ARTICLESRace and the American Criminal JusticeSystem: Three Arguments About CriminalLaw, Social Science, and CriminalProcedure ∗HARVEY GEE INTRODUCTION The last two years have witnessed a two-year rise in the rate of violentcrime in large United States metropolitan cities. 1 Simultaneously, the rateof incarceration in the United States is continuing to rise at unprecedentedrates. The Sentencing Project notes that “the number of people in prisonsand jails increase[ed] from 330,000 in 1972 to 2.1 million today.” 2 Thisdramatic observation is produced by many factors, among them: changingcrime rates, strict sentencing, politics, culture, and demographics. 3 Therehas been no consensus on these new realities; however, sentencing lawsand increased incarceration is often referred to as the solution to addressincreasing crime rates. A reliance on this approach will exclusively imposea heavy burden on courts and communities, while having only a marginalimpact on crime. 4 The racial divide in crime and punishment in America is ∗ The author is a Washington, D.C. attorney; LL.M, The George WashingtonUniversity Law School, J.D., St. Mary’s University School of Law; B.A. Sonoma StateUniversity. 1. Lara Jakes Jordan, Study Finds Violent Crime On Rise in U.S. Metro Areas, DEN.POST, Mar. 9, 2007, at 2A. 2. RYAN S. KING, MARC MAUER & MALCOM C. YOUNG, THE SENTENCING PROJECT:INCARCERATION AND CRIME: A COMPLEX RELATIONSHIP 1 (2005); see also Marc Mauer,Thinking About Prison and Its Impact in the Twenty-First Century, 2 OHIO ST. J. CRIM. L.607, 607 (2005). 3. KING, MAUER & YOUNG, supra note 2. 4. Id. at 8; see also Mauer, supra note 2 at 611 (“As with offenders, imprisonmenthas always posed a set of burdens on the family members of people in prison. These haveincluded financial strains, psychological burdens, and social stigma. All of these dynamicsstill exist, but mass imprisonment has created a considerably greater level of effects in manyneighborhoods.”); Marc Mauer, Why Are Tough on Crime Policies So Popular?, 11 STAN.
116 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 85:115also exacerbated by unequal treatment in sentencing. The American BarAssociation (“ABA”) has called for the elimination of such disparities insentencing for cocaine offenses: “We continue to believe that Congressshould amend federal statutes to eliminate the mandatory differentialbetween crack and powder cocaine and that the Commission shouldpromulgate guidelines that treat both types of cocaine similarly.” 5Professors Franklin Zimring and Sam Kamin conducted a study on theimpact of California’s Three Strikes and You’re Out Legislation on crimeand punishment, concluding that reduction in the crime rate as a result ofimposing three strikes was minimal. 6 In fact, according to their study ofthree cities: San Francisco, Los Angeles, and San Diego, the Three Strikeslaw reduced California crime by only six-tenths of one percent. 7 Since its implementation, the Three Strikes law has had a major effect on the . . . prison population. Since 1994, the courts have sent over 80,000 second strikers and 7,500 third strikers to state prison. . . . As of December 31, 2004, there were almost 43,000 inmates serving time in prison under Three Strikes law, making up about 26 percent of the total prison population. 8 Interestingly, the sentiments of California voters who want criminalsto be locked up under toughened sentences are at odds with their oppositionto spending more money to build more prisons. 9 The nonpartisan PublicPolicy Institute of California presented survey findings that showed justthirty-four percent of the public supported more prison funding whilenearly two-thirds opposed it. 10 Similarly, the Texas prison officials areoverwhelmed with a staggering prison population, which is draining thestate’s prison budget. In response, Texas politicians are consideringalternatives to incarceration, including early parole, as well as drug andL. & POL’Y REV. 9, 13 (1999) (“The relative ineffectiveness of more and longer prisonsentences in reducing crime is well known among criminologists and practitioners in thefield of a criminal justice.”). 5. Eliminating Disparities in Sentencing for Cocaine Offenses, Before the U.S.Sentencing Commission, Nov. 14, 2006, at 2, available athttp://www.ussc.gov/hearings/11_15_06/Saltzburg-ABAtestimony.pdf (statement ofStephen A. Saltzburg on behalf of the American Bar Association). 6. ZIMRING ET AL., CRIME AND PUNISHMENT IN CALIFORNIA: THE IMPACT OF THREE-STRIKES AND YOU’RE OUT 86 (1999). 7. Id. at 66. 8. LEGISLATIVE ANALYST’S OFFICE, A PRIMER: THREE STRIKES-THE IMPACT AFTERMORE THAN A DECADE 15 (Oct. 2005), available athttp://www.lao.ca.gov/2005/3_Strikes/3_strikes_102005.pdf. 9. See David Lesher, Crime or Punishment, L.A. TIMES, Feb. 18, 2007, at 2, availableat 2007 WLNR 3229458. Colorado is also grappling with the problem of prisonovercrowding and recidivism. See Ann Imse, Revolving Door to State Prisons, ROCKYMOUNTAIN NEWS, Feb. 16, 2007, at 34, available at 2007 WLNR 3060813. 10. Lesher, supra note 9.
Winter 2008] RACE AND AMERICAN CRIMINAL JUSTICE 117alcohol treatment. 11 On the national level, the federal prison population isalso swelling; and Congress will eventually have to address the prisondilemma as well. 12 “[T]he federal prison population grew from 133,921 in1999 to 191,988 in September” of 2006. 13 The Justice Department’sBureau of Prisons, in trying to accommodate overcrowding andunderstaffing, has been operating at 130 percent or more of capacity.14These sobering facts support the growing concern that the federal and stategovernments may have to focus on effective alternatives. The ABA recognizes the seriousness of issues facing the Americanjustice system, and has concluded that America’s criminal justice systemsare too heavily relying on incarceration, and more effective alternatives arenecessary. 15 To this end, the ABA Justice Kennedy Commission has maderecommendations to address “sentencing and incarceration issues, racialand ethnic disparities in criminal justice systems, prison conditions andprisoner reentry issues, and pardons and clemency processes.” 16 TheCommission recommends programs that help inmates transition back intocommunities and “provide[s] alternatives to incarceration for offenderswho would benefit from substance abuse and mental illness programs.” 17Professor Stephen Saltzburg, chair of the Commission, remarked, “[t]heserecommendations are intended to make our criminal justice systems moreeffective and to utilize our limited resources more efficiently[.]” 18Likewise, criminologist Elliot Currie suggests that the justice systemshould emphasize crime prevention, and sincere efforts should be made tointegrate offenders into society instead of locking people behind bars. 19 Against this backdrop, this article makes some casual observationsabout crime, policing, sentencing, and criminal justice. Aside from theoccasional consideration of race and criminal justice in conjunction withone another, the American justice system is typically considered in itsordinary terms: punishment for offenders, regardless of the race or class ofinmates. A closer look would reveal that African Americans are morelikely victimized by crime than are other groups, and African Americansexhibit higher rates of serious offending and/or lengthier criminal historiesthan other groups. This is reflected in the composition of the prison 11. See Seth Stern, Lean Times Spur Hard Look at Prison Population Boom, CQWEEKLY, Sept. 8, 2006. 12. Id. 13. Id. 14. Id. 15. American Bar Association Report Proposes Changes to Criminal Justice System,DAILY REC. (Rochester, N.Y.), June 28, 2004, available at 2004 WLNR 19602758. 16. Id. 17. Id. 18. Id. (quoting Professor Stephen Saltzburg, chair of the ABA Justice KennedyCommission). 19. See ELLIOT CURRIE, CRIME AND PUNISHMENT IN AMERICA 2 (1998).
118 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 85:115population. 20 “For property offenses, African Americans constituted 32[percent] of arrests in 1996, disproportionate to their 13 [percent] share ofthe national population.” 21 For violent crimes, African American offense“rates are considerably higher than for other groups, accounting for 43[percent] of those arrests in 1996.” 22 Since 1980, the “war on drugs” hasbeen the most significant factor contributing to the rise of prison and jailpopulations. 23 Drug policies have also had a disproportionate impact onAfrican Americans and have exacerbated the racial disparities that alreadyexisted within the criminal justice system. This has come about in twoways: first, there has been an overall increase of drug offenders in thecriminal justice population; and second, many of these drug offenders areAfrican Americans. 24 These statistics demonstrate the need for the reformssuch as the development of drug courts that divert addicts from prison andsupervise their recovery. This article makes three interrelated arguments about the real-worldapplication of criminal law and procedure: (1) criminal sentencing lawssuch as California’s Three Strikes Law and California’s Penal Code section148.6, which criminalizes the filing of false complaints against policeofficers, are shortsighted, have fallen short of their intended results, andtheir enforcement have had a disproportionate effect on minoritycommunities; (2) the issue of cross-racial eyewitness identification in thecontext of rules of evidence in the courtroom has demonstrated that socialscience has been useful in understanding the influence of race in criminaltrials; and (3) existing criminal procedure jurisprudence has proven tocreate burdens on criminal defendants. These arguments reinforce theinterplay between race, crime, and justice, and implicitly make theassertion that the role of discretion in the criminal justice system andmanner in which these discretionary actions, when aggregated together, canlead to racial unfairness. Professor David Cole argues that race plays animproper role in the administration of criminal justice and that if nothingsignificant is done, the probability of racial inequalities will exacerbate thecrime problem. 25 This idea needs to be explored in greater detail than thecurrent literature on criminal punishment and race jurisprudence hasprovided thus far. 20. See MARC MAUER, THE CRISIS OF THE YOUNG AFRICAN AMERICAN MALE AND THECRIMINAL JUSTICE SYSTEM 2, 4 (1999). 21. Id. at 4. 22. Id. 23. See Marc Mauer, Why Are Tough on Crime Policies So Popular?, 11 STAN. L. &POL’Y REV. 9, 10 (1999) (arguing that Three Strikes was not the primary reason for thefalling crime rate). 24. Id. at 10, 11, 15, 16. 25. See DAVID COLE, NO EQUAL JUSTICE: RACE AND CLASS IN THE AMERICANCRIMINAL JUSTICE SYSTEM 1 (1999).
Winter 2008] RACE AND AMERICAN CRIMINAL JUSTICE 119 I. DISPROPORTIONATE EFFECT ON MINORITY COMMUNITIES Two California laws, the Three Strikes Law and Penal Code section148.6, as well as similar laws across the nation, have had a detrimentaleffect on minority communities. Their costs have outweighed theireffectiveness. First, California’s Three Strikes Law (“Three Strikes”) waspassed by the California Legislature, and later by voters. The law makeslife sentences mandatory for third strikes, with no parole possible for 25years. The chief reason for its broad sweep is a unique rule, counting anyfelony as a third strike. In a collaborative work, Professor Franklin Zimring, Gordon Hawkinsand Sam Kamin, argue that Three Strikes is not working. In their bookentitled, Punishment and Democracy, 26 the authors reveal that California’sThree Strikes is a poorly drafted law that causes functional andconstitutional problems, such as disproportionate and, sometimes, extremesentences. 27 It was quite possible that California voters did not realize theseverity of the typical sentences that would be imposed under the ThreeStrikes law. According to the authors, “[w]hereas most penal laws aredesigned to deliver less drastic changes than they advertise—to bark louderthan they bite—the California statute was designed to operate even morebroadly than its specialized title would suggest. [Three Strikes] was a lawdesigned to bite louder than it barked.” 28 Due to Three Strikes being seemingly at odds with the language of theEighth Amendment, the application of the law has resulted in considerabledebate over the constitutionality and propriety of such laws. Supporters ofThree Strikes reason that such laws are necessary to keep serious criminalsbehind bars. 29 Additionally, former California Governor Gray Davis says,“people who are guilty of three strikes are generally guilty of many morecrimes, and it has led to a great increase in public safety over the pastdecade.” 30 On the other hand, critics of Three Strikes argue that the lawsweeps beyond its ambit, by subjecting even offenders who havecommitted non-serious felonies, to harsh and lengthy sentences. 31Accordingly, Professor Stephen Saltzburg suggests that, 26. See FRANKLIN E. ZIMRING, ET AL., PUNISHMENT AND DEMOCRACY: THREE STRIKESAND YOU’RE OUT IN CALIFORNIA (2001). 27. See id. 28. See id. at ix. 29. See Bob Egelko, “Three Strikes” Ruled Unjust in Shoplifting Convictions, S.F.CHRON., Feb. 8, 2002, at A1; but see Marc Mauer, Why Are Tough on Crime Policies SoPopular?, 11 STAN. L. & POL’Y REV. 9 (1999) (arguing that Three Strikes was not theprimary reason for the falling crime rate). 30. David Kravets, Supreme Court Upholds Long Sentences Under Three-Strikes Lawsfor Repeat Criminals, Mar. 6, 2003, available athttp://www.cjcj.org/press/three_strikes.html. 31. Id.
120 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 85:115 [n]ot only are mandatory minimum sentences often harsher than necessary, they too frequently are arbitrary, because they are based solely on “offense characteristics” and ignore “offender characteristics.” In addition, mandatory minimum sentences can actually increase the very sentencing disparities that they, in theory at least, are intended to reduce. 32 A few years ago, the debate was settled by the U.S. Supreme Court.In Lockyer v. Andrade 33 and Ewing v. California, 34 a pair of 5-4 decisions,the U.S. Supreme Court left intact the nation’s toughest sentencing law,and most likely guaranteed the survival of laws in many states thatfollowed California’s lead by imposing harsh prison terms for repeatoffenders. 35 In both cases, Justice Sandra Day O’Connor, writing for themajority of the Court, ruled to uphold California’s Three Strikes law. TheCourt held that the California Legislature had the “broad discretion tofashion a sentence that fits within the scope of the proportionalityprinciple” 36 and that the gross disproportionality principle was not violatedwhen Andrade was sentenced to two consecutive terms of 25 years to lifein prison. 37 In Ewing, after attempting to more clearly define the existenceand contours of any proportionality requirement contained in the EighthAmendment, the Court then applied the principle to the facts of the case. 38Like prior Eighth Amendment cases before it, the opinion is not a “modelof clarity,” and it is still not entirely clear whether the Eighth Amendmentcontains a proportionality requirement, and if so how to apply it. 39Nevertheless, the constitutionality of the Three Strikes law is seemingly nolonger in doubt. For all practical purposes, the rulings will make it “extremely difficultto win court review of sentences.” 40 Professor Zimring suggests that the“principal message [of Andrade and Ewing] is [that it is] business as 32. Eliminating Disparities in Sentencing for Cocaine Offenses, Before the U.S.Sentencing Commission, Nov. 14, 2006, at 2, available athttp://www.ussc.gov/hearings/11_15_06/Saltzburg-ABAtestimony.pdf (statement ofStephen A. Saltzburg on behalf of the American Bar Association). 33. 538 U.S. 63 (2003). 34. 538 U.S. 11 (2003). 35. See e.g., Dana Wilkie, Divided Court Upholds State’s 3-Strikes Law, SAN DIEGOUNION-TRIB., Mar. 6, 2003, at A1; Joan Biskupic, Tough Crime Laws OK’d, USA TODAY,Mar. 6 2003, at 1A, available at http://www.usatoday.com/news/washington/2003-03-05-crime-law-usat_x.htm; David Steinberg, Commendable Restraint: Supreme Court ActedAppropriately in Three-Strikes Ruling, SAN DIEGO UNION-TRIB., Mar. 12, 2003, at B7. 36. Andrade, 538 U.S. at 65. 37. Id. at 74 n.1. 38. See Ewing, 538 U.S. 11. 39. Id. at 31-32 (Scalia & Thomas, JJ., concurring) (concluding that the EighthAmendment does not contain a proportionality requirement). 40. National Public Radio: All Things Considered (National Public Radio, Mar. 5,2003), available at 2003 WL 16702623.
Winter 2008] RACE AND AMERICAN CRIMINAL JUSTICE 121usual.” 41 In fact, the legal community is now reacting in divergent ways.Ninth Circuit Court of Appeals Judge Harry Pragerson has ignored U.S.Supreme Court precedent, by dissenting from unpublished affirmances. 42Even before trial, some Los Angeles prosecutors have “halted prosecutionof most nonviolent third-strikers” in cases where presiding judges wouldstrictly adhere to following recent judicial precedent. 43 Federal Judge Nancy Gertner refused to apply a three strikes recidivistsentencing law to an African American defendant in Massachusetts, whohad been convicted of his third offense. 44 Because his prior convictionshad been automobile-related and minor drug charges (not reflecting ahistory of violence), and taking judicial notice of how African Americanmotorists are frequently subjected to police profiling and suspicions, so thatthose prior convictions could easily have been the product of racism, JudgeGertner refused to apply the three strikes law. 45 Judge Gertner concludedthat the defendant’s record overstated his culpability and the likelihood ofhis recidivism, and therefore sentenced him, instead to the shorter sentenceof a non-recidivist first or second offender. 46 The vast majority of police minority interactions are routine instancesof police abuse that often go unnoticed. Often, young African Americanmales have been targeted by law enforcement under the guise ofinvestigative profiling. 47 Undoubtedly, police brutality has shaped thehistory of African Americans and the criminal justice system. 48 A few years ago, in Chaker v. Crogan, 49 the issue of policemisconduct was addressed when the U.S. Court of Appeals for the NinthCircuit overturned a 2002 California Supreme Court decision, 50 which heldthat California Penal Code section 148.6 does not violate free speech rightsembodied in the First Amendment and that statutory provisions governingoffenses of knowingly filing a false charge of police misconduct are not 41. Matt Krupnick, Supreme Court Upholds Three-Strikes Punishment, CONTRACOSTA TIMES, Mar. 6, 2003, at a1 (quoting Professor Zimring). 42. Jason Hoppin, Judge Bucks Third-Strike Rules, THE RECORDER (San Francisco),May 28, 2003, at 1. 43. Nicholas Riccardi, Prosecutors Seek Fewer 3rd Strikes, L.A. TIMES, May 27,2003, at B1. 44. See United States v. Leviner, 31 F. Supp. 2d 23 (D. Mass. 1998). 45. See id. at 24. 46. Id. at 23. 47. See DAVID A. HARRIS, PROFILES IN INJUSTICE: WHY RACIAL PROFILING CANNOTWORK (2002); see also DAVID A. HARRIS , GOOD COPS: THE CASE FOR PREVENTIVE POLICING(2005). 48. See MARC MAUER, THE CRISIS OF THE YOUNG AFRICAN AMERICAN MALE AND THECRIMINAL JUSTICE SYSTEM 5 (1999). 49. 428 F.3d 1215 (9th Cir. 2005). 50. People v. Stanistreet, 58 P.3d 465, 473 (Cal. 2002), cert. denied, 538 U.S. 1020(2003).
122 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 85:115facially overbroad. 51 The origins of section 148.6 of the California PenalCode can be traced to the Rodney King riot in March 1991, after which lawenforcement agencies throughout the state revised their citizen complaintprocedures to promote greater accountability on the part of their “lineofficers.” In 1995, the California legislature ratified California Penal Codesection 148.6, making it a crime to knowingly file a false citizencomplaint. 52 Section 148.6 created an exception to the rule protectingcitizen complainants from criminal defamation prosecutions. Through theenactment, California law treated one subcategory of citizen complaintsagainst public officials—complaints against peace officers—differentlyfrom all others. Two related themes run through the Chaker decision: (1) avenues forcitizens to voice complaints against the police must be available; and (2)independent citizen review boards can serve as checks on police conduct. To begin, Chaker’s importance stems from its potential impact oncitizens who want to file complaints against the police. Citizens maybecome the targets of police abuse and misconduct. 53 In situations wherearrestees believe they may have been mistreated by a peace officer, theopportunity to file a police complaint allows the arrestees to voice theirgrievances or concerns about what could be misconduct by an officer.However, difficulties remain in implementing laws against filing falsecomplaints against law enforcement officials. For example, whodetermines whether a police officer is acting improperly under establishedpolice department policy, or is merely being rude or inconsiderate butlawful? Would an arrestee be able to determine whether handcuffs are ontoo tight? If the arrestee is grabbed, pushed, or kicked, how could he seekan inquiry into whether the physical contact was appropriate given thecircumstances of the arrest? Next, in an effort to strike a balance between the interests ofprotecting individuals from improper police methods and promotingeffective law enforcement, independently-operated review boards are onepossibility. For example, Denver has established an Office of theIndependent Monitor which conducts independent investigations ofuniformed personnel including Denver’s Police, Sheriff, and FireDepartments, and makes recommendations about administrative and 51. Id. See also Bob Egelko, Court Backs Cops on Complaint Law; Falsely AccusingOfficers of a Crime, S.F. CHRON., Dec. 6, 2002, at A26 (“To the delight of police groupsand the dismay of civil libertarians, the state Supreme Court . . . upheld a California law thatmakes it a crime to file knowingly false complaints against law enforcement officers.”). 52. 1995 Cal. Legis. Serv. page no. 590 (West) (enacting California Penal Code §148.6). Section 148.6(a)(1) provides in pertinent part that, “every person who files anyallegation of misconduct against any peace officer . . . knowing the allegation to be false, isguilty of a misdemeanor.” CAL. PENAL CODE § 148.6 (a)(1) (West 2006). 53. See Carlos Illescas, $610,000 Settles Police Shooting, DEN. POST, Feb. 8, 2007, atA1.
Winter 2008] RACE AND AMERICAN CRIMINAL JUSTICE 123disciplinary actions. The Citizen Oversight Board oversees the Office ofthe Independent Monitor, and is responsible for: “(1) assessing whether theOffice of the Independent Monitor is effectively performing its duties; (2)making recommendations regarding policy and training issues; . . . (4)directing the Monitor to monitor or review certain cases; and (5) addressingother issues of concern to the community and other interestedstakeholders.” 54 Notably, the Office of the Independent Monitor has an important rolegiven Denver’s recent refocus on combating gangs after the slaying ofDenver Broncos cornerback Darrent Williams in an early New Year’s Daydrive-by shooting. 55 Like in other cities, gangs have continued to representa pressing issue for Denver. 56 It is a problem that has compelled DenverDistrict Attorney to call for the revitalization of the Metro Denver GangCoalition, a task force to combat gangs and gang violence. 57 Likewise, in San Francisco, voters added police oversight reform andaccountability measures to the City Charter by passing an amendmentthereto. 58 The amendment restructures the San Francisco PoliceCommission and grants additional powers to the civilian-run Office of 54. OFFICE OF THE INDEPENDENT MONITOR, CITY’S OVERSIGHT SYSTEM 1, (Denver,Colo.), (Sept. 28, 2004), available athttp://www.denvergov.org/Portals/374/documents/Citys%20Oversight%20System.pdf. 55. See Christopher N. Osher & Felissa Cardona, $460,000 Sought by DA to BattleDenver’s Gangs, DEN. POST, Feb. 22, 2007, at A1; Christopher N. Osher, DA Refines Gang-Fight Plan, DEN. POST, Mar. 6, 2007, at B2. 56. See April M. Washington, Pressure on Mayor to Crush Gang Problem, ROCKYMOUNTAIN NEWS, Feb. 10, 2007, at 4, available at 2007 WLNR 2666448. 57. Id. See Christopher N. Osher, “Police, Schools, Service Providers and the Faith-Based Community: Everyone is at the Table to Say, ‘I’m Prepared to do What I Can.’” AllAre in to Go All Out vs. Gangs, DEN. POST, Mar. 8, 2007, at A1; Felisa Cardona, Safety inCrime Numbers Denver Reports 10 Percent Decline, DEN. POST, Feb.14, 2007, at B1. Aninteresting related issue combining gangs and the First Amendment are anti-gang statutes.See e.g., Chicago v. Morales, 527 U.S. 41 (1999); People ex rel. Gallo v. Acuna, 929 P.2d596 (Cal. 1997); Kim Strosnider, Anti-Gang Ordinances After City of Chicago v. Morales:The Intersection of Race, Vagueness Doctrine, and Equal Protection in the Criminal Law,39 AM. CRIM. L. REV. 101, 102 (2002) (exploring the vagueness doctrine and its influenceon communities’ efforts to control gangs and shape public order); Matthew MickleWerdegar, Enjoining the Constitution: The Use of Public Nuisance Abatement InjunctionsAgainst Urban Street Gangs, 51 STAN. L. REV. 409 (1999); Edson McCellan, Note, Peopleex rel. Gallo v. Acuna: Pulling in the Nets on Criminal Street Gangs, 35 SAN DIEGO L. REV.343 (1998); Bart H. Rubin, Hail, Hail, The Gangs Are All Here: Why New York ShouldAdopt A Comprehensive Anti-Gang Statute, 66 FORDHAM L. REV. 2033 (1998). 58. Demian Bulwa, Police Union Taps Harris in D.A. Runoff; Ammiano BacksIncumbent Hallinan, S.F. CHRON., Nov. 27, 2003, at A21; Press Release, ACLU of NorthernCal., S.F. Bd. of Supervisors Approves to Charter Amendment to Strengthen PoliceAccountability (July 16, 2003), available athttp://www.aclunc.org/news/press_releases/san_francisco_board_of_supervisors_approves_to_charter_amendment_to_strengthen_police_accountability.shtml.
124 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 85:115Citizen Complaints. 59 The amendment is consistent with the goal ofhaving a properly administered complaint review system serving both theinterests of the police and the interests of the community. 60 In sum, through such review boards and oversight measures, theinterests of the state in reviewing credible allegations of police misconductmay be better served, as these neutral civilian review boards mitigate therisk of placing a person in the precarious position of having to think twicebefore lodging any formal allegation of misconduct with the policedepartment. II. SOCIAL SCIENCE AND THE RULES OF EVIDENCE IN COURT: CROSS- RACIAL EYEWITNESS TESTIMONY Social science has informed conventional understandings of theinfluence of race in law. 61 There has been a growing body of social scienceresearch that reveals the important role in which race plays in assessing thereliability of witness identification when the witness and the personidentified are of the same or of different races. 62 59. S.F. Bd. of Supervisors Approves to Charter Amendment to Strengthen PoliceAccountability, supra note 58; see e.g., S.F., Cal. Consolidated Municipal Election,Proposition H: Police Commission/Office of Citizen Complaints (Nov. 4, 2003), availableat http://sfpl4.sfpl.org/pdffiles/November4_2003.pdf. The Office of Citizen Complaints(“OCC”) “operates under the purview of the city Police Commission. Commissionmembers and the OCC director serve at the mayor’s pleasure.” Herbert A. Sample, S.F.Board to Tackle Police Reforms A Possible Ballot Measure Would Aim to Strengthen TheAgency That Reviews Citizen Complaints Against Officers, SACRAMENTO BEE, July 13,2002, at A3 (“The city charter requires the Police Department to provide ‘full and promptcooperation’ with the OCC, which also enjoys investigatory powers, though it cannot issuesubpoenas.”). The Charter and the SFPD’s regulations require the Department to promptlyand fully cooperate with OCC investigations. Id. Despite this unequivocal mandate, theDepartment has hampered OCC’s investigations in significant ways. Id. See generallyMark Schlosberg, Op-Ed., Public Eyes: ‘Fajitagate’ Scandal Puts Police Accountability atForefront, ACLU N. CAL., May 22, 2003,http://www.aclunc.org/news/opinions/public_eyes_fajitagate_scandal_puts_police_accountability_at_forefront.shtml (last visited July 12, 2008) (“According to the OCC report, theDepartment is lax in handing out discipline and the obstruction and delays cited in the reportsend a signal to rank and file officers that misconduct will not be taken seriously. Moreimportantly, the Police Commission, which oversees the Police Department, has donenothing to address these issues and, in fact, has at times been complicitous in underminingthe OCC.”). 60. See Harold Beral & Marcus Sisk, Note, The Administration of Complaints byCivilians Against the Police, 77 HARV. L. REV. 499 (1964) (noting that almost every cityhad a system in place to process and investigate citizen complaints of police misconduct). 61. See Ian F. Haney Lopez, The Social Construction of Race: Some Observations onIllusion, Fabrication, and Choice, 29 Harv. C.R.-C.L. L. REV. 1, 5-6 (1994) (“Race may beAmerica’s single most confounding problem, but the confounding problem of race is thatfew people seem to know what race is.”). 62. See generally Cindy J. O’Hagan, Note, When Seeing is Not Believing: The Casefor Eyewitness Expert Testimony, 81 GEO. L.J. 741 (1992); Christopher M. Walters,
Winter 2008] RACE AND AMERICAN CRIMINAL JUSTICE 125 “Legal observers have [also] long recognized that cross-racialidentifications by witnesses are disproportionately responsible for wrongfulconvictions.” 63 In her law review article, Cross-Racial IdentificationErrors in Criminal Cases, Professor Sheri Lynn Johnson analyzes theproblem of unreliable cross-racial identifications, and concludes that thereis a much greater possibility of error when the races are different than whenthey are the same. 64 The core of Professor Johnson’s legal scholarship isbuilt upon the earlier groundbreaking studies completed by psychology andlaw professor Elizabeth Loftus. In her book, Eyewitness Testimony, 65Loftus presents a compelling thesis: eyewitness testimony is not alwaysaccurate or reliable. Furthermore, eyewitness testimony has been the basisfor falsely identifying, convicting, and even jailing innocent people. 66Loftus’ research provides empirical proof that inaccurate eyewitnessidentification undermines the reliability and integrity of courtroomtestimony. The findings in Eyewitness Testimony may help to illustrate theimportance of expert witness testimony in criminal cases. The influence ofrace in eyewitness identifications, and the inconsistent use of experttestimony by the courts will likely continue. Perhaps the most reasonableproposal is to routinely admit expert testimony to inform the jury and toprovide it with reasons to be skeptical. While the admittance of experttestimony is not a panacea for the problem of inaccurate witnessidentification, it would certainly assist judges and juries in understandingthe importance of accurate eyewitness testimony. 67 In State v. Cromedy, 68 the Supreme Court of New Jersey addressed theissue of whether a cross-identification jury instruction should be required inparticular cases prior to the establishment of a substantial agreement in thescientific community that cross-racial recognition impairment of anComment, Admission of Expert Testimony on Eyewitness Identification, 73 CAL. L. REV.1402 (1985). 63. Sheri Lynn Johnson, Cross-Racial Identification Errors in Criminal Cases, 69CORNELL L. REV. 934, 935-36 (1984); see also PATRICK M. WALL, EYE-WITNESSIDENTIFICATION IN CRIMINAL CASES 122-25 (1965); MARTIN YANT, PRESUMED GUILTY:WHEN INNOCENT PEOPLE ARE WRONGLY CONVICTED 99 (1991); BRIAN L. CUTLER & STEVEND. PENROD, MISTAKEN IDENTIFICATION: THE EYEWITNESS, PSYCHOLOGY, AND THE LAW 104(1995); Fred L. Borch, Witness for the Defense, 134 MIL. L. REV. 243, 243-44 (1991); SheriLynn Johnson, Black Innocence and the White Jury, 83 MICH. L. REV. 1611, 1615 (1985). 64. See Sheri Lynn Johnson, Cross-Racial Identification Errors in Criminal Cases, 69CORNELL L. REV. 934 (1984); see also Robin Parker, “They All Look Alike” - A HistoricalPerspective on State v. Cromedy, N.J. LAW., Aug. 2000, at 57. (“After centuries ofexperience, courts have concluded that eyewitness identifications of strangers may beunreliable evidence unless other facts link a defendant to the crime. The problem isespecially thorny when a witness identifies a stranger of a different race.”). 65. See ELIZABETH F. LOFTUS, EYEWITNESS TESTIMONY (1996). 66. Id. at xi. 67. See Henry F. Fradella, Why Judges Should Admit Expert Testimony on theUnreliability of Eyewitness Testimony, 2006 FED. CTS. L. REV. 3, 3-5 (2006). 68. 727 A.2d 457 (N.J. 1999).
126 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 85:115eyewitness is significant enough to warrant a special jury instruction. 69 InCromedy, the court reviewed a rape and robbery in which a cross-racialidentification was made seven months after the offense occurred. 70 Basedon the victim’s inability to identify the defendant in a photograph, theseven-month investigation lag time, and the racial differences between thedefendant and the victim, defense counsel sought a cross-racialidentification jury instruction. The proposed jury instruction was, “[y]oumay consider, if you think it is appropriate to do so, whether the cross-racial nature of the identification has affected the accuracy of the witness’soriginal perception and/or accuracy of a subsequent identification.” 71 Cromedy argued that cross-racial impairment of an eyewitness is a“scientifically accepted fact.” 72 In addition, Cromedy maintained thatcourts can take “judicial notice of the fallibility of trans-racialidentifications and approve the report of the Task Force that recommendedadoption of a cross-racial identification jury charge.” 73 The Statecontended that “there is no consensus within the scientific community thatan ‘own-race’ bias exists” or whether it affects “real life” identifications. 74The State urged the supreme court not to endorse a cross-racial juryinstruction until “there is general acceptance that cross-racial impairmentexists.” 75 The court held that “the trial court’s failure to submit defendant’srequested charge on cross-racial identification . . . constituted reversibleerror.” 76 More recently, the Maryland Court of Appeals reversed twodefendants’ convictions and vacated their sentences when it found that thetrial judge erred in precluding the defendants from discussing cross-racialidentification in closing arguments. 77 The court concluded that when thesingle piece of evidence introduced against a defendant is eyewitnesstestimony, the defense is entitled to argue about the inaccuracies of cross-racial identification in closing argument. 78 In particular, it found that thetrial court’s denial of the victim’s testimony regarding her enhanced abilityto recognize faces, raised during trial in its closing argument, was an abuseof discretion. 79 69. Id. at 458. 70. Id. 71. Id. at 460. 72. Id. 73. Id. at 460-61. 74. Id. at 461. 75. Id. 76. Id. at 457. 77. Smith v. State, 880 A.2d 288, 289 (Md. 2005). 78. Id. at 300. 79. Id.
Winter 2008] RACE AND AMERICAN CRIMINAL JUSTICE 127 III. RACE REFLECTED IN CRIMINAL PROCEDURE All too often, racial minorities have been disadvantaged by criminalprocedure rules that are race-neutral, as the rules have had adisproportionate effect on communities of color. The subject of criminalprocedure will be examined with regard to the Fourth Amendmentexclusionary rule and third-party residential searches. Following a majority of circuits, 80 the U.S. Court of Appeals for theSixth Circuit in United States v. Pruitt 81 recently held that “reasonablebelief” is a lesser standard than “probable cause,” and that only areasonable belief that a suspect is within the residence, based on commonsense factors and the totality of circumstances, is required and is sufficientto allow officers to enter a residence to enforce an arrest warrant. 82 Pruittconcerned a defendant’s “appeal of the district court’s grant of theGovernment’s motion for reconsideration of [defendant’s] motion tosuppress evidence obtained during a protective sweep of a third-party’sresidence.” 83 When considering any search, it is important to remember theconstitutional protections in place which guard against unreasonablesearches and seizures. Particularly, the Fourth Amendment protectsindividuals from unlawful search and seizure. A search is unreasonablewhere it is performed by a government agent, the defendant had areasonable expectation of privacy and there was no warrant based onprobable cause. 84 Probable cause exists where known facts andcircumstances, of a reasonably trustworthy nature, are sufficient to justify aman of reasonable caution or prudence in the belief that a crime has been oris being committed. 85 Probable cause is what would lead a person ofreasonable caution to believe that something connected with a crime is onthe premises of a person or on the person themselves; it is also the sumtotal of layers of information and synthesis of what police have heard,know, or observe as trained officers. 86 If no warrant based on probable 80. See United States v. Barerra, 464 F.3d 496 (5th Cir. 2006); United States v. Route,104 F.3d 59, 62 (5th Cir. 1997); United States v. Risse, 83 F.3d 212, 217 (8th Cir. 1996);United States v. Lauter, 57 F.3d 212, 215 (2d Cir. 1995); United States v. Edmonds, 52 F.3d1236, 1248 (3d. Cir. 1995); United States v. Thomas, 429 F.3d 282, 286 (D.C. Cir. 2005). 81. 458 F.3d 477 (6th Cir. 2006). 82. Id. at 482, 483; see also Robert F. Ewald, The Lawful Scope of a Search WarrantIssued For a “Premises,” 8 J. SUFFOLK ACAD. L. 19, 23 (1992). [T]he protections of the exclusionary rule extend only to the area of a defendant’s reasonable expectation of privacy. Probable cause must set forth in the search warrant to authorize the invasion of that protected area. This area must be particularly described in the warrant. . . . [T]his requirement must be viewed in a common sense manner. Id. 83. Pruitt, 458 F.3d at 478. 84. See United States v. Jacobsen, 466 U.S. 109, 113 (1984). 85. Draper v. United States, 358 U.S. 307, 313 (1959). 86. See id.
128 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 85:115cause exists, there must be an exception to the warrant requirement, inorder for the search to be legal. 87 The Sixth Circuit’s holding in Pruitt that a law enforcement officer’sreasonable belief — and not probable cause — that a suspect is within aresidence is sufficient to enable him to enter such residence to enforce anarrest warrant was far from surprising. If nothing else, recent decisionssuch as Pruitt reinvigorate the debates about the exclusionary rule, and inparticular, discussions concerning the issue of reasonableness versusprobable cause. As Pruitt demonstrates, because Supreme Court rulingshave not offered clear standards for federal and state law enforcementofficers, it has been up to lower courts to decide its meaning and placewithin the context of the other Fourth Amendment standards. Here I argue that the Pruitt decision was wrongly decided, fordifferent reasons. The reasonable belief standard announced and applied inPruitt is insufficient in protecting the heightened privacy interest in thehome, which, as mentioned earlier, dictates the requirement of a searchwarrant for all nonconsensual and nonexigent searches in a privatedwelling. In order to understand Pruitt, it is necessary to consider thebackground created by earlier decisions of other circuits that ruledsimilarly: that the consideration of common sense factors and the totality ofcircumstances sufficiently formulate a reasonable belief that a suspect is onthe premises. In fact, even before Pruitt, a majority of federal courts heldthat reasonable belief is a lesser standard than probable cause. In UnitedStates v. Risse, 88 for example, the Eighth Circuit affirmed a district court’sdenial of a cross-appellant’s motion to suppress on the basis that the policehad a reasonable belief that appellant’s girlfriend, the subject of an arrestwarrant, resided with appellant at his home. 89 It was clear that the policehad a reasonable belief that the target of the arrest warrant was present atthe cross-appellant’s residence when the warrant was executed. The courtheld that the officer “possessed legal authority to enter the residencepursuant to a valid arrest warrant,” that “the seizure of evidence in plainview was valid, and the . . . search warrant was supported by probablecause.” 90 In a separate appellate decision, the Eleventh Circuit in United Statesv. Magluta 91 reversed a district court’s order granting defendant’s motionto suppress because the facts supported the marshals’ reasonable belief thatdefendant was home at the time of the entry and the evidence discovered in 87. Id. 88. 83 F.3d 212 (8th Cir. 1996). 89. Id. at 215-17. 90. Id. at 217. 91. 44 F.3d 1530 (11th Cir. 1995).
Winter 2008] RACE AND AMERICAN CRIMINAL JUSTICE 129plain view during a protective sweep was properly used to secure a searchwarrant. 92 The court held: [I]n order for law enforcement officials to enter a residence to execute an arrest warrant for a resident of the premises, the facts and circumstances within the knowledge of the law enforcement agents, when viewed in the totality, must warrant a reasonable belief that the location to be searched is the suspect’s dwelling, and that the suspect is within the residence at the time of entry. 93 In a similar vein, the Fifth Circuit in United States v. Barrera, 94 foundthat for entry into a third-party’s residence for a person named in an arrestwarrant, the police are required to exercise due diligence and have a“reasonable belief.” The same court, a decade ago, offered in United Statesv. Route, 95 the standard for determining the amount of due diligencerequired to support a reasonable belief that a defendant lives at and ispresent within a residence. In that case, police officers executed a validarrest warrant for defendant, Route, and found him outside of hisresidence. 96 During the search for a co-defendant, for whom officers alsohad a valid arrest warrant, officers found further evidence of Route’scriminal activity inside his residence. 97 Route challenged the districtcourt’s denial of his motion to suppress evidence seized from hisresidence. 98 The court held that the search of Route’s residence wassupported by a valid arrest warrant for the co-defendant and by the officer’sreasonable belief that the co-defendant lived at the residence and waswithin the residence at the time of entry. 99 The circuit court concluded thatthe arresting officer had performed sufficient due diligence in concludingthat the co-defendant lived at the residence because the co-defendant’scredit card applications, water and electricity bills, vehicle registration, andmailing address confirmed that he lived at the residence. 100 The courtfurther concluded that the officer’s reasonable belief that the co-defendantwas within the residence at the time of entry was confirmed by the presenceof a vehicle in the driveway and noise from a television inside theresidence. 101 92. Id. at 1535. 93. Id. 94. 464 F.3d 496 (5th Cir. 2006). 95. 104 F.3d 59 (5th Cir. 1997). 96. Id. at 61. 97. Id. at 62. 98. Id. at 61. 99. Id. at 62, 63. 100. Id. 101. Id. at 63.
130 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 85:115 In United States v. Thomas, 102 the U.S. Court of Appeals for the D.C.Circuit affirmed a denial of defendant’s motion to suppress, concluding thatentry into defendant’s apartment was lawful based on its holding that “anofficer executing an arrest warrant may enter a dwelling if he has only a‘reasonable belief,’ falling short of probable cause to believe, the suspectlives there and is present at the time.” 103 During the early morning, DeputyU.S. Marshals arrived at defendant’s apartment to execute a warrant for hisarrest in connection with a parole violation. 104 In dicta, the court notedthat, “[a]s for whether the officers had reason to believe Thomas would beat home when they executed the warrant, the early morning hour wasreason enough.” 105 During the following year, in Pruitt, the issue was whether officersmay rely on an arrest warrant, coupled with reasonable belief that thesubject of the warrant is within a third-party’s residence, to enter thatresidence to execute the warrant. 106 The defendant, Demetrius Pruitt,argued that the officer did not have “probable cause based on anuncorroborated anonymous tip and the statement of an unknown anduntested drug-seeking informant.” 107 The government argued “that a lesserreasonable belief standard, and not probable cause, [was] sufficient toallow officers to enter a residence to enforce an arrest warrant.” 108 Writing for the three-judge panel, 109 Circuit Judge David McKeaguebegan his formal analysis in the second part of the opinion by referencingthe leading case relied on by Pruitt: 110 Steagald v. United States. 111Steagald addressed the rights of a third-party homeowner when policeentered his home to search for a non-resident suspect named in an arrestwarrant, and held that police must obtain a search warrant before enteringthe third-party residence. 112 In that case, pursuant to an arrest warrant forRicky Lyons, Drug Enforcement Administration agents entered GarySteagald’s home to search for Lyons without first obtaining a searchwarrant. 113 In his home the agents found incriminating evidence, andarrested Steagald on federal charges. 114 Steagald moved to suppress allevidence uncovered during the search of his home on the ground that it was 102. 429 F.3d 282 (D.C. Cir. 2005). 103. Id. at 286. 104. Id. at 284. 105. Id. 106. United States v. Pruitt, 458 F.3d 477, 486 (6th Cir. 2006) (Clay, J., concurring). 107. Pruitt, 458 F.3d at 482 (majority opinion). 108. Id. 109. Also sitting were Siler & Clay, JJ. 110. Pruitt, 458 F.3d at 481. 111. 451 U.S. 204 (1981). 112. Id. at 205-06. 113. Id. at 206. 114. Id. at 206-07.
Winter 2008] RACE AND AMERICAN CRIMINAL JUSTICE 131illegally obtained because the agents had failed to obtain a searchwarrant. 115 The motion was denied, he was convicted, and the Fifth CircuitCourt of Appeals affirmed. 116 The Supreme Court reversed the Fifth Circuit Court of Appeals, andheld that the government is precluded from contending to the Court thatSteagald lacked an expectation of privacy in his searched home sufficientto prevail on his Fourth Amendment claim. 117 In robust dicta, the Courtstated: [W]hile the warrant in this case may have protected Lyons from an unreasonable seizure, it did absolutely nothing to protect [Steagald’s] privacy interest in being free from an unreasonable invasion and search of his home. Instead, [Steagald’s] only protection from an illegal entry and search was the agent’s personal determination of probable cause. In the absence of exigent circumstances, we have consistently held that such judicially untested determinations are not reliable enough to justify an entry into a person’s home to arrest him without a warrant, or a search of a home for objects in the absence of a search warrant. We see no reason to depart from this settled course when the search of a home is for a person rather than an object. 118 In the view of the Pruitt court at least, Steagald was distinguishable.“Steagald does not resolve the issue before us; namely whether officersmay rely on an arrest warrant, coupled with the reasonable belief that thesubject of the warrant is within a third-party’s residence, to enter thatresidence to execute the warrant.” 119 The court instead referred to Paytonv. New York, 120 an earlier Supreme Court case, as controlling precedent.There, the Supreme Court addressed the rights of a suspect in his ownhome and held that the police may enter to arrest him when they have avalid arrest warrant and reason to believe that he is inside, asserting that“an arrest warrant founded on probable cause implicitly carries with it thelimited authority to enter a dwelling in which the suspect lives when thereis reason to believe the suspect is within.” 121 In Payton, New York detectives assembled evidence sufficient toestablish probable cause to believe that Theodore Payton had murdered themanager of a gas station two days earlier, and six officers went to Payton’sapartment the next day to arrest him, without a warrant (at the time 115. Id. at 207. 116. Id. 117. Id. at 208-09. 118. Id. at 213-14 (citation omitted). 119. United States v. Pruitt, 458 F.3d 477, 481 (6th Cir. 2006). 120. 445 U.S. 573 (1980). 121. Id. at 603.
132 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 85:115warrantless entries were authorized by New York statute). 122 Hearingmusic and seeing lighting emanating from the apartment, but with noresponse to their knock on the door, the officers used crowbars to breakopen the door and enter the apartment. Although no one was inside, “inplain view, . . . was a .30 caliber shell casing that was seized and lateradmitted into evidence at Payton’s murder trial.” 123 As evident in Pruitt, the Court had previously held that police mayenter a suspect’s own home pursuant to an arrest warrant when there is“reason to believe” the suspect is inside. 124 The Supreme Court reasonedthat “[i]f there is sufficient evidence of a citizen’s participation in a felonyto persuade a judicial officer that his arrest is justified [then] it isconstitutionally reasonable to require him to open his doors” to the police.125 “Because an arrest warrant authorizes the police to [seize and] deprivea person of his liberty, it necessarily also authorizes a limited invasion ofthat person’s privacy interest when it is necessary to arrest him in hishome.” 126 Even when the two controlling Supreme Court cases are consideredtogether, they offer little guidance to lower courts. Curiously, under thePayton-Steagald platform, to go into a third-party home withoutpermission, courts have required a “reason to believe,” a term usedinterchangeably with “reasonable belief” and “reasonable grounds forbelieving.” Just what any of those terms really mean remains unclear.Nevertheless, the Pruitt court proceeded with its interpretation, and reliedon Payton, independent of Steagald. The Pruitt court was persuaded by thegovernment’s arguments that while a circuit-split exists on this issue, themajority of courts have ruled that a “lesser reasonable belief standard, andnot probable cause, is sufficient to allow [the police] to enter a residence toenforce an arrest warrant.” 127 With this in mind, the court then concludedthat the officers in the case had adequate information to meet thisreasonable belief standard based on common sense factors and the totalityof the circumstances. 128 In reaching its conclusion, the Sixth Circuit depended on the use of“reasonable belief” and “probable cause” as construed in Payton. The courtsurmised that under Payton, the Supreme Court intended differentstandards for the term “probable cause” and “reasonable belief” to describethe foundation for an arrest warrant, and that this is the rationale behindusing two different terms. 129 It professed that “[h]ad the Court intended 122. Id. at 576. 123. Id. at 576-77. 124. Payton, 445 U.S. at 603, quoted in Pruitt, 458 F.3d at 482. 125. Payton, 445 U.S. at 602-03. 126. Steagald v. United States, 451 U.S. 204, 214 n.7 (1981). 127. Pruitt, 458 F.3d at 482. 128. Id. at 485. 129. Id. at 484.
Winter 2008] RACE AND AMERICAN CRIMINAL JUSTICE 133probable cause to be the standard for entering a residence, it would haveexpressly stated so” and therefore two “different standards apply.” 130Accordingly, the court reasoned: (1) Reasonable belief is established “bylooking at common sense factors and evaluating the totality of thecircumstances;” (2) “[T]he [officers] considered . . . his drug dealing pastand his street name, to develop a reasonable belief that Pruitt was in theresidence;” (3) “Our decision is consistent with the majority of our sistercircuits who have ruled that consideration of common sense factors and thetotality of the circumstances is sufficient to formulate a reasonable beliefthat a suspect is on the premises;” (4) “Our holding contrasts with that ofthe Ninth Circuit, which alone has ruled that reasonable belief is theequivalent of probable cause in determining whether a suspect is within theresidence.” 131 But in a separate concurrence, echoing the Ninth Circuit inUnited States v. Gorman, 132 Judge Eric Clay believed that the “reason tobelieve” standard under Payton is the functional equivalent of “probablecause.” 133 He stated that the “[c]ourt must ask whether the officers’ beliefthat [the] Defendant was inside 2652 Meistser Road was an objectivelyreasonable belief given the circumstances known to the officers at thetime.” 134 Similarly troublesome issues have arisen in Fifth Amendmentjurisprudence. In Davis v. United States, 135 the Supreme Court consideredthe degree of clarity necessary for a custodial suspect to invoke theMiranda rights to counsel after a waiver. 136 Significantly, Davis appears toset forth a clear and concise rule of law. The decision purports to finallydecide the issue of how clearly a criminal suspect must assert his FifthAmendment right to counsel. 137 The Davis Court held that after a suspectknowingly and voluntarily waives his Miranda rights, law enforcementofficers may continue their questioning until and unless the suspect clearlyrequests an attorney. 138 The Court reasoned that although agents continuedto question Davis after he stated, “I think I want a lawyer before I sayanything else,” 139 the continued questioning did not violate the suspect’sFifth Amendment privilege against compulsory self-incrimination. 140 130. Id. 131. Id. 132. 314 F.3d 1105 (9th Cir. 2002). 133. Pruitt, 458 F.3d at 490 (Clay, J., concurring). 134. Id. at 490. 135. 512 U.S. 452 (1994). 136. Id. at 460-61. 137. Id. at 455. 138. Id. at 461-62. 139. Id. at 455. 140. See id. at 458.
134 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 85:115 At first glance, this rule seems contrary to Miranda v. Arizona. 141Under the Davis decision, if a suspect does not unambiguously requestcounsel, law enforcement officers may continue questioning him. 142 Underthe Court’s new mandate, a suspect must clearly articulate his desire tohave counsel present, such that “a reasonable police officer in thecircumstances would understand the statement to be a request for anattorney.” 143 Davis may be considered an advance for the interests of lawenforcement, and a setback for criminal suspects. From the beginning, critics of Davis have charged that it marks adeparture from the Fifth Amendment’s requirement that the governmentbear the entire burden of protecting an individual’s privilege against self-incrimination. The Court in Miranda held that “[i]f the individual desiresto exercise his privilege, he has the right to do so. This is not for theauthorities to decide.” 144 These criticisms cannot be easily dismissed. While the Court’s newlimitations on ambiguous post-waiver request for counsel may make goodsense as a matter of public policy, the Court has yet to provide a convincingexplanation for its doctrinally unsupported decision. The Court seemsdeeply uncertain about what the precise nature of the rule on ambiguousrequests for counsel should be. 145 The basic conceptual uncertaintytogether with a series of unexplained doctrinal quirks, has confused andconfounded the state officials and lower-court judges who labor with thedecision at the ground level. 146 Despite these difficulties, limitations placed on ambiguous requestsfor counsel under Davis seem destined to remain in place, at least for theforeseeable future. The Davis decision allows the lower courts, as aconstitutional as well as a practical matter, to ignore ambiguous requests.The different jurisdictions are now free to develop their own standard forclarity, thereby creating even more uncertainty than before the Davisdecision. 147 Also, lower courts are confronted with cases which require thesecond-guessing of police interrogators’ judgments that a request for 141. 384 U.S. 436 (1966). 142. Davis, 512 U.S. at 461-62. 143. Id. at 459. 144. Miranda, 384 U.S. at 480. 145. See In re State v. Collins, 937 So.2d 95 (Ala. 2006). 146. See David Aram Kaiser & Paul Lufkin, Deconstructing Davis v. United States:Intention and Meaning in Ambiguous Requests for Counsel, 32 HASTINGS CONST. L.Q. 737,767 (2005). The Davis standard, at best, offers no practical guidance in this area. At worst, by setting forth a standard of interpretation that allows meaning to be separated from the speaker’s intention, Davis distances interpretation from this essential determiner of meaning, encouraging both police and courts to engage in arbitrary acts of interpretation. Id. 147. See People v. Critenden, 885 P.2d 887 (Cal.1994); State v. Hoey, 881 P.2d 504(Haw. 1994).
Winter 2008] RACE AND AMERICAN CRIMINAL JUSTICE 135counsel was ambiguous enough to alleviate the need for clarification.Judges are then compelled to perform objective inquiries into the factssurrounding the interrogation. With these important issues in mind, and thecrucial question that Justice Souter poses in his concurring opinion (“‘howclear is clear?’” 148 ), it is time to attempt to understand the Davis rule on itsown terms. Under Davis, an ambiguous invocation of an individual’s right to anattorney after an initial valid waiver is ineffective (e.g., the sequence iswarning, waiver, questioning, and then an ambiguous statement). 149 Thequestion remains after Davis: does the Davis rationale apply to an initialambiguous response (e.g., sequence is a warning, followed by anambiguous statement)? I argue that it does not. That is, the Davis rationaleis limited to the post-waiver ambiguity, not an ambiguous request forcounsel in the context of the initial advisement of rights. Furthermore, ifDavis does not apply to the initial warning, then police officers would nothave to employ a clarification approach. Such an interpretation wouldserve as a slight relief to defense attorneys in the trenches and appellatecourts struggling with this question. In suggesting that Davis does not apply to pre-waiver ambiguity, I donot mean to applaud the decision itself. In fact, I believe that the Davisdecision is inherently inconsistent. In fact, the inherently inconsistentanalysis of Miranda is troubling because it enables the Court to maneuverin two directions at once. Alternatively, I argue that Miranda remains theimportant source of the standard known as “Miranda rights,” whichpositively mark the constitutional limits of custodial interrogations by lawenforcement. 150 The case also remains at the forefront of the debate abouta defendant’s constitutional rights and crime control. 151 For criminaldefendants, Miranda still stands as a shield against coercive policequestioning involving subtle, and sometimes not so subtle sophisticatedploys, and trickery based on manipulation, persuasion, and deception. 152Therefore, in situations where a suspect makes an ambiguous responseprior to a waiver of his Miranda rights, the Davis rule is not triggered. 148. Davis v. United States, 512 U.S. 452, 474 n.7 (1994) (Souter, J., concurring). 149. Id. at 461(majority opinion). 150. See Michael Edmund O’Neill, Undoing Miranda, 2000 BYU L. REV. 185, 232(2000) (relaying that “[b]efore Miranda, no general right to assistance of counsel existedduring police interrogation.”); cf. Bruce G. Peabody, Nonjudicial ConstitutionalInterpretation, Authoritative Settlement, and a New Agenda for Research, 16 CONST.COMMENT. 63, 64 (1999) (explaining that politicians and commentators have debated forcenturies about who has the authority to interpret the Constitution, but the debate hasbecome even more intense in recent years). 151. See generally THE MIRANDA DEBATE: LAW, JUSTICE, AND POLICING (Richard A.Leo & George C. Thomas III eds., 1998). 152. Id.
136 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 85:115 To sum up, unless Fourth and Fifth Amendment jurisprudenceembarks in a new direction, it is likely that the individual rights of theaccused will continue to be weakened. CONCLUSION All of the examples offered in this article offer strong support for theproposition that criminal justice cannot be equally divided between goodguys and bad guys or between justice and injustice. Rather, criminaljustice and racial justice are complex subjects each deserving of deeperconsideration. A closer and more meaningful examination of thecontinually evolving criminal justice system would uncover the realreasons for crime, which would assist policymakers in developingpragmatic measures to address the present day realities of crime andpunishment.