ARTICLES

Race and the American Criminal Justice System: Three Arguments About Criminal Law, Social Science, and Criminal Procedure HARVEY GEE

∗

INTRODUCTION The last two years have witnessed a two-year rise in the rate of violent

crime in large United States metropolitan cities.1 Simultaneously, the rate of incarceration in the United States is continuing to rise at unprecedented rates. The Sentencing Project notes that “the number of people in prisons and jails increase[ed] from 330,000 in 1972 to 2.1 million today.”2 This dramatic observation is produced by many factors, among them: changing crime rates, strict sentencing, politics, culture, and demographics.3 There has been no consensus on these new realities; however, sentencing laws and increased incarceration is often referred to as the solution to address increasing crime rates. A reliance on this approach will exclusively impose a heavy burden on courts and communities, while having only a marginal impact 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 Washington University Law School, J.D., St. Mary’s University School of Law; B.A. Sonoma State University. 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, imprisonment has always posed a set of burdens on the family members of people in prison. These have included financial strains, psychological burdens, and social stigma. All of these dynamics still exist, but mass imprisonment has created a considerably greater level of effects in many neighborhoods.”); Marc Mauer, Why Are Tough on Crime Policies So Popular?, 11 STAN.

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also exacerbated by unequal treatment in sentencing. The American Bar Association (“ABA”) has called for the elimination of such disparities in sentencing for cocaine offenses: “We continue to believe that Congress should amend federal statutes to eliminate the mandatory differential between crack and powder cocaine and that the Commission should promulgate guidelines that treat both types of cocaine similarly.”5 Professors Franklin Zimring and Sam Kamin conducted a study on the impact of California’s Three Strikes and You’re Out Legislation on crime and punishment, concluding that reduction in the crime rate as a result of imposing three strikes was minimal.6 In fact, according to their study of three cities: San Francisco, Los Angeles, and San Diego, the Three Strikes law 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 criminals to be locked up under toughened sentences are at odds with their opposition to spending more money to build more prisons.9 The nonpartisan Public Policy Institute of California presented survey findings that showed just thirty-four percent of the public supported more prison funding while nearly two-thirds opposed it.10 Similarly, the Texas prison officials are overwhelmed with a staggering prison population, which is draining the state’s prison budget. In response, Texas politicians are considering alternatives to incarceration, including early parole, as well as drug and

L. & POL’Y REV. 9, 13 (1999) (“The relative ineffectiveness of more and longer prison sentences in reducing crime is well known among criminologists and practitioners in the field of a criminal justice.”). 5. Eliminating Disparities in Sentencing for Cocaine Offenses, Before the U.S. Sentencing Commission, Nov. 14, 2006, at 2, available at http://www.ussc.gov/hearings/11_15_06/Saltzburg-ABAtestimony.pdf (statement of Stephen 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 AFTER MORE THAN A DECADE 15 (Oct. 2005), available at http://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, available at 2007 WLNR 3229458. Colorado is also grappling with the problem of prison overcrowding and recidivism. See Ann Imse, Revolving Door to State Prisons, ROCKY MOUNTAIN NEWS, Feb. 16, 2007, at 34, available at 2007 WLNR 3060813. 10. Lesher, supra note 9.

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alcohol treatment.11 On the national level, the federal prison population is also swelling; and Congress will eventually have to address the prison dilemma as well.12 “[T]he federal prison population grew from 133,921 in 1999 to 191,988 in September” of 2006.13 The Justice Department’s Bureau of Prisons, in trying to accommodate overcrowding and understaffing, has been operating at 130 percent or more of capacity.14 These sobering facts support the growing concern that the federal and state governments may have to focus on effective alternatives.

The ABA recognizes the seriousness of issues facing the American justice system, and has concluded that America’s criminal justice systems are too heavily relying on incarceration, and more effective alternatives are necessary.15 To this end, the ABA Justice Kennedy Commission has made recommendations to address “sentencing and incarceration issues, racial and ethnic disparities in criminal justice systems, prison conditions and prisoner reentry issues, and pardons and clemency processes.”16 The Commission recommends programs that help inmates transition back into communities and “provide[s] alternatives to incarceration for offenders who would benefit from substance abuse and mental illness programs.”17 Professor Stephen Saltzburg, chair of the Commission, remarked, “[t]hese recommendations are intended to make our criminal justice systems more effective and to utilize our limited resources more efficiently[.]”18 Likewise, criminologist Elliot Currie suggests that the justice system should emphasize crime prevention, and sincere efforts should be made to integrate offenders into society instead of locking people behind bars.19

Against this backdrop, this article makes some casual observations about crime, policing, sentencing, and criminal justice. Aside from the occasional consideration of race and criminal justice in conjunction with one another, the American justice system is typically considered in its ordinary terms: punishment for offenders, regardless of the race or class of inmates. A closer look would reveal that African Americans are more likely victimized by crime than are other groups, and African Americans exhibit higher rates of serious offending and/or lengthier criminal histories than other groups. This is reflected in the composition of the prison

11. See Seth Stern, Lean Times Spur Hard Look at Prison Population Boom, CQ WEEKLY, 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 Kennedy Commission). 19. See ELLIOT CURRIE, CRIME AND PUNISHMENT IN AMERICA 2 (1998).

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population.20 “For property offenses, African Americans constituted 32 [percent] of arrests in 1996, disproportionate to their 13 [percent] share of the 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” has been the most significant factor contributing to the rise of prison and jail populations.23 Drug policies have also had a disproportionate impact on African Americans and have exacerbated the racial disparities that already existed within the criminal justice system. This has come about in two ways: first, there has been an overall increase of drug offenders in the criminal justice population; and second, many of these drug offenders are African Americans.24 These statistics demonstrate the need for the reforms such as the development of drug courts that divert addicts from prison and supervise their recovery.

This article makes three interrelated arguments about the real-world application of criminal law and procedure: (1) criminal sentencing laws such as California’s Three Strikes Law and California’s Penal Code section 148.6, which criminalizes the filing of false complaints against police officers, are shortsighted, have fallen short of their intended results, and their enforcement have had a disproportionate effect on minority communities; (2) the issue of cross-racial eyewitness identification in the context of rules of evidence in the courtroom has demonstrated that social science has been useful in understanding the influence of race in criminal trials; and (3) existing criminal procedure jurisprudence has proven to create burdens on criminal defendants. These arguments reinforce the interplay between race, crime, and justice, and implicitly make the assertion that the role of discretion in the criminal justice system and manner in which these discretionary actions, when aggregated together, can lead to racial unfairness. Professor David Cole argues that race plays an improper role in the administration of criminal justice and that if nothing significant is done, the probability of racial inequalities will exacerbate the crime problem.25 This idea needs to be explored in greater detail than the current literature on criminal punishment and race jurisprudence has provided thus far.

20. See MARC MAUER, THE CRISIS OF THE YOUNG AFRICAN AMERICAN MALE AND THE CRIMINAL 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 the falling crime rate). 24. Id. at 10, 11, 15, 16. 25. See DAVID COLE, NO EQUAL JUSTICE: RACE AND CLASS IN THE AMERICAN CRIMINAL JUSTICE SYSTEM 1 (1999).

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I. DISPROPORTIONATE EFFECT ON MINORITY COMMUNITIES Two California laws, the Three Strikes Law and Penal Code section

148.6, as well as similar laws across the nation, have had a detrimental effect on minority communities. Their costs have outweighed their effectiveness. First, California’s Three Strikes Law (“Three Strikes”) was passed by the California Legislature, and later by voters. The law makes life sentences mandatory for third strikes, with no parole possible for 25 years. The chief reason for its broad sweep is a unique rule, counting any felony as a third strike.

In a collaborative work, Professor Franklin Zimring, Gordon Hawkins and Sam Kamin, argue that Three Strikes is not working. In their book entitled, Punishment and Democracy,26 the authors reveal that California’s Three Strikes is a poorly drafted law that causes functional and constitutional problems, such as disproportionate and, sometimes, extreme sentences.27 It was quite possible that California voters did not realize the severity of the typical sentences that would be imposed under the Three Strikes law. According to the authors, “[w]hereas most penal laws are designed to deliver less drastic changes than they advertise—to bark louder than they bite—the California statute was designed to operate even more broadly than its specialized title would suggest. [Three Strikes] was a law designed to bite louder than it barked.”28

Due to Three Strikes being seemingly at odds with the language of the Eighth Amendment, the application of the law has resulted in considerable debate over the constitutionality and propriety of such laws. Supporters of Three Strikes reason that such laws are necessary to keep serious criminals behind bars.29 Additionally, former California Governor Gray Davis says, “people who are guilty of three strikes are generally guilty of many more crimes, and it has led to a great increase in public safety over the past decade.”30 On the other hand, critics of Three Strikes argue that the law sweeps beyond its ambit, by subjecting even offenders who have committed non-serious felonies, to harsh and lengthy sentences.31 Accordingly, Professor Stephen Saltzburg suggests that,

26. See FRANKLIN E. ZIMRING, ET AL., PUNISHMENT AND DEMOCRACY: THREE STRIKES AND 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 So Popular?, 11 STAN. L. & POL’Y REV. 9 (1999) (arguing that Three Strikes was not the primary reason for the falling crime rate). 30. David Kravets, Supreme Court Upholds Long Sentences Under Three-Strikes Laws for Repeat Criminals, Mar. 6, 2003, available at http://www.cjcj.org/press/three_strikes.html. 31. Id.

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[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. Andrade33 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 that followed California’s lead by imposing harsh prison terms for repeat offenders.35 In both cases, Justice Sandra Day O’Connor, writing for the majority of the Court, ruled to uphold California’s Three Strikes law. The Court held that the California Legislature had the “broad discretion to fashion a sentence that fits within the scope of the proportionality principle”36 and that the gross disproportionality principle was not violated when Andrade was sentenced to two consecutive terms of 25 years to life in prison.37 In Ewing, after attempting to more clearly define the existence and contours of any proportionality requirement contained in the Eighth Amendment, the Court then applied the principle to the facts of the case.38 Like prior Eighth Amendment cases before it, the opinion is not a “model of clarity,” and it is still not entirely clear whether the Eighth Amendment contains a proportionality requirement, and if so how to apply it.39 Nevertheless, the constitutionality of the Three Strikes law is seemingly no longer in doubt.

For all practical purposes, the rulings will make it “extremely difficult to 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 at http://www.ussc.gov/hearings/11_15_06/Saltzburg-ABAtestimony.pdf (statement of Stephen 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 DIEGO UNION-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 Acted Appropriately 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 Eighth Amendment does not contain a proportionality requirement). 40. National Public Radio: All Things Considered (National Public Radio, Mar. 5, 2003), available at 2003 WL 16702623.

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usual.”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.42 Even before trial, some Los Angeles prosecutors have “halted prosecution of most nonviolent third-strikers” in cases where presiding judges would strictly adhere to following recent judicial precedent.43

Federal Judge Nancy Gertner refused to apply a three strikes recidivist sentencing law to an African American defendant in Massachusetts, who had been convicted of his third offense.44 Because his prior convictions had been automobile-related and minor drug charges (not reflecting a history of violence), and taking judicial notice of how African American motorists are frequently subjected to police profiling and suspicions, so that those prior convictions could easily have been the product of racism, Judge Gertner refused to apply the three strikes law.45 Judge Gertner concluded that the defendant’s record overstated his culpability and the likelihood of his recidivism, and therefore sentenced him, instead to the shorter sentence of a non-recidivist first or second offender. 46

The vast majority of police minority interactions are routine instances of police abuse that often go unnoticed. Often, young African American males have been targeted by law enforcement under the guise of investigative profiling.47 Undoubtedly, police brutality has shaped the history of African Americans and the criminal justice system.48

A few years ago, in Chaker v. Crogan,49 the issue of police misconduct was addressed when the U.S. Court of Appeals for the Ninth Circuit overturned a 2002 California Supreme Court decision,50 which held that California Penal Code section 148.6 does not violate free speech rights embodied in the First Amendment and that statutory provisions governing offenses of knowingly filing a false charge of police misconduct are not

41. Matt Krupnick, Supreme Court Upholds Three-Strikes Punishment, CONTRA COSTA 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 CANNOT WORK (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 THE CRIMINAL 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).

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facially overbroad.51 The origins of section 148.6 of the California Penal Code can be traced to the Rodney King riot in March 1991, after which law enforcement agencies throughout the state revised their citizen complaint procedures to promote greater accountability on the part of their “line officers.” In 1995, the California legislature ratified California Penal Code section 148.6, making it a crime to knowingly file a false citizen complaint.52 Section 148.6 created an exception to the rule protecting citizen complainants from criminal defamation prosecutions. Through the enactment, California law treated one subcategory of citizen complaints against public officials—complaints against peace officers—differently from all others.

Two related themes run through the Chaker decision: (1) avenues for citizens 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 on citizens who want to file complaints against the police. Citizens may become the targets of police abuse and misconduct.53 In situations where arrestees believe they may have been mistreated by a peace officer, the opportunity to file a police complaint allows the arrestees to voice their grievances or concerns about what could be misconduct by an officer. However, difficulties remain in implementing laws against filing false complaints against law enforcement officials. For example, who determines whether a police officer is acting improperly under established police department policy, or is merely being rude or inconsiderate but lawful? Would an arrestee be able to determine whether handcuffs are on too tight? If the arrestee is grabbed, pushed, or kicked, how could he seek an inquiry into whether the physical contact was appropriate given the circumstances of the arrest?

Next, in an effort to strike a balance between the interests of protecting individuals from improper police methods and promoting effective law enforcement, independently-operated review boards are one possibility. For example, Denver has established an Office of the Independent Monitor which conducts independent investigations of uniformed personnel including Denver’s Police, Sheriff, and Fire Departments, and makes recommendations about administrative and

51. Id. See also Bob Egelko, Court Backs Cops on Complaint Law; Falsely Accusing Officers of a Crime, S.F. CHRON., Dec. 6, 2002, at A26 (“To the delight of police groups and the dismay of civil libertarians, the state Supreme Court . . . upheld a California law that makes 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 any allegation of misconduct against any peace officer . . . knowing the allegation to be false, is guilty 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, at A1.

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disciplinary actions. The Citizen Oversight Board oversees the Office of the Independent Monitor, and is responsible for: “(1) assessing whether the Office 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) addressing other issues of concern to the community and other interested stakeholders.”54 Notably, the Office of the Independent Monitor has an important role given Denver’s recent refocus on combating gangs after the slaying of Denver Broncos cornerback Darrent Williams in an early New Year’s Day drive-by shooting.55 Like in other cities, gangs have continued to represent a pressing issue for Denver.56 It is a problem that has compelled Denver District Attorney to call for the revitalization of the Metro Denver Gang Coalition, a task force to combat gangs and gang violence.57

Likewise, in San Francisco, voters added police oversight reform and accountability measures to the City Charter by passing an amendment thereto.58 The amendment restructures the San Francisco Police Commission 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 at http://www.denvergov.org/Portals/374/documents/City's%20Oversight%20System.pdf. 55. See Christopher N. Osher & Felissa Cardona, $460,000 Sought by DA to Battle Denver’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, ROCKY MOUNTAIN 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.’” All Are in to Go All Out vs. Gangs, DEN. POST, Mar. 8, 2007, at A1; Felisa Cardona, Safety in Crime Numbers Denver Reports 10 Percent Decline, DEN. POST, Feb.14, 2007, at B1. An interesting 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.2d 596 (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 influence on communities’ efforts to control gangs and shape public order); Matthew Mickle Werdegar, Enjoining the Constitution: The Use of Public Nuisance Abatement Injunctions Against Urban Street Gangs, 51 STAN. L. REV. 409 (1999); Edson McCellan, Note, People ex 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 Should Adopt A Comprehensive Anti-Gang Statute, 66 FORDHAM L. REV. 2033 (1998). 58. Demian Bulwa, Police Union Taps Harris in D.A. Runoff; Ammiano Backs Incumbent Hallinan, S.F. CHRON., Nov. 27, 2003, at A21; Press Release, ACLU of Northern Cal., S.F. Bd. of Supervisors Approves to Charter Amendment to Strengthen Police Accountability (July 16, 2003), available at http://www.aclunc.org/news/press_releases/san_francisco_board_of_supervisors_approves_to_charter_amendment_to_strengthen_police_accountability.shtml.

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Citizen Complaints.59 The amendment is consistent with the goal of having a properly administered complaint review system serving both the interests of the police and the interests of the community.60

In sum, through such review boards and oversight measures, the interests of the state in reviewing credible allegations of police misconduct may be better served, as these neutral civilian review boards mitigate the risk of placing a person in the precarious position of having to think twice before lodging any formal allegation of misconduct with the police department.

II. SOCIAL SCIENCE AND THE RULES OF EVIDENCE IN COURT: CROSS-RACIAL EYEWITNESS TESTIMONY

Social science has informed conventional understandings of the influence of race in law.61 There has been a growing body of social science research that reveals the important role in which race plays in assessing the reliability of witness identification when the witness and the person identified are of the same or of different races.62

59. S.F. Bd. of Supervisors Approves to Charter Amendment to Strengthen Police Accountability, supra note 58; see e.g., S.F., Cal. Consolidated Municipal Election, Proposition H: Police Commission/Office of Citizen Complaints (Nov. 4, 2003), available at http://sfpl4.sfpl.org/pdffiles/November4_2003.pdf. The Office of Citizen Complaints (“OCC”) “operates under the purview of the city Police Commission. Commission members 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 The Agency That Reviews Citizen Complaints Against Officers, SACRAMENTO BEE, July 13, 2002, at A3 (“The city charter requires the Police Department to provide ‘full and prompt cooperation’ with the OCC, which also enjoys investigatory powers, though it cannot issue subpoenas.”). The Charter and the SFPD’s regulations require the Department to promptly and fully cooperate with OCC investigations. Id. Despite this unequivocal mandate, the Department has hampered OCC’s investigations in significant ways. Id. See generally Mark Schlosberg, Op-Ed., Public Eyes: ‘Fajitagate’ Scandal Puts Police Accountability at Forefront, 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, the Department is lax in handing out discipline and the obstruction and delays cited in the report send a signal to rank and file officers that misconduct will not be taken seriously. More importantly, the Police Commission, which oversees the Police Department, has done nothing to address these issues and, in fact, has at times been complicitous in undermining the OCC.”). 60. See Harold Beral & Marcus Sisk, Note, The Administration of Complaints by Civilians Against the Police, 77 HARV. L. REV. 499 (1964) (noting that almost every city had 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 on Illusion, Fabrication, and Choice, 29 Harv. C.R.-C.L. L. REV. 1, 5-6 (1994) (“Race may be America’s single most confounding problem, but the confounding problem of race is that few people seem to know what race is.”). 62. See generally Cindy J. O’Hagan, Note, When Seeing is Not Believing: The Case for Eyewitness Expert Testimony, 81 GEO. L.J. 741 (1992); Christopher M. Walters,

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“Legal observers have [also] long recognized that cross-racial identifications by witnesses are disproportionately responsible for wrongful convictions.”63 In her law review article, Cross-Racial Identification Errors in Criminal Cases, Professor Sheri Lynn Johnson analyzes the problem of unreliable cross-racial identifications, and concludes that there is a much greater possibility of error when the races are different than when they are the same.64 The core of Professor Johnson’s legal scholarship is built upon the earlier groundbreaking studies completed by psychology and law professor Elizabeth Loftus. In her book, Eyewitness Testimony,65 Loftus presents a compelling thesis: eyewitness testimony is not always accurate or reliable. Furthermore, eyewitness testimony has been the basis for falsely identifying, convicting, and even jailing innocent people.66 Loftus’ research provides empirical proof that inaccurate eyewitness identification undermines the reliability and integrity of courtroom testimony. The findings in Eyewitness Testimony may help to illustrate the importance of expert witness testimony in criminal cases. The influence of race in eyewitness identifications, and the inconsistent use of expert testimony by the courts will likely continue. Perhaps the most reasonable proposal is to routinely admit expert testimony to inform the jury and to provide it with reasons to be skeptical. While the admittance of expert testimony is not a panacea for the problem of inaccurate witness identification, it would certainly assist judges and juries in understanding the importance of accurate eyewitness testimony.67

In State v. Cromedy,68 the Supreme Court of New Jersey addressed the issue of whether a cross-identification jury instruction should be required in particular cases prior to the establishment of a substantial agreement in the scientific community that cross-racial recognition impairment of an

Comment, Admission of Expert Testimony on Eyewitness Identification, 73 CAL. L. REV. 1402 (1985). 63. Sheri Lynn Johnson, Cross-Racial Identification Errors in Criminal Cases, 69 CORNELL L. REV. 934, 935-36 (1984); see also PATRICK M. WALL, EYE-WITNESS IDENTIFICATION IN CRIMINAL CASES 122-25 (1965); MARTIN YANT, PRESUMED GUILTY: WHEN INNOCENT PEOPLE ARE WRONGLY CONVICTED 99 (1991); BRIAN L. CUTLER & STEVEN D. 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); Sheri Lynn 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, 69 CORNELL L. REV. 934 (1984); see also Robin Parker, “They All Look Alike” - A Historical Perspective on State v. Cromedy, N.J. LAW., Aug. 2000, at 57. (“After centuries of experience, courts have concluded that eyewitness identifications of strangers may be unreliable evidence unless other facts link a defendant to the crime. The problem is especially 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 the Unreliability of Eyewitness Testimony, 2006 FED. CTS. L. REV. 3, 3-5 (2006). 68. 727 A.2d 457 (N.J. 1999).

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eyewitness is significant enough to warrant a special jury instruction.69 In Cromedy, the court reviewed a rape and robbery in which a cross-racial identification was made seven months after the offense occurred.70 Based on the victim’s inability to identify the defendant in a photograph, the seven-month investigation lag time, and the racial differences between the defendant and the victim, defense counsel sought a cross-racial identification jury instruction. The proposed jury instruction was, “[y]ou may 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’s original 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 that courts can take “judicial notice of the fallibility of trans-racial identifications and approve the report of the Task Force that recommended adoption of a cross-racial identification jury charge.”73 The State contended that “there is no consensus within the scientific community that an ‘own-race’ bias exists” or whether it affects “real life” identifications.74 The State urged the supreme court not to endorse a cross-racial jury instruction until “there is general acceptance that cross-racial impairment exists.”75 The court held that “the trial court’s failure to submit defendant’s requested charge on cross-racial identification . . . constituted reversible error.”76

More recently, the Maryland Court of Appeals reversed two defendants’ convictions and vacated their sentences when it found that the trial judge erred in precluding the defendants from discussing cross-racial identification in closing arguments.77 The court concluded that when the single piece of evidence introduced against a defendant is eyewitness testimony, the defense is entitled to argue about the inaccuracies of cross-racial identification in closing argument.78 In particular, it found that the trial court’s denial of the victim’s testimony regarding her enhanced ability to recognize faces, raised during trial in its closing argument, was an abuse of 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.

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III. RACE REFLECTED IN CRIMINAL PROCEDURE All too often, racial minorities have been disadvantaged by criminal

procedure rules that are race-neutral, as the rules have had a disproportionate effect on communities of color. The subject of criminal procedure will be examined with regard to the Fourth Amendment exclusionary rule and third-party residential searches.

Following a majority of circuits,80 the U.S. Court of Appeals for the Sixth Circuit in United States v. Pruitt81 recently held that “reasonable belief” is a lesser standard than “probable cause,” and that only a reasonable belief that a suspect is within the residence, based on common sense factors and the totality of circumstances, is required and is sufficient to allow officers to enter a residence to enforce an arrest warrant.82 Pruitt concerned a defendant’s “appeal[] of the district court’s grant of the Government’s motion for reconsideration of [defendant’s] motion to suppress evidence obtained during a protective sweep of a third-party’s residence.”83

When considering any search, it is important to remember the constitutional protections in place which guard against unreasonable searches and seizures. Particularly, the Fourth Amendment protects individuals from unlawful search and seizure. A search is unreasonable where it is performed by a government agent, the defendant had a reasonable expectation of privacy and there was no warrant based on probable cause.84 Probable cause exists where known facts and circumstances, of a reasonably trustworthy nature, are sufficient to justify a man of reasonable caution or prudence in the belief that a crime has been or is being committed.85 Probable cause is what would lead a person of reasonable caution to believe that something connected with a crime is on the premises of a person or on the person themselves; it is also the sum total 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.3d 1236, 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 Warrant Issued 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.

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cause exists, there must be an exception to the warrant requirement, in order for the search to be legal.87

The Sixth Circuit’s holding in Pruitt that a law enforcement officer’s reasonable belief — and not probable cause — that a suspect is within a residence is sufficient to enable him to enter such residence to enforce an arrest warrant was far from surprising. If nothing else, recent decisions such as Pruitt reinvigorate the debates about the exclusionary rule, and in particular, discussions concerning the issue of reasonableness versus probable cause. As Pruitt demonstrates, because Supreme Court rulings have not offered clear standards for federal and state law enforcement officers, it has been up to lower courts to decide its meaning and place within the context of the other Fourth Amendment standards.

Here I argue that the Pruitt decision was wrongly decided, for different reasons. The reasonable belief standard announced and applied in Pruitt is insufficient in protecting the heightened privacy interest in the home, which, as mentioned earlier, dictates the requirement of a search warrant for all nonconsensual and nonexigent searches in a private dwelling.

In order to understand Pruitt, it is necessary to consider the background created by earlier decisions of other circuits that ruled similarly: that the consideration of common sense factors and the totality of circumstances sufficiently formulate a reasonable belief that a suspect is on the premises. In fact, even before Pruitt, a majority of federal courts held that reasonable belief is a lesser standard than probable cause. In United States v. Risse,88 for example, the Eighth Circuit affirmed a district court’s denial of a cross-appellant’s motion to suppress on the basis that the police had a reasonable belief that appellant’s girlfriend, the subject of an arrest warrant, resided with appellant at his home.89 It was clear that the police had a reasonable belief that the target of the arrest warrant was present at the cross-appellant’s residence when the warrant was executed. The court held that the officer “possessed legal authority to enter the residence pursuant to a valid arrest warrant,” that “the seizure of evidence in plain view was valid, and the . . . search warrant was supported by probable cause.”90

In a separate appellate decision, the Eleventh Circuit in United States v. Magluta91 reversed a district court’s order granting defendant’s motion to suppress because the facts supported the marshals’ reasonable belief that defendant 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).

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plain view during a protective sweep was properly used to secure a search warrant.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 found that for entry into a third-party’s residence for a person named in an arrest warrant, the police are required to exercise due diligence and have a “reasonable belief.” The same court, a decade ago, offered in United States v. Route,95 the standard for determining the amount of due diligence required to support a reasonable belief that a defendant lives at and is present within a residence. In that case, police officers executed a valid arrest warrant for defendant, Route, and found him outside of his residence.96 During the search for a co-defendant, for whom officers also had a valid arrest warrant, officers found further evidence of Route’s criminal activity inside his residence.97 Route challenged the district court’s denial of his motion to suppress evidence seized from his residence.98 The court held that the search of Route’s residence was supported by a valid arrest warrant for the co-defendant and by the officer’s reasonable belief that the co-defendant lived at the residence and was within the residence at the time of entry.99 The circuit court concluded that the arresting officer had performed sufficient due diligence in concluding that the co-defendant lived at the residence because the co-defendant’s credit card applications, water and electricity bills, vehicle registration, and mailing address confirmed that he lived at the residence.100 The court further concluded that the officer’s reasonable belief that the co-defendant was within the residence at the time of entry was confirmed by the presence of a vehicle in the driveway and noise from a television inside the residence.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.

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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 that entry into defendant’s apartment was lawful based on its holding that “an officer executing an arrest warrant may enter a dwelling if he has only a ‘reasonable belief,’ falling short of probable cause to believe, the suspect lives there and is present at the time.”103 During the early morning, Deputy U.S. Marshals arrived at defendant’s apartment to execute a warrant for his arrest in connection with a parole violation.104 In dicta, the court noted that, “[a]s for whether the officers had reason to believe Thomas would be at home when they executed the warrant, the early morning hour was reason enough.”105

During the following year, in Pruitt, the issue was whether officers may rely on an arrest warrant, coupled with reasonable belief that the subject of the warrant is within a third-party’s residence, to enter that residence to execute the warrant.106 The defendant, Demetrius Pruitt, argued that the officer did not have “probable cause based on an uncorroborated anonymous tip and the statement of an unknown and untested drug-seeking informant.”107 The government argued “that a lesser reasonable belief standard, and not probable cause, [was] sufficient to allow officers to enter a residence to enforce an arrest warrant.”108

Writing for the three-judge panel,109 Circuit Judge David McKeague began his formal analysis in the second part of the opinion by referencing the leading case relied on by Pruitt:110 Steagald v. United States.111 Steagald addressed the rights of a third-party homeowner when police entered his home to search for a non-resident suspect named in an arrest warrant, and held that police must obtain a search warrant before entering the third-party residence.112 In that case, pursuant to an arrest warrant for Ricky Lyons, Drug Enforcement Administration agents entered Gary Steagald’s home to search for Lyons without first obtaining a search warrant.113 In his home the agents found incriminating evidence, and arrested Steagald on federal charges.114 Steagald moved to suppress all evidence 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.

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illegally obtained because the agents had failed to obtain a search warrant.115 The motion was denied, he was convicted, and the Fifth Circuit Court of Appeals affirmed.116

The Supreme Court reversed the Fifth Circuit Court of Appeals, and held that the government is precluded from contending to the Court that Steagald lacked an expectation of privacy in his searched home sufficient to prevail on his Fourth Amendment claim.117 In robust dicta, the Court stated:

[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 officers may rely on an arrest warrant, coupled with the reasonable belief that the subject of the warrant is within a third-party’s residence, to enter that residence to execute the warrant.”119 The court instead referred to Payton v. New York,120 an earlier Supreme Court case, as controlling precedent. There, the Supreme Court addressed the rights of a suspect in his own home and held that the police may enter to arrest him when they have a valid arrest warrant and reason to believe that he is inside, asserting that “an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.”121

In Payton, New York detectives assembled evidence sufficient to establish probable cause to believe that Theodore Payton had murdered the manager of a gas station two days earlier, and six officers went to Payton’s apartment 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.

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warrantless entries were authorized by New York statute).122 Hearing music and seeing lighting emanating from the apartment, but with no response to their knock on the door, the officers used crowbars to break open the door and enter the apartment. Although no one was inside, “in plain view, . . . was a .30 caliber shell casing that was seized and later admitted into evidence at Payton’s murder trial.”123

As evident in Pruitt, the Court had previously held that police may enter a suspect’s own home pursuant to an arrest warrant when there is “reason to believe” the suspect is inside.124 The Supreme Court reasoned that “[i]f there is sufficient evidence of a citizen’s participation in a felony to persuade a judicial officer that his arrest is justified [then] it is constitutionally reasonable to require him to open his doors” to the police. 125 “Because an arrest warrant authorizes the police to [seize and] deprive a person of his liberty, it necessarily also authorizes a limited invasion of that person’s privacy interest when it is necessary to arrest him in his home.”126

Even when the two controlling Supreme Court cases are considered together, they offer little guidance to lower courts. Curiously, under the Payton-Steagald platform, to go into a third-party home without permission, courts have required a “reason to believe,” a term used interchangeably with “reasonable belief” and “reasonable grounds for believing.” Just what any of those terms really mean remains unclear. Nevertheless, the Pruitt court proceeded with its interpretation, and relied on Payton, independent of Steagald. The Pruitt court was persuaded by the government’s arguments that while a circuit-split exists on this issue, the majority of courts have ruled that a “lesser reasonable belief standard, and not probable cause, is sufficient to allow [the police] to enter a residence to enforce an arrest warrant.”127 With this in mind, the court then concluded that the officers in the case had adequate information to meet this reasonable belief standard based on common sense factors and the totality of 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 court surmised that under Payton, the Supreme Court intended different standards for the term “probable cause” and “reasonable belief” to describe the foundation for an arrest warrant, and that this is the rationale behind using 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.

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probable cause to be the standard for entering a residence, it would have expressly stated so” and therefore two “different standards apply.”130 Accordingly, the court reasoned: (1) Reasonable belief is established “by looking at common sense factors and evaluating the totality of the circumstances;” (2) “[T]he [officers] considered . . . his drug dealing past and his street name, to develop a reasonable belief that Pruitt was in the residence;” (3) “Our decision is consistent with the majority of our sister circuits who have ruled that consideration of common sense factors and the totality of the circumstances is sufficient to formulate a reasonable belief that a suspect is on the premises;” (4) “Our holding contrasts with that of the Ninth Circuit, which alone has ruled that reasonable belief is the equivalent of probable cause in determining whether a suspect is within the residence.”131 But in a separate concurrence, echoing the Ninth Circuit in United States v. Gorman,132 Judge Eric Clay believed that the “reason to believe” standard under Payton is the functional equivalent of “probable cause.”133 He stated that the “[c]ourt must ask whether the officers’ belief that [the] Defendant was inside 2652 Meistser Road was an objectively reasonable belief given the circumstances known to the officers at the time.”134

Similarly troublesome issues have arisen in Fifth Amendment jurisprudence. In Davis v. United States,135 the Supreme Court considered the degree of clarity necessary for a custodial suspect to invoke the Miranda rights to counsel after a waiver.136 Significantly, Davis appears to set forth a clear and concise rule of law. The decision purports to finally decide the issue of how clearly a criminal suspect must assert his Fifth Amendment right to counsel.137 The Davis Court held that after a suspect knowingly and voluntarily waives his Miranda rights, law enforcement officers may continue their questioning until and unless the suspect clearly requests an attorney.138 The Court reasoned that although agents continued to question Davis after he stated, “I think I want a lawyer before I say anything else,”139 the continued questioning did not violate the suspect’s Fifth 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.

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At first glance, this rule seems contrary to Miranda v. Arizona.141 Under the Davis decision, if a suspect does not unambiguously request counsel, law enforcement officers may continue questioning him.142 Under the Court’s new mandate, a suspect must clearly articulate his desire to have counsel present, such that “a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.”143 Davis may be considered an advance for the interests of law enforcement, and a setback for criminal suspects.

From the beginning, critics of Davis have charged that it marks a departure from the Fifth Amendment’s requirement that the government bear the entire burden of protecting an individual’s privilege against self-incrimination. The Court in Miranda held that “[i]f the individual desires to exercise his privilege, he has the right to do so. This is not for the authorities to decide.”144

These criticisms cannot be easily dismissed. While the Court’s new limitations on ambiguous post-waiver request for counsel may make good sense as a matter of public policy, the Court has yet to provide a convincing explanation for its doctrinally unsupported decision. The Court seems deeply uncertain about what the precise nature of the rule on ambiguous requests for counsel should be.145 The basic conceptual uncertainty together with a series of unexplained doctrinal quirks, has confused and confounded the state officials and lower-court judges who labor with the decision at the ground level.146

Despite these difficulties, limitations placed on ambiguous requests for counsel under Davis seem destined to remain in place, at least for the foreseeable future. The Davis decision allows the lower courts, as a constitutional as well as a practical matter, to ignore ambiguous requests. The different jurisdictions are now free to develop their own standard for clarity, thereby creating even more uncertainty than before the Davis decision.147 Also, lower courts are confronted with cases which require the second-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).

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counsel was ambiguous enough to alleviate the need for clarification. Judges are then compelled to perform objective inquiries into the facts surrounding the interrogation. With these important issues in mind, and the crucial question that Justice Souter poses in his concurring opinion (“‘how clear is clear?’”148), it is time to attempt to understand the Davis rule on its own terms.

Under Davis, an ambiguous invocation of an individual’s right to an attorney after an initial valid waiver is ineffective (e.g., the sequence is warning, waiver, questioning, and then an ambiguous statement).149 The question remains after Davis: does the Davis rationale apply to an initial ambiguous response (e.g., sequence is a warning, followed by an ambiguous statement)? I argue that it does not. That is, the Davis rationale is limited to the post-waiver ambiguity, not an ambiguous request for counsel in the context of the initial advisement of rights. Furthermore, if Davis does not apply to the initial warning, then police officers would not have to employ a clarification approach. Such an interpretation would serve as a slight relief to defense attorneys in the trenches and appellate courts struggling with this question.

In suggesting that Davis does not apply to pre-waiver ambiguity, I do not mean to applaud the decision itself. In fact, I believe that the Davis decision is inherently inconsistent. In fact, the inherently inconsistent analysis of Miranda is troubling because it enables the Court to maneuver in two directions at once. Alternatively, I argue that Miranda remains the important source of the standard known as “Miranda rights,” which positively mark the constitutional limits of custodial interrogations by law enforcement.150 The case also remains at the forefront of the debate about a defendant’s constitutional rights and crime control.151 For criminal defendants, Miranda still stands as a shield against coercive police questioning involving subtle, and sometimes not so subtle sophisticated ploys, and trickery based on manipulation, persuasion, and deception.152 Therefore, in situations where a suspect makes an ambiguous response prior 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 existed during police interrogation.”); cf. Bruce G. Peabody, Nonjudicial Constitutional Interpretation, Authoritative Settlement, and a New Agenda for Research, 16 CONST. COMMENT. 63, 64 (1999) (explaining that politicians and commentators have debated for centuries about who has the authority to interpret the Constitution, but the debate has become 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.

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To sum up, unless Fourth and Fifth Amendment jurisprudence embarks in a new direction, it is likely that the individual rights of the accused will continue to be weakened.

CONCLUSION All of the examples offered in this article offer strong support for the

proposition that criminal justice cannot be equally divided between good guys and bad guys or between justice and injustice. Rather, criminal justice and racial justice are complex subjects each deserving of deeper consideration. A closer and more meaningful examination of the continually evolving criminal justice system would uncover the real reasons for crime, which would assist policymakers in developing pragmatic measures to address the present day realities of crime and punishment.