Akers, Ronald L.

Allen, Francis A.

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Commentary on Baldwin

University of Florida Levin College of Law

Florida Law Review Volume 39 Issue 2 Article 17 March 1987 Commentary on Baldwin Francis A. Allen Ronald L. Akers Follow this and additional works at: https://scholarship.law.ufl.edu/flr  Part of the Law Commons Recommended Citation Francis A. Allen and Ronald L. Akers, Commentary on Baldwin, 39 Fla. L. Rev. 545 (1987). Available at: https://scholarship.law.ufl.edu/flr/vol39/iss2/17 This Article is brought to you for free and open access by UF Law Scholarship Repository. It has been accepted for inclusion in Florida Law Review by an authorized editor of UF Law Scholarship Repository. For more information, please contact kaleita@law.ufl.edu. COMMENTARY ON BALDWINFrancis A. Allen*Commentaries on conference papers have acquired no stable artform. Rather, such comments appear to take an almost infinite varietyof forms, ranging from a detailed and conscientious scrutiny of thearguments advanced in the principal paper, at one extreme, to obser-vations, at the other, the relevance of which are mysterious to theaudience and obscure to the commentator himself. I intend that myremarks should fall somewhere between these polar extremes, butsome may be disposed to locate them closer to the latter pole thanthe former. The burden of my comments will be to inquire about thecondition of and prospects for criminal justice scholarship in the lawschools, given the conditions discussed and alluded to by ProfessorBaldwin in his paper.In an early part of his discussion, Professor Baldwin notes theextraordinary volume of published commentary on fourth amendmentproblems. Although I have not done the counting, my impression isthat the exclusionary rule in search and seizure cases has been, forthe last two decades, one of the most frequently discussed issues inAmerican law reviews.1 At their best, these discussions constitute animpressive literature - ingenious, comprehensive, properly concernedabout official constrictions of personal privacy brought on by effortsto enforce penal proscriptions against consumption and by the elec-tronic revolution of our time.2 The sheer volume of this literature,however, and the demonstrated readiness of many academics to subjectevery microscopic increment of judicial doctrine to exhaustive commen-tary, may cause some to wonder whether anything remains worthsaying about the subject. To be sure, a market for the literatureexists, as demonstrated by the outpouring of lawyers to continuinglegal education seminars where these and related questions are dis-cussed. Whether the volume of the literature and the concomitant*Huber C. Hurst Eminent Scholar and Professor of Law, University of Florida College ofLaw. A.B., 1941, Cornell College; LL.B., 1946, Northwestern; J.D. (Hon.), 1958, Cornell College;LL.D., 1980, Victoria.1. For a discussion of the popularity of constitutional criminal procedure issues for lawreview exegesis, see Allen, Introduction: American Criminal Procedure: Why the Dominanceof Judge-Made Lazo? in POLICE PRACTICES AND THE LAW 3-4 (1982).2. See, e.g., Kanisar, Does (Did) (Sluld) the Exclusionar'y Rule Rest on a "PrincipledBasis" Rather than an "Empirical Proposition"?, 16 CREIGHTON L. REV. 565 (1983).1Allen and Akers: Commentary on BaldwinPublished by UF Law Scholarship Repository, 1987UNIVERSITY OF FLORIDA LAW REVIEWneglect of other pressing issues of criminal justice by many law schoolacademics comports with the highest standards of university scholar-ship, is another issue that deserves serious consideration.The literature to which I refer is not only voluminous, but in recentyears has taken on a distinctive tone. A note of wistfulness, if notpetulance, is conveyed even in the titles of some of the publishedarticles and notes. Thus, in recent years one finds titles in the lawreviews such as "Frisking the Fourth Amendment, '3 "The IncredibleShrinking Fourth Amendment," 4 and "The New Law of Search andSeizure: Castles Built With Air?"5 This scholarship gives one the im-pression that a substantial cadre of American law professors hopefullyawaits the second coming of the Warren Court. The absence of favor-able eschatological indications seems not as yet to have dimmed theseexpectations. To alter the figure somewhat, many of the fourth amend-ment scholars appear to have defined their role as similar to that ofmonks preserving evidences of the true faith in their cloisters untilthe dark ages have passed.These are uncharitable remarks, and to mitigate my wrong, letme say that the distress conveyed by the literature is comprehensibleand, in my opinion, justified. It is a product of the dominant intellectualmode employed by the Supreme Court and delineated by ProfessorBaldwin. This approach eschews principle and concern for the integrityof the criminal justice process and, instead, employs a shallow andmean-spirited pragmatism, intent on securing small law enforcementadvantages in individual cases.6 The attitudes of the Supreme Courtcan be identified in even more blatant and less decorous forms in theopinions of state court judges.7 What needs to be noted, however, is3. Spillane, Frisking the Fourth Amendment, 10 HuM. RTS. 23 (1982).4. Wasserstrom, The Incredible Shrinking Fourth Amendment, 21 AM. CR. L. REV. 257(1984).5. Bevan & Lidstone, The New Law of Search and Seizure: Castles Built With Air?, 1985PUB. L. 423.6. Cf. Allen, The Judicial Quest for Penal Justice: The Warren Court and the CriminalCases, 1975 U. ILL. L.F. 518, 537:[U]ntil the [exclusionary] rule rests on a principled basis rather than on an empiricalproposition, the Mapp precedent, provided the Court does not overrule or substan-tially modify it, will remain in a state of unstable equilibrium. The Warren Courtfailed in its closing years to provide a principled underpinning for the rule.Id.7. Allen, A Serendipitous Trek Through the Advance-Sheet Jungle: Criminal Justice inthe Courts of Review, 70 IowA L. REV. 311 (1985).[Vol. 392Florida Law Review, Vol. 39, Iss. 2 [1987], Art. 17https://scholarship.law.ufl.edu/flr/vol39/iss2/17COMMENTARY ON BALDWINthat the judicial attitudes, both state and federal, mirror and replicatethe dominant mood of the community. This fact is significant in definingthe contemporary problems of advancing human values in criminaljustice administration and also in considering the strategies of scholar-ship directed to the same end.The impact of the current widespread fear of and outrage overcrime on the decency of American criminal justice has yet to be fullydescribed or appreciated. Whatever its exact nature, the impact isgreat. These fears are surely implicated in the remarkable change ofAmerican attitudes toward the death penalty over the last two decadesand the reversal of popular views toward penal rehabilitationism overan even shorter period., Only recently have we begun to understandhow inextricably these fears are bound up in our most basic socialattitudes.Sociological findings suggest no necessary correlation betweencrime victimization and the fear of crime.9 Strong fears flourish amongpersons who have never been and are not likely in the future to betargets of serious criminal aggressions. For such persons, who areboth numerous and influential, crime is feared more as an evidenceof a general collapse of mechanisms of social control than as an im-mediate threat to personal security. The prevalence of serious crimeis resented because it appears to challenge the capacity of the commu-nity to achieve the values that induce persons to come together insocieties. Popular attitudes toward campus disorders in the Vietnamperiod, for example, can be fully understood only when this elementis taken into account.Moreover, current attitudes that elevate the achievement of lawenforcement and devalue the claims of due process of law seem rootedin dissatisfactions broader than merely those associated with criminaljustice administration. American society, confronted by disappoint-ment, frustrations, and unrealized expectations, has been led to in-creasing reliance on the launching of deadly force as a favored meansof achieving its goals and overcoming dissatisfaction. This reliancereveals itself clearly in the conduct of our foreign policy as well as inour internal policy.One need not resort to simplistic shibboleths about the relationsof current events and popular attitudes toward judicial performance8. Id. at 318-22.9. E.g., D. LEwis & G. SALEM, FEAR OF CRIME: INCIVILITY AND THE PRODUCTIONOF A SOCIAL PROBLEM passim (1986).3Allen and Akers: Commentary on BaldwinPublished by UF Law Scholarship Repository, 1987UNIVERSITY OF FLORIDA LAW REVIEWto recognize that the present is not a time in which much forwardprogress in the development of due process doctrine by courts incriminal cases can be anticipated. If ever a time existed when a criminallaw professor could be reasonably confident that by publishing critiquesof the latest Supreme Court opinions he was substantially contributingto the advancement of human values in criminal justice administration,that time is not now.If, then, the parsing of due process theory can no longer serve asa sufficient or realistic objective for criminal justice scholarship, towardwhat conditions and goals should the new scholarship turn? No onewould wish to dictate the choices that others must make about suchmatters. Yet, perhaps, one can begin by saying that if social andinstitutional pathology in areas vital to human well-being constituteattractive targets for scholarly inquiry, then the administration ofAmerican criminal justice richly qualifies. We are confronted by prisonsystems that, in some localities, regularly produce horrors as shockingas anything given birth by the Gulag Archipelago. Even when condi-tions are somewhat less egregious, American correctional systems -overcrowded, financially starved, out of sight and out of mind - failto achieve adequately any of their assigned objectives. In the greatmajority of instances, our system of courts no longer adjudicates guiltbut rather processes cases. Furthermore, the processing is often un-guided by anything remotely approaching the rule of law. We adminis-ter a program of capital punishment, one of the latent functions ofwhich appears to be to remove from our sight and concern a populationof violently insane or near-insane persons. The litany need not beenlarged. Generally, the system regularly fails in its preventive andincapacitative functions; is most imperfectly constrained by the princi-ples of legality; and often denies human values of which the due processconcept represents one expression.The contributions legal scholars can make to the mitigation of theseproblems may prove peripheral. But a new emphasis could well pro-duce lively and even useful results. Would it not be interesting, forexample, if a number of bright young law teachers concentrated seri-ously for a time on how to make American law enforcement moreefficient? By "efficient" I mean more effective in apprehending andconvicting persons who should be subjected to criminal restraints andsanctions. To the old-line liberal the suggestion will likely seem fantas-tic and in bad taste. I recall a view expressed in the Vietnam era bya number of criminologists that research funding for studies of policeoperations should be rejected on grounds of conscience. To them, thepolice were the adversaries of right-thinking persons and to advance[Vol. 394Florida Law Review, Vol. 39, Iss. 2 [1987], Art. 17https://scholarship.law.ufl.edu/flr/vol39/iss2/17COMMENTARY ON BALDWINtheir efficiency through research was to strengthen the forces of reac-tion.1oYet, it must now be clear that liberal aspirations are among thefirst to wither in a society that believes the security and physicalintegrity of its members are at risk because of crime. The typicalliberal insouciance about law enforcement is not shared by the publicand it is not surprising that the public has turned to candidates atthe other extreme of the political spectrum who take the crime problemseriously or who say they do. It would be difficult to point to a morede-liberalizing influence on American public life than the widespreadperception of rampant criminality. Exploitation of the crime issue bythe prevailing candidate in the presidential election of 1968 may wellhave determined its outcome. Those not involved in more productiveactivity may find it beguiling to speculate on what the consequencesfor American society could have been had the election gone the otherway, which it very nearly did.This is not the appropriate forum for proposing an agenda forcriminal justice research, but perhaps a few additional areas for inquirycan be suggested. The problems of prison overcrowding are ubiquitous.Can non-custodial programs for even serious offenders be devised thatadequately insure the public safety and, at the same time, employsurveillance techniques consistent with the essential humanity of con-victed persons? Again, are some appellate court judges, influenced bythe strong law-enforcement sentiments of the community, improperlysustaining criminal convictions through the abusive use of "harmlesserror" doctrines? One investigator has suggested that the standardsfor affirmance in civil cases may have become stricter than thoseapplied in criminal cases involving issues of human life and liberty."Again, the effort to introduce a semblance of the rule of law into theprocesses of criminal sentencing is approaching a crisis both at federaland state levels. ' Some law professors are contributing to these cur-rent deliberations. Perhaps more should be.10. Comments on such attitudes may be found in Bayley, The Police and Political Changein Comparative Perspective, 6 LAw & Soc. REV. 91 (1971); Gardiner, Research Models in LawEnforcement, 6 LAw & Soc. REv. 223, 229; Sykes, The Future of Criminality, 15 ALI. BEHAV.Sci. 417 (1972).11. Davies, Affirmed: A Study of Criminal Appeals and Decision-Making Norms in aCalifornia Court of Appeal, 1982 Ai. B. FOUND. RES. J. 543, 631.12. Note the criticism directed to the preliminary draft of sentencing guidelines issued bythe United States Sentencing Commission. Sentencing Commission's First Effort Receives Out-pouring of Criticism, 40 Crim. L. Rep. (BNA) No. 12, at 2223 (Dec. 17, 1986).5Allen and Akers: Commentary on BaldwinPublished by UF Law Scholarship Repository, 1987UNIVERSITY OF FLORIDA LAW REVIEWWe have no serious problem in stating our objective. What weseek, in the words of the late Max Radin, is a juster justice and amore lawful law. 13 Our problem is one of strategy. The course I havesuggested would remove Supreme Court case analysis from the centralfocus of criminal justice research and elevate more firmly into themainstream, issues centered in the legislative and administrative pro-cesses. This proposal entails acquiring a greater command of tech-niques of social inquiry, which the law schools have been talking aboutsince the end of the First World War, and a greater tolerance ofinterdisciplinary effort. All of these things and more are now goingforward at varying levels of intensity in the law schools. But moreneeds to be done and more members of law faculties need to be doingthem. Even if these familiar prescriptions were accepted, no one canwarrant that the resulting impact on the pathologies of criminal justicewould be anything but small. But in these times, the possibility ofeven small steps toward a fuller realization of the values to which thisConference is dedicated is one to be sought and cherished.13. Radin, A Juster Justice, a More Lawful Law, in ESSAYS IN HONOR OF O.K. MCMUR-RAY 537-64 (1927).[Vol. 396Florida Law Review, Vol. 39, Iss. 2 [1987], Art. 17https://scholarship.law.ufl.edu/flr/vol39/iss2/17

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