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A Reply to Louis Michael Seidman\u27s Respons

Reply: Criminal Law\u27s Pathology

I thank Kyron Huigens for devoting his time and his considerable talent to responding to my article, The Pathological Politics of Criminal Law. I also thank editors of the Michigan Law Review for giving me the opportunity to reply. It is best to begin by defining the contested territory. Huigens and I agree (I think) on three propositions. First, American criminal law, both federal and state, is very broad; it covers a great deal more conduct than most people would expect. Second, American criminal law is very deep: that which it criminalizes, it criminalizes repeatedly, so that a single incident can yield a dozen or more separate charges. Third, because criminal law has these features, a great many defendants plead guilty who might win at trial given more reasonable criminal liability rules, and a smaller but still significant number of defendants lose the opportunity to raise substantive legal claims they could have raised if those more reasonable rules applied. These effects give prosecutors an enormous amount of power. All this is common ground. We disagree about two important things. Huigens believes that the nature of criminal law and criminal lawmaking may not be a large problem - overcriminalization may be no more than a benign response to the public\u27s desire to use criminal law to make symbolic statements. And he believes that if there is a problem, it lies in the triumph of consequentialism as the reigning theory of criminal punishment. Both points are, like all Huigens\u27 work, very interesting; I enjoyed and profited from his essay. And the argument about consequentialism has substantial force. But I think neither point is correct

\u3cem\u3eMiranda\u3c/em\u3e\u27s Mistake

The oddest thing about Miranda is its politics - a point reinforced by the decision in, and the reaction to, Dickerson v. United States. In Dickerson, the Supreme Court faced the question whether Miranda ought to be overturned, either directly or by permitting legislative overrides. The lawyers, the literature, and the Court split along right-left - or, in the Court\u27s case, right-center - lines, with the right seeking to do away with Miranda\u27s restrictions on police questioning, and the left (or center) seeking to maintain them. The split is familiar. Reactions to Miranda have always divided along ideological lines, with the right arguing that it handcuffs the police, and the left arguing that it offers needed protection to otherwise helpless suspects. For the past generation, Miranda, the exclusionary rule, and the death penalty have formed the criminal justice system\u27s trilogy of ideological markers, issues that separated the true believers of one side from the true believers of the other. To be sure, the left\u27s embrace of Miranda has always been half-hearted, tinged with disappointment that Earl Warren\u27s opinion did not go farther and ban uncounseled questioning altogether. But whenever Miranda has been seriously challenged, those who believe in protecting criminal suspects\u27 interests have rallied to its defense, on the Court and in the law reviews. The success of that defense in Dickerson - written by the Chief Justice, no less - seems to show that, in this area at least, the left has won the day, leaving the right carping from the sidelines

Privacy\u27s Problem and the Law of Criminal Procedure

Part I of this article addresses the connection between privacy-based limits on police authority and substantive limits on government power as a general matter. Part II briefly addresses the effects of that connection on Fourth and Fifth Amendment law, both past and present. Part ID suggests that privacy protection has a deeper problem: it tends to obscure more serious harms that attend police misconduct, harms that flow not from information disclosure but from the police use of force. The upshot is that criminal procedure would be better off with less attention to privacy, at least as privacy is defined in the doctrine today. Were the law of criminal procedure to focus more on force and coercion and less on information gathering (a change that is already beginning to happen), it would square better with other constitutional law and better protect the interests most people value most highly