secure their release from prison, but overcoming the presumption of guilt and securing access to new evidence is a steep mountain to climb. • The lack of compensation for wrongful convictions in many states is unjust and problematic, leaving exonerees struggling to rebuild their lives, and sends a message that the criminal justice system is not accountable for its mistakes. • The need for a code of ethics for Supreme Court justices arises due to concerns over conflicts of interest, impartiality, and public trust in the judiciary. • We can end the “awful but lawful” era in criminal justice through action by advocating for policy reforms and accountability.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 C. E. MacLean, J. A. Densley, Police, Prosecutors, Courts, and the Constitution, https://doi.org/10.1007/978-3-031-39082-1_10

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The American criminal justice system has long been plagued by “awful but lawful” practices in which police, prosecutors, and courts prioritize expediency and conviction rates over justice. This has resulted in a system that is not only ineffective at preventing crime but also disproportionately harms marginalized communities and perpetuates systemic inequalities. In this book, we have examined the myriad ways in which the police, prosecutors, and courts contribute to this broken system, and we have proposed solutions for ending the “awful but lawful” era using the Constitution and the social contract as our guide. By reclaiming the Social Contract and the Constitution as a blueprint for reform, we can begin to rebuild a criminal legal system that serves the needs of all people and upholds principles of fairness and justice. The idea of a social contract, the implicit agreement between the government and the people it serves, in which the people agree to obey the laws and abide by the government’s authority, while the government agrees to protect the people’s rights and promote their welfare, is central to the American political and legal system, but it has been seriously lost in translation over time. Indeed, in the context of the American criminal justice system, it would not be a stretch to say the social contract has been broken; it must be repaired if we are to realize the promise and full potential of a justice system that is fair, impartial, and equitable; one that guarantees the right to a fair trial, the right to due process, and the protection of individual rights. In this concluding chapter, before issuing our final call for action, we will delve into the murky waters of some other “awful but lawful” practices that are prevalent in the U.S. Criminal Justice System. While the system is meant to serve justice and protect the citizens, it is not always fair, especially for those who cannot afford to fight back. One such practice is the use of cash bail, where defendants are required to pay a hefty sum to secure their release before trial, regardless of their ability to pay. Another practice is the use of the death penalty, a controversial and divisive issue, which is still legal in many states. Additionally, we will explore the use of Life Without Parole for youth, an unconstitutional practice that stands out for its inhumane and detrimental effects on young people. These practices, and several others, may be lawful, but they are far from just or ethical, and it is essential that we critically examine them and work toward a more equitable and fair system.

 ther Awful But Lawful Practices in the U.S. Criminal O Justice System Cash Bail The cash bail system has long been a source of controversy in the United States, with many arguing that it is fundamentally unjust and disproportionately harms low-income and marginalized individuals (U.S. Commission on Civil Rights, 2022). To understand the problems with the cash bail system, it is important to first

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understand its history. Bail has its roots in English common law, where it was originally intended to ensure that defendants appeared in court (Baughman, 2018). However, over time, the system has evolved to become a means of keeping individuals in jail prior to trial, particularly those who cannot afford to pay (Scott-Hayward & Fradella, 2019). A bail schedule is a predetermined list of bail amounts for specific crimes used to determine the amount of bail that a defendant must post to secure their release (Baughman, 2018). The list is created by a judge or other authorized official and is based on the severity of the offense, sometimes but not always, augmented by consideration of the defendant’s criminal history and the likelihood the defendant will flee or pose a danger to the community if released. Bail schedules are intended to provide consistency in the bail-setting process and ensure that defendants are not held in jail solely because they cannot afford to post bail. And yet, the system primarily punishes people for being poor (Scott-Hayward & Fradella, 2019). Bail schedules often assign fixed amounts to specific offenses, limiting judicial discretion, and the cost of bail can be exorbitant, with some defendants required to pay tens of thousands of dollars for their release. For low-income individuals, this can be an insurmountable barrier, forcing them to languish in jail for weeks, months, or even years while they await trial (Baughman, 2018). The consequences of pretrial detention, in turn, can be devastating, particularly for those who are already marginalized (U.S. Commission on Civil Rights, 2022). Individuals who are held in jail pretrial may lose their jobs, their homes, or custody of their children. Even a short stint in jail can have long-lasting effects on a person’s life, making it difficult to rebuild in the aftermath. In this context, it is easy to see how race and wealth intersect, with the two factors often reinforcing each other in a self-perpetuating cycle of inequality. Throughout American history, racial discrimination has been baked into many aspects of society, including housing, education, and employment (Unnever & Gabbidon, 2011), and as a result, Black and Hispanic communities are disproportionately affected by poverty and economic insecurity, which can make it more difficult to accumulate wealth and achieve financial stability; and, in turn, afford the high costs of bail. For these reasons, the cash bail system is deeply racially and economically biased. Black and Hispanic defendants and people living in poverty are far more likely to be held in jail pretrial than their rich, white counterparts, even when charged with similar crimes and possessing similar criminal records. Worse still, the cash bail system is not even an effective means of achieving its stated goal of ensuring court appearances. Alternatives to the cash bail system do exist, such as community-based pretrial services or risk assessment tools that do not rely on wealth as a determining factor. But research has shown that defendants who are held in jail pretrial are actually more likely to be convicted and receive harsher sentences than those who are released on bail (Baughman, 2018; Scott-Hayward & Fradella, 2019). This is because individuals who are held in jail are often unable to prepare an adequate defense and may be coerced into accepting a plea deal, regardless of their guilt or innocence.

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Federal Sentencing Guidelines and Mandatory Minimums As we have discussed at length in this book, the American criminal justice system is plagued by longstanding issues of bias and discrimination, particularly against marginalized communities. One of the ways in which this problem manifests itself is through judicial guidelines systems that limit judges’ discretion in sentencing (Doyle, 2013). While these guidelines may have been implemented with the intention of creating consistency and fairness in sentencing, in practice, they often cement past injustices and perpetuate systemic inequalities. At their core, judicial guidelines systems rely on historical data to establish parameters for sentencing. However, this data is often skewed by biases that have been present in the justice system for decades, if not centuries (Unnever & Gabbidon, 2011). As a result, guidelines can be based on flawed assumptions and perpetuate discriminatory practices. For example, in 1986, Congress passed the Anti-Drug Abuse Act, which established mandatory minimum sentences for drug offenses, including a 100:1 sentencing disparity between crack and powder cocaine offenses (Alexander, 2011). Under this law, possession of 5 grams of crack cocaine carried the same mandatory minimum sentence as possession of 500  grams of powder cocaine, thus creating a situation where individuals convicted of crack cocaine offenses, who were more likely to be Black and from low-income communities, were subject to much harsher sentences than those convicted of powder cocaine offenses, who were more likely to be white and from higher-income communities (Alexander, 2011). The guidelines effectively penalized individuals for their race and socioeconomic status and rather than focusing on providing drug treatment and support to individuals struggling with addiction, they prioritized prison time as a deterrent for drug offenses. In 2010, Congress passed the Fair Sentencing Act, which reduced the sentencing disparity between crack and powder cocaine from 100:1 to 18:1. Nevertheless, the damage had been done. By limiting judges’ discretion, these sentencing guidelines (and others like them) resulted in sentences that did not fit the crime and that failed to account for important factors such as an individual’s background, mental health, or rehabilitation potential. In essence, they created a “one size fits all” approach to justice that disproportionately and detrimentally impacted marginalized people and communities and undermined the due process clauses of the Fifth and Fourteenth Amendments that all individuals receive a fair trial and judicial decisions be based on individualized consideration of relevant factors. To be clear, the goal of judicial guidelines is a noble one: to create a fair and consistent justice system that treats all individuals equally (Doyle, 2013). However, in practice, these guidelines often fall short of this goal. They perpetuate historical biases and create a system that is less responsive to the needs of individual cases. To create a truly just criminal justice system, we must re-evaluate the role of guidelines and allow judges more discretion in sentencing. By doing so, we can ensure that the justice system serves all individuals, regardless of their race, socioeconomic status, or background.

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Life Without Parole for Young People In 2012, the Supreme Court ruled in Miller v. Alabama (U.S. 2012) that mandatory life-without-parole sentences for people under 18 violate the Eighth Amendment’s prohibition on cruel and unusual punishment. The court held that owing to their still-developing brains and lack of life experience, juveniles had a greater capacity for change and rehabilitation than adults. Juveniles were also less culpable for their actions and thus should be given more leniency in sentencing. Life without parole sentences can be costly, both in terms of financial resources and in terms of societal costs (Rovner, 2023). Incarcerating someone for life without the possibility of parole means that they will likely never be able to contribute to society in a meaningful way, and they will continue to require resources and support from taxpayers. However, despite this, and the Miller decision, many states still allow for the imposition of life without parole sentences for children and young people. In some cases, judges have the discretion to impose such sentences, while in others, mandatory minimum sentences still apply. This has led to a patchwork of laws across the country, with some states having abolished life without parole for juveniles altogether, while others still use it as a sentencing option (Rovner, 2023). Life without parole sentences for youth are both unconstitutional and ineffective; awful in every sense of the word. Instead, we should be focusing on more developmentally appropriate and rehabilitative approaches to justice that take into account the unique needs and capacities of juveniles. By doing so, we can help young people who have made mistakes to move past them, become productive members of society, and ultimately contribute to a more just and equitable world.

The Justice Gap, Justice by Geography, and the Death Penalty Justice in the United States is not evenly distributed across different regions and is at times almost entirely dependent on where one lives. Ending the awful but lawful era in this country means seriously addressing the “justice gap” (Long & Ponce, 2019) and “justice by geography” (Feld, 1991, 2012). Studies have shown that people living in rural and low-income areas have significantly less access to legal representation than those in urban and affluent areas, in part owing to the lack of legal aid organizations and the high cost of private attorneys (Pruitt et al., 2018). As a result, people living in these areas are often left to navigate the legal system alone, without adequate support or resources. In some cases, justice by geography is a matter of life or death. The death penalty is one of the most severe punishments that can be imposed by the legal system. However, its use is not evenly distributed across the country, leading to significant disparities in sentencing for individuals who commit the same crimes in different states or jurisdictions (MacLean & Lamparello, 2022). The reasons for these disparities are complex (see Baumgartner et al., 2017), influenced by factors such as

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the political leanings of prosecutors and judges, race, class, and gender biases, and the availability of resources to mount a defense. Additionally, the use of the death penalty is often subject to public opinion and political pressures, which can vary widely between different states and jurisdictions. Some argue the death penalty violates the Eighth Amendment of the U.S. Constitution, which prohibits cruel and unusual punishment (Bessler, 2012). Still, the most obvious factor contributing to existing disparities in the application of the death penalty is the availability of the death penalty itself as a punishment in certain states (MacLean & Lamparello, 2022). Currently, only 27 states in the United States allow for the use of the death penalty. This means that individuals who commit capital offenses in states where the death penalty is not available are more likely to receive a life sentence or a lesser punishment, while those who commit the same crimes in states where the death penalty is legal are more likely to receive the death penalty (Baumgartner et al., 2017). Moreover, even within states that allow for the death penalty, its use is often concentrated in certain jurisdictions (Baumgartner et al., 2017). The use of the death penalty is disproportionately high in certain counties or cities within states, while other areas rarely use it as a punishment. This leads to significant disparities in sentencing for individuals who commit the same crimes in different parts of the same state. Not to mention, Black Americans are disproportionately represented on death row and they are more likely to receive the death penalty than white individuals who commit similar crimes (Stevenson, 2015). It is clear that the application of the death penalty is not consistent or fair, and that individuals who commit the same crimes should not receive vastly different sentences based solely on their respective locations. Efforts to reform the criminal justice system should focus on ensuring equal access to justice, regardless of location or demographic factors, and on creating a more equitable and just society. The use of the death penalty inherently raises ethical and moral concerns about the value of human life and the state’s role in taking life as a form of punishment. Two states (Alabama and Florida) do not even require a unanimous jury to impose death sentences for murder convictions; despite the fact that in Ramos v. Louisiana (U.S. 2020) the U.S. Supreme Court held that the Constitution requires unanimous jury verdicts in state criminal trials. The death penalty is associated with cruel and inhumane methods of execution, such as lethal injections, gas chambers, firing squads, and electric chairs that can cause immense physical and emotional suffering to the condemned, and there have been cases of botched executions resulting in prolonged agony for the person being executed (Sarat, 2014). According to Amnesty International, the United States in 2021 was the ninth of all countries in the number of executions; South Sudan was number 10, and China, Iran, Egypt, Saudi Arabia, Syria, Somalia, Iraq, and Yemen topped the list (Amnesty International, 2022, p. 60). That is not a list of countries known for respecting human rights. We should reconsider “membership” in this group. This is perhaps the most obvious lawful but awful practice in the country.

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Prosecutorial Use and Abuse of the Harmless Error Doctrine The harmless error doctrine provides that criminal trials, as human endeavors, are susceptible of errors some of which are harmless, that is, some did not adversely affect the outcome or fairness of the trial. Errors in trials are ubiquitous; indeed, co-­ author MacLean maintains that in his 20 years as a felony prosecutor “never a day went by when I failed to make at least one mistake.” That begs the question then: what types or quality of error(s) will render a trial unfair or lacking in due process under the Fifth and Fourteenth Amendments such that an appeal is an appropriate route to seek a remedy for the error? The U.S. Supreme Court has held that in determining whether an error was harmless, “The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction” (Fahy v. Connecticut (U.S. 1963)). Thus, so long as there was no reasonable possibility that the trial error may have contributed to the conviction, the error was harmless and cannot be appealed. That standard is supported also by federal court rule (Fed. R.  Crim. P. 52(a)) and court rules to similar effect in all fifty states. While the harmless error doctrine promotes efficiency in the legal system, it can lead to injustice when it permits errors that may have affected the outcome of a case to go unaddressed. This can be especially problematic in cases where a defendant’s constitutional rights have been violated. The problem is that the Constitution protects individuals’ rights to be free from governmental overreach—without regard to whether the overreach led directly to a conviction. The harmless error doctrine makes sense if the quest is to optimize judicial efficiency or prosecutorial or police expedience; but those ought not be the quests. Instead, the quest should be to give life to and vindicate those rights when they are violated. The legal analog is to the Leon good faith exception, which as discussed in chapter six, provides (out of sheer cloth) that when officers violate others’ constitutional rights and thereby obtain inculpating evidence, the unconstitutionally seized evidence is admissible notwithstanding the constitutional violation so long as the officers thought that in good faith they were doing the right thing. Well, that is as absurd and intellectually bankrupt as the harmless error doctrine. The two doctrines are on the same foundation of sand. To move toward ending the “awful but lawful” era, we must elevate constitutional rights again—above expedience, above any preference for repose, and above claims that the officers acted in good faith or were merely negligent or did not know what they were doing.

Felon Disenfranchisement In the United States, the right to vote is a fundamental aspect of citizenship. It is a right that has been fought for and defended by generations of Americans, and one that is enshrined in the Constitution. Felon disfranchisement refers to the practice of

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denying that right to individuals who have been convicted of certain crimes (Manza & Uggen, 2008). The practice was first established in the English colonies in the seventeenth century, and it was used as a means of controlling the political power of slaves and indentured servants. After the Civil War, felon disenfranchisement was further used as a tool of racial oppression. In many southern states, laws were passed specifically targeting Black Americans and disenfranchising them for a variety of offenses, including minor misdemeanors (Manza & Uggen, 2008). These laws were part of a broader system of Jim Crow segregation and voter suppression that was designed to maintain white supremacy (Alexander, 2011). In the 1960s, the Civil Rights Movement succeeded in overturning many of the worst abuses of felon disenfranchisement, but today still, at its core, it raises questions about what it means to be a citizen, who deserves a voice in our democracy, and what role the criminal justice system should play in determining those questions. Proponents of felon disfranchisement argue that it is a necessary tool for maintaining public safety and upholding the integrity of the electoral process (Manza & Uggen, 2008). They argue that individuals who have committed serious crimes have demonstrated a lack of respect for the law and for the social contract that underpins our democracy. As such, they argue, it is reasonable to deny them the right to participate in that democracy. However, as we’ve argued throughout this book, the social contract was never contingent; there are several compelling reasons why this “awful but lawful” practice must end if we are to achieve real justice. Primarily, felon disfranchisement disproportionately impacts communities of color. The Sentencing Project reports that in 2022, 4.6 million Americans were unable to vote due to a felony conviction (Uggen et al., 2022). Of those, roughly two million are black. This means that one in 19 Black Americans is unable to vote, compared to one in 50 non-black Americans. This is a staggering disparity and one that cannot be justified on any grounds. Our democracy is built on the idea that every citizen has a voice and a stake in the decisions that affect their lives. When we deny that right to certain individuals, we are essentially saying that their lives and experiences do not matter and that their voices do not count. This is not only unjust, it is also antithetical to the core values that underpin our democracy (Johnson-Parris, 2003). As Levine (1999) observes, “upon careful examination of the social contract and punishment theory, it is evident that disenfranchisement is an inappropriate and obsolete punishment that does more harm than good” (p. 224). Indeed, disenfranchisement is self-perpetuating. When individuals are denied the right to vote, they are effectively removed from the political process; they are unable to hold elected officials accountable for their actions, creating a feedback loop in which marginalized communities are further marginalized.

Other Awful But Lawful Practices in the U.S. Criminal Justice System

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Habeas Relief and Factual Innocence Habeas corpus (from the Latin, “that you have the body”) is a fundamental legal principle that guarantees individuals the right to challenge their detention or imprisonment. Federal habeas petitions are filed to do precisely this, whenever an individual believes their detention or imprisonment violates their constitutional rights. Our entire criminal justice system is based on the principle that a defendant is innocent until proven guilty. However, in practice, this principle often falls short, as defendants are frequently required to prove their innocence rather than the prosecution being required to prove their guilt. Nowhere is this more evident than in the concept of “factual innocence” and its role in criminal trials (Litman, 2018). The factual innocence requirement is a standard that a defendant must meet in order to successfully appeal a conviction and in many states, it places a significant burden on the defendant to present new evidence that was not available during the original trial (Litman, 2018). And federal rules changes (see Antiterrorism and Effective Death Penalty Act of 1996, U.S.C. tit. 28) and new caselaw (see Shinn v. Ramirez, U.S., 2022) have dramatically reduced the ability of habeas petitioners to have their day in court to seek remedy for the wrong they have suffered. The strictness of this innocence requirement and tightened habeas thresholds make it difficult for individuals who may be innocent to prove their innocence and avoid serving unjust sentences. When defendants are required to prove their innocence, moreover, the burden of proof is effectively flipped, making it significantly more challenging for them to receive a fair trial. As yet another example of lawful but awful practice, we need to re-evaluate the factual innocence requirement and place the burden of proof beyond a reasonable doubt back on the prosecution. One solution would be to adopt a more flexible standard for appeals, allowing defendants to present new evidence that may not meet the strict requirements of the factual innocence standard. This approach would help to ensure that justice is served, rather than simply punishing those who are unable to prove their innocence.

Zero or Insufficient Compensation for Wrongful Convictions As documented in Chapter seven, wrongful convictions are a grave injustice, as they rob individuals of their freedom, their reputation, and sometimes even their lives. Despite advances in forensic science and the criminal justice system, wrongful convictions continue to occur, often owing to factors such as eyewitness misidentification, coerced confessions, or faulty forensic evidence. Unfortunately, in 12 states—Alaska, Arizona, Arkansas, Delaware, Georgia, Kentucky, New Mexico, North Dakota, Pennsylvania, South Carolina, South Dakota, and Wyoming—there is no compensation available for individuals who have been wrongfully convicted and later exonerated (Innocence Project, 2023).

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And even in states that do offer monetary compensation and social services, the amount is often insufficient. The lack of compensation is a significant problem as it can leave exonerees struggling to rebuild their lives after spending years or even decades behind bars for a crime they did not commit (Stevenson, 2015). When someone is wrongfully convicted, they often lose years of their lives, suffer emotional trauma, and face significant financial hardship, including lost income, legal fees, and the costs of reintegration into society. Compensation can help alleviate some of these difficulties by providing exonerees with financial support, as well as resources to help them rebuild their lives. Compensation can also help hold the criminal justice system accountable for its mistakes, as it provides a clear signal that wrongful convictions will not be tolerated, especially in states with high rates of wrongful convictions (Stevenson, 2015).

The Path Lies Before Us Emory University School of Law Professor Deborah Young (1996) laid out the path; we need only summon the courage and marshal support to walk that path: Police lying can impede evidence gathering by generating distrust and suspicion which limit citizen cooperation and by obtaining or creating false evidence. Empirical studies further show that [deception] is not necessary to gain confessions and confessions are rarely necessary to obtain convictions. Equally important, police officers who lie diminish their own integrity and the integrity of the criminal justice system. … A partial solution, at minimal cost, is to require videotaping of all interrogations … police departments could prohibit lying in interrogations … . Departments also could teach new officers to interrogate without lying and stop relying on manuals that endorse lying. Alternatively, legislatures could enact statutes that either would regulate police conduct in interrogations or limit the admissibility of confessions obtained by police lying. Courts also have great latitude within which to end police lying. … This could be done on a case-by-case basis, or courts could develop a bright line rule prohibiting all police lying in interrogation … . Having reached an era where there is profound public mistrust of police, we should reconsider Justice Brandeis’ vision that, “Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.” The people have learned that police lie. To attempt to regain the trust of the people, courts, legislatures, and police departments should eliminate police lying in interrogations. (Young, 1996)

We can and must do much better within the U.S. criminal justice system. Professor Young’s path calls out to us. Just as we look back in derision at the criminal justice system of 30 years ago, those who follow us will look back 30 years from now with derision at what we consider justice now. There is no need for police to lie to solve most cases or obtain most confessions. And there is every need for the government and all its functionaries to honor the Social Contract and the U.S. Constitution, not as impediments or technicalities, but as the most cherished principles guiding our Nation and our government. Let us all strive to share that vision and walk along that path during our time.

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It starts at the very top. The U.S. Supreme Court is the highest court in the country, with a critical role in interpreting the Constitution and shaping the legal landscape of the United States. However, unlike many other professions, such as doctors, lawyers, and journalists, the Supreme Court justices do not have a formal code of ethics to guide their conduct while serving on the bench. The Code of Conduct for United States Judges (U.S. Courts, 2019), which was first adopted in 1973 and is based on the American Bar Association’s (2020) Model Code of Judicial Conduct, applies to all members of the federal judiciary except for Supreme Court justices because they are appointed for life, which makes them effectively immune from political pressures and influences that might otherwise necessitate a code of ethics. And yet, while the justices are expected to exhibit impartiality and ethical conduct as part of their oath to uphold the Constitution, there is no clear set of guidelines for what constitutes ethical behavior around conflicts of interest, recusal, and disclosure of financial and personal information, etc. A code of ethics for Supreme Court justices is a small step that could provide much-needed transparency and accountability in their decision-making process. It would ensure that justices are held to a clear standard of conduct, and provide a mechanism for addressing ethical violations if they were to occur. It could also help to rebuild public trust in the Supreme Court, which has been eroded in recent years due to concerns over partisanship and political influence. Accountability is the cornerstone of any effective justice system. It ensures that those in power are held responsible for their actions and that their decisions are transparent and just. So, while it starts at the top, it also radiates from the bottom, with every police officer, prosecutor, and practitioner in the justice system. Every decision they make and every action they take has an impact on the lives of those they serve. It is essential that every individual takes responsibility for those decisions and actions, follows ethical guidelines, and upholds the principles of justice and fairness. By doing so, they create a culture of accountability and promote public trust in the system. It is only by holding individuals accountable, no matter their position, that we can achieve a fair and just criminal justice system. When the police are trusted, for example (i.e., they are perceived as competent, honest, and reliable), people are less likely to fear them and more likely to believe law enforcement will act in the best interests of the public (Tyler, 2004). When the police are seen as legitimate (i.e., they are operating in a fair and just manner, and their actions are consistent with the values and norms of the communities they serve), members of those communities are also more likely to cooperate with them, follow the law, and support the justice system (Tyler, 2004). And when the police are seen as procedurally just, fair, and transparent in their interactions with the public, people are more likely to perceive them as legitimate and trustworthy (Sunshine & Tyler, 2003). It is all connected. In conclusion, this book highlights the issues surrounding the lawful but awful practices in the criminal justice system, particularly in policing and prosecution, which have undermined public trust in the system. Part One of the book explored the foundations of the criminal justice system—the social contract and Constitution— and how declining public confidence, ethical legalism, and obedient rule-following,

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even officer trauma and moral injury contribute to systemic issues. Parts Two and Three of the book examined the complicity of the courts in upholding police and prosecutor misconduct, including deceptive practices, excessive force, discriminatory enforcement, and resistance to conviction integrity assessments. These issues call for a collective effort to hold those in power accountable and implement progressive reforms to root out and address systemic issues. The path lies before us, and it is up to us to recreate a justice system that is fair, equitable, and transparent for all. We believe that by implementing the recommendations outlined in this book, we can begin to build a system that truly serves the needs of all people, promotes public safety, and upholds the Constitutionally guaranteed principles of fairness and justice. We recognize that these changes will not happen overnight and will require the sustained efforts of policymakers, practitioners, and the public. However, we are optimistic that by working together, guided by a shared commitment to justice and a recognition that every individual deserves to be treated with dignity and respect under the social contract, we can create a justice system that is lawful and a lot less awful.

Discussion Questions 1. What are the implications of cash bail on the justice system, and how does it contribute to inequities and inequalities? What alternatives could be implemented to address these issues? 2. Should individuals with felony convictions be disenfranchised from voting? Why or why not? 3. What policies could be put in place to support exonerees in rebuilding their lives? 4. How can a code of ethics for Supreme Court justices help ensure impartiality and public trust in the judiciary? What are some possible guidelines that could be included in such a code of ethics? 5. In your opinion, what policy reforms and accountability measures can be taken to end the awful but lawful era in criminal justice?

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Index

B Bias, 32, 42, 99–101, 129, 144 Big data policing, 69, 92

L Legitimacy, 9, 10, 61, 126, 133, 137, 138 Leverage, 3, 125–138

C Confession voluntariness, 51, 57, 58, 62, 64, 66, 67 Consent, 3–5, 9, 10, 12, 13, 15, 22, 41–49, 79, 82, 83, 85, 92 Constitution, 3–24, 28, 33, 44–46, 48, 51, 52, 60, 69–71, 77, 90, 93, 94, 102–104, 112, 128, 142, 146, 147, 150, 151 Conviction Integrity Units (CIUs), 7, 109, 115, 116, 120–123

M Mental health, 4, 27–40, 144 Miranda warnings, 5, 19, 22, 51–56 Moral injury, 3, 4, 27–40, 152

D Data privacy, 76, 87, 93, 94 F Fairness, 10, 31, 55, 65, 67, 102, 123, 125, 126, 133, 138, 142, 144, 147, 151, 152 Fair trial, 15, 109, 125, 138, 142, 144, 149 Fifth Amendment, 21, 23, 46, 47, 52–56, 60, 61, 67 Fourth Amendment, 3, 6, 15–17, 23, 41–48, 69–94, 100, 101 I Innocence projects, 59, 81, 109, 113, 115–117, 121, 122, 149

O Officer well-being, 27 P Plea bargaining, 3, 7, 8, 111, 123, 125–138 Police culture, 30–32, 35, 39, 56 Police deception, 4, 5, 15, 41–49, 51–68, 73 Police interrogation tactics, 56, 58, 62 Police-involved shootings, 95, 99 Policing for profit, 95, 96 Prosecutorial power, 110–112, 123, 125–131, 133 Q Qualified immunity, 6, 95, 103–105 S Searches and seizures, 15, 16, 41, 42, 45, 46, 69, 74–76, 78, 100, 101 Secrecy, 75, 76, 84, 90, 94, 126, 133 Sentencing laws, 125, 126, 129, 130

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 C. E. MacLean, J. A. Densley, Police, Prosecutors, Courts, and the Constitution, https://doi.org/10.1007/978-3-031-39082-1

177

178 Social contract, 3, 4, 6, 8–24, 46, 48, 51, 52, 56, 60, 61, 69, 71, 78, 88–91, 93, 94, 116, 142, 148, 150–152 Stop and frisk, 43, 95, 96, 101 Supreme, 12, 28, 43, 51, 55, 78, 104 Supreme Court, 3–7, 9–11, 15–22, 24, 41, 43–47, 52–58, 60–63, 67, 69, 70, 72–78, 81–84, 89, 91, 93–103, 110, 118, 127–129, 133, 141, 145–147, 151, 152

Index T Technology, 5, 6, 34, 41, 45, 49, 69–94, 119 Trauma, 3, 4, 27–40, 150, 152 W Warren Court, 3, 9, 17–24, 53–54, 94 Wrongful convictions, 5, 7, 20, 31, 51, 52, 81, 109, 110, 113, 115, 116, 118, 120, 123, 141, 149, 150