528 U.S. 119, 121 (2000). Comprehensive criminal procedure - CLS Pegasus Library Catalog Gaynes, supra note 11, at 621. Close In ways large and small, these decisions discipline citizens into performing good citizenship. 119 See Yale Kamisar, Mapp v. Ohio: The First Shot Fired in the Warren Courts Criminal Procedure Revolution, in Criminal Procedure Stories 45, 47 (Carol S. Steiker ed., 2006). 145 Of course, racialized policingagain inextricable with how we conceive our equal citizenshipis not an isolated phenomenon. After all, good citizens do not flee. Henry Louis Gates, Jr., Editorial, What Is Patriotism?, 253 Nation 75, 91 (1991). Of course, there are the videos too of the individuals who were not thinking of cameras or of their interactions being documented. And of course, while even good citizens have a privilege against self-incrimination, and while of course the burden of proof always remains with the government, good citizens, if wrongly accused of a crime, will immediately present themselves to the authorities to prove their innocence. have. Alan Blinder, Ben Fields, South Carolina Deputy, Fired over Student Arrest, N.Y. Times (Oct. 28, 2015), http://www.nytimes.com/2015/10/29/us/south-carolina-deputy-ben-fields-fired.html?_r=0 (on file with the Columbia Law Review); Robert Parmer, The Spring Valley High School Incident: How Cell Phones Helped Uncover Police Brutality, Thought Catalog (Nov. 10, 2015), http://thoughtcatalog.com/robert-parmer/2015/11/ James Madison, Who Are the Best Keepers of the Peoples Liberties?, Natl Gazette, Dec. 20, 1792, reprinted in 6 The Writings of James Madison, 17901802, at 120 (Gaillard Hunt ed., 1906) (imagining a dialogue between republican and anti-republican responses to the title question). 795. 266 Close Policy Forum, Columbia Law Sch. Id. But then I began to reread opinions that I thought I knew. Close. 249 to less well-known cases like McCray v. Illinois. Illinois v. Lidster, 540 U.S. 419, 425 (2004) (quoting Miranda v. Arizona, 384 U.S. 436, 47778 (1966)). 314 I am reminded of Paul Butlers recent discussion of race and class. Close 294 To take a knee, as NFL players and others have recently done to protest racialized policing. Jack M. Balkin & Sanford Levinson, Thirteen Ways of Looking at Dred Scott, 82 Chi. 27 art. Close When Mapp insisted, I want to see the search warrant, the officers responded by flashing a sheet of paper, which Mapp snatched and placed in her bosom. 219 In New York City alone, police executed over 4.4 million forcible stops between January 2004 and June 2012, with eighty-four percent of those stopped individuals being black or brown. 129 All of this, after all, falls under what Professors Lani Guinier and Gerald Torres call demosprudence, or action instigated by ordinary people, to change the people who make the law and the landscape in which that law is made. 959 F. Supp. Colb, supra note 110, at 1486 (noting that stopped individuals are left wondering, Why me? What citizenship is expected of racial minorities there? Close Close Close Close 60 U.S. 393 (1856). Close Id. And Philando Castile, who was shot in his car as he reached into his pocket for his license. Understanding race and policing, in turn, becomes clearer against the backdrop of the Courts criminal procedure cases, which, even when race is unsaid, are on a certain level race cases. Stanley Fish, Is There a Text in This Class? Nearly all hearings are public. In part, this is because citizenship and race have always been interconnected in this country. 298 What I had not seen, until now, was the way these decisions were also about citizenship, especially citizenship vis--vis the police. Close 192 We see similar error rates in another policing tool: pretextual traffic stops, or what blacks have long come to know as Driving While Black. 1 (setting out the states ability to import such Persons as any of the States now existing shall think proper to admit); U.S. Const. 10/03/AR2008100301977.html [http://perma.cc/54JV-LURC] (discussing President George W. Bushs response after 9/11 urging Americans to carry on as if there were no war). 328 The Courts criminal procedure decisions also contribute to the states network of writing. 214 Roosevelt urged Anglo-Saxons to counteract the immigrant birthrate by producing big families of their own with children who would have strong racial qualities and who too would become good citizens. THE PLACE OF THE PEOPLE IN CRIMINAL PROCEDURE They regulate the behavior of citizens. The extra work stems from the long association of American-ness with whiteness Your country? Thus far, I have argued that embedded in the Courts criminal procedure jurisprudenceat times hidden in plain sight, at other times hidden below the surfaceare asides about what it means to be a good citizen vis--vis policing power. L.J. Close As another scholar has written, [I]t is the policing power that never passes for such. D.A. Ct. Rev. During World War I and World War II, the call was to able-bodied young menUncle Sam Needs You! 109 Close 17 95 What liberal democratic politics requires is that the others are not seen as enemies to be destroyed, but as adversaries whose ideas might be fought, even fiercely, but whose right to defend those ideas is not to be questioned. See generally Andrew Guthrie Ferguson, Big Data and Predictive Reasonable Suspicion, 163 U. Pa. L. Rev. In short, the police marked individualsagain, the vast majority of whom were innocentfor future records. These calls to good citizenship are not just evident by the flags people hang in front of their doors and in the bumper stickers telling us to Support our Troops! We are also enlisted in more direct ways. Annotated Codes, Digests and Reports 2 2. 1255, 1260 n.20 (1994) (describing his decision to use a politics of distinction, which distinguishes between different parts of the African American community). 81 The current war against terror has again brought to the fore calls to be good citizens. Pregnant Prisoners in Shackles | Voices in Bioethics There is also something disconcerting about citizenship talk that chills dissent. 117 This Journal This is true of cases like Terry, which gave its imprimatur to stop-and-frisks based on reasonable suspicion, and which never mentioned the race of the defendants, both black. Dont start talking about rights. 1973b (2012). 33 Consider the Courts many statements that it is a mark of good citizenship to voluntarily assist the police and answer questions. Frank Rudy Cooper, Whos the Man?: Masculinities Studies, Terry Stops, and Police Training, 18 Colum. about who belongs and who does not); Lawrence Lessig, The Regulation of Social Meaning, 62 U. Chi. Younger v. Harris, 401 U.S. 37, 65 (1971) (Douglas, J., dissenting). This citizenship talk insists that good citizens should welcome the presence of police officers and consider it their duty to assist them, even if it means informing on neighbors, family, and friends. 265, 27588 (1999) (giving statistical analysis for excessive traffic stops against black drivers in cities across the United States); Christopher Ingraham, You Really Can Get Pulled over for Driving While Black, Federal Statistics Show, Wash. Post (Sept. 9, 2014), http://www.washingtonpost.com/news/wonk/wp/2014/09/09/you-really-can-get-pulled-over-for-driving-while-black-federal-statistics-show/ [http://perma.cc/ 147 And this is just the start. In this sense it is unsurprising that the government would use that speech to inculcate good citizenship. Close, All of this reminds me of the dissenting citizens who have posted videos of their police interactions on YouTube. Close Close Fifteen Years of Supreme Court Criminal Procedure Work: Three 61 Close 132 See Bell, supra note 3, at 2057 (using the term to describe the feeling shared by many African Americans of being essentially statelessunprotected by the law and its enforcers and marginal to the project of making American society). . 48 Kent L. Rev. What grade of humankind were these Africans in America? Instead, the Court held that Dred Scott was not a citizen, but a being of an inferior order. 230 The observation tower, along with the architectural contrivances of lighting and strategically placed mirrors, places prisoners under constant perceptual surveillanceperceptual, because the prisoners themselves are unable to tell when they are actually being watched and when they are not. 279 235 These issues inform the argument I want to make, but they are not at its core. CRUEL TIMING: RETROACTIVE APPLICATION OF STATE Far from it. 206 434 U.S. 106, 111 (1977) (granting officers unfettered discretion, under the Fourth Amendment, to order drivers out of the vehicle following a legitimate traffic stop). 191 It is their contingent citizenship, after all, that explains why black victims of Hurricane Katrina were often described in the media as refugees, a term normally associated with noncitizens. They were white, but not white enough. Actual continuous state surveillance is unnecessary. 1559, 156568 (1989) (describing the [v]igilance and psychic energy required to withstand these recurring assaults). Close 221 453, 458 (2007) (describing Constitution Day as an attempt to rectify public ignorance about the Constitution). Perceptual surveillance renders the prisoners compliant, subservient, docile, and good. 2231, 2245 (1993) (citing Charles Ogletree, Lecture at the Association of American Law Schools Annual Meeting (Jan. 1990)). 344 Criminal Procedure Close More than twenty years later, the sergeant admitted that in fact the police did not have a warrant. See Leti Volpp, Civility and the Undocumented Alien, in Civility, Legality, and Justice in America 69, 93 (Austin Sarat ed., 2014) (Coming out constructs oneself as a political agent. 528 U.S. 119, 121 (2000). Given our history of associating crime with race, of giving crime a dark face, it should not surprise that even in cases in which race is ostensibly absent, race is still present. The term citizen in this Essay, especially when I speak of the good citizen, is not meant in an exclusionary sense to distinguish between those who are legally recognized as citizens and those who are not. 330 Far from it. In Brown v. Walker, the Court states that [e]very good citizen is bound to aid in the enforcement of the law. 21, 2012), http://ideas.time.com/2012/03/21/ CRIMINAL PROCEDURE AND THE GOOD CITIZEN and in preventing a wrong upon the government. Close 143 For the longest time, I assumed that the messages about good citizenship would come from the executive and legislative branches but not the judicial branch. Nor is Illinois v. Wardlow the only flight case in which the Court engaged in citizenship talk. For example, it was recently revealed that the Department of Defense paid millions of dollars to 18 NFL teams, 10 MLB teams, eight NBA teams, six NHL teams, eight soccer teams, as well as NASCAR to make patriotic displays. criminal procedure | Wex | US Law | LII / Legal Information 193 14 351 Close The good citizen, having nothing to hide, welcomes police surveillance. Close a sentiment the Court endorsed again in Georgia v. Randolph. Close . 28 112 10 This checklist is designed to be used with the CLIENT IDENTIFICATION VERIFICATION AND SOURCE OF MONEY (A-1) and CLIENT FILE OPENING AND CLOSING (A-2) checklists. Mapp v. Ohio, 367 U.S. 643 (1961). See generally David B. Kopel, The Posse Comitatus and the Office of Sheriff: Armed Citizens Summoned to the Aid of Law Enforcement, 104 J. Crim. Good citizens should willingly waive their right to silence, or its opposite, their right to speak. Close 820, 84144 (1994) (Racial discrimination in law enforcement has not escaped the Supreme Courts notice. 213 His crime: notifying the police officer he was in possession of a licensed firearm. Close . 346 876, 876 (2004) (The stereotype of Black Americans as violent and criminal has been documented by social psychologists for almost 60 years.); Jerry Kang, Trojan Horses of Race, 118 Harv. 232 341 Read between the lines, and the Courts citizenship talk also dictates how a good citizen should behave, move, and even speak. Even without TIPS, other demands linger. There is more, of course. 1005, 100709 (2010) (explaining that the Supreme Court has allowed racial profiling in federal immigration enforcement under Brignoni-Ponce and Whren); Sheri Lynn Johnson, Race and the Decision to Detain a Suspect, 93 Yale L.J. 186 See generally Elizabeth A. Gaynes, The Urban Criminal Justice System: Where Young + Black + Male = Probable Cause, 20 Fordham Urb. 212 227 . 32 57 Though involving a white defendant, the Court was well aware of the impact the case would have given racial disparities in the imposition of the death penalty. The citizen who has strayed from the straight and narrow and has in fact committed a crime is also encouraged to do their duty. As Professor Lauren Ouziel has remarked, the Warren Courts criminal procedure cases generated intense public interest; the cases were publicized, debated, and commented upon widely in the media and the political sphere. Close It is internalized by lower courts and state courts, by district attorneys and public defenders. 70 7,629. Close These are just some of the names from the past few years. 1456, 1459 (1996) (People feel differently about guilty versus innocent holders of Fourth Amendment privacy rights.); William J. Stuntz, Waiving Rights in Criminal Procedure, 75 Va. L. Rev. 291 1153, 115559 (1998) (arguing that the extent to which the modern regime of criminal procedure eliminates local discretion, though created to protect minorities, now restricts helpful community-policing tactics). This is not only in the sense that those who have been convicted of felonies can be stripped of rights we normally associate with citizenship, or as Michelle Alexander argued in The New Jim Crow, that we seem to deliberately use crime as a way to relegate blacks to second-class status. Close One goal of this Essay is to surface this aspect of criminal procedure decisions. Close Close 107 See Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977) (holding that police officers may order drivers out of a vehicle after making traffic stops). For the Greyhound travel time between Ft. Lauderdale and Detroit, see Bus Trips from Ft. Lauderdale, FL, to Detroit, MI, Greyhound, http://www.greyhound.com/en/ 36 Devon W. Carbado, From Stopping Black People to Killing Black People: The Fourth Amendment Pathways to Police Violence, 105 Calif. L. Rev. Foucault, Discipline and Punish, supra note 120, at 26. Close. That the consent is voluntary, even if unknowing, will suffice. Dont forget that. and which do not; which citizens willingly cooperate with the authorities and voluntarily bring criminal activity to light Weband the staff of the Columbia Law Review for their outstanding editorial assistance. 112 or even master texts that contribute to an ideology of race and racial hierarchy. 208 122 But as I have argued previously, it is also true of cases involving white defendants when it is clear that the impact of the Courts decision will have a disproportionate effect on racial minorities. Close. Close State Police, No. 78 International Criminal Investigations The Reconstruction period, however, was followed by the undoing of the Negro as a citizen. Carter G. Woodson, Fifty Years of Negro Citizenship as Qualified by the United States Supreme Court, 6 J. Negro Hist. A special thanks to Justin Murray for prompting me to think along these lines for future research. Close. Imagine how such an emphasis on equality under the law could change the outcomes, not only in cases like Whren, but also cases like Pennsylvania v. Mimms, 9 This is a distinction with a difference. Rule 1. Scope; Authority of the Chief Judge; Definitions Close Close Im tired of it. . Consequently, the wise traveler should carry a copy of the Fourth Amendment and display it to the questioner and thus avoid any unnecessary discourse. Close Duncan v. Louisiana, 391 U.S. 145, 16062 (1968). Close (1) Bump stock means any object that, when installed in or attached to a firearm, increases the rate of fire of the firearm by using energy from the recoil of the firearm to generate a reciprocating action that facilitates repeated activation of the trigger. After all, who except a bad citizen would not be interested in enhancing their own safety and the safety of those around them? A more recent example is Utah v. Strieff, 136 S. Ct. 2056 (2016), in which the Court held that in certain circumstances evidence discovered during a stop can be used against a suspect at trial, even though the stop itself was unconstitutional. 96 333, 340 (1998) (In Whren the Court repeats its earlier mistakes. Even our interactions with the police are tracked. 238 118 Id. the right to Miranda warnings, A decision that stressed the importance of individual rights would have, at a minimum, required that officers ask Davis clarifying questions and readvise him of his right to remain silent and right to counsel. 38 In other words, who, but a bad citizen, would refuse consent? 123 307 www.editorandpublisher.com/news/use-of-the-word-refugee-stirs-newsroom-debate/ [http:// . 327 31 Nor is there is any requirement that the consent be knowing. 274 1, 18 (1995) (citing studies that find women and minorities use indirect and hedged speech patterns). Volunteers in Law Enforcement, DiscoverPolicing, http://www.discoverpolicing.org/ Close Schneckloth v. Bustamonte, 412 U.S. 218, 231 (1973). 359 And lastly, should the good citizen for some reason find it absolutely necessary to assert his rights, such as his right to an attorney, he will assert those rights unambiguously to distinguish himself from other citizens who lack linguistic skills. and when retaliations and protests against police spur calls to take America backthe Courts citizenship talk may very well further inequality. and indeed, the entire process by which the Fourth, Fifth, and Sixth Amendments were incorporated and made applicable to the states, For this very reason, the good citizen would never run from the police, disobey a police order, or engage in evasive behavior, however wrong or dangerous the order may prove to be. And, given the reach of American jurisdiction, what process and protections are owed noncitizens on domestic and foreign soil? Videos like the one of Sandra Bland. See Schneckloth, 412 U.S. at 219. Close And if in the unusual event a good citizen in fact commits a crimeperhaps it was a malum prohibitum crimethe good citizen will go a step further and admit his wrongdoing and accept his punishment. 1 (1999) (explaining the links between the social citizenship tradition and the court-centered ideal of the Constitution as a safeguard of discrete and insular minorities). Columbia Court Reform and Criminal 314 See, e.g., David Ray Papke, The Impact of Popular Culture on American Perceptions of the Courts, 82 Ind. See Editorial, Lifesaving Lessons for Driving While Black, N.Y. Times (May 12, 2017), http://www.nytimes.com/2017/05/12/opinion/driving-while-black.html (on file with the Columbia Law Review) (observing that a newly enacted Virginia law requires drivers education courses to teach students how to interact with police officers during traffic stops to minimize the risk of police escalation); see also Mary Emily OHara, NJ Assembly Passes Bill Requiring Kids Be Taught to Interact with Police, NBC News (June 22, 2017), http://www.nbcnews.com/news/us-news/nj-assembly-passes-bill-requiring-kids-be-taught-interact-police-n775516 [http://perma.cc/26D5-QWUJ] (discussing a New Jersey bill that would mandate K-12 instruction in how to talk to police officers). 349 207 Close As the Court glibly put it in Korematsu v. United States, the case upholding the constitutionality of the military exclusion order, Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier. For that matter, what happens when we assume that Bland, by talking back and refusing to voluntarily exit her car until the officer provided her a valid reason, was calling into question the governments eternal temptation. 268 Close Close 121 Close . PAPERS. What are we to make of the Courts implied marking of certain citizens as not good, or indeed as insubordinate and unruly? 102 to, somewhat later, An American Dilemma: The Negro Problem and Modern Democracy. 186 magazine/2017/01/23/president-obamas-memorable-parting-words [http://perma.cc/ Even in the face of official politeness, we must suffer what Professor Sherry Colb terms targeting harm. Close, [Citizens stopped at checkpoints should react] positively when police simply ask for their help as responsible citizens. However, it is the role the Court plays in providing normalizing judgments that interests me most. 173 Nor is my primary interest citizenship as belonging . . 673, 673 (1992) (arguing Miranda presents only the illusion of enhancing rights, when in fact it legitimates the status quo). 1339, 1363 (2015); see also Frank Rudy Cooper, We Are Always Already Imprisoned: Hyper-Incarceration and Black Male Identity Performance, 93 B.U. Close Hunter Biden Plea Deal 'Far From Standard Operating Procedure': But the Court avoided this problem by holding that the mere fact that the youth fled, coupled with the fact this was a high-crime neighborhooditself often a euphemism picture in your mind the All-American girl, or the All-American boyand an interconnected problem: the association of black and brown minorities with criminality. as conceived by Professor Kenneth Karst, though this too informs my project. 342 Her recent book, Policing the Open Road: How Cars 227 329 Close 21 167 253 Yale Kamisar, Equal Justice in the Gatehouses and Mansions of American Criminal Procedure: From Powell to Gideon, from Escobedo to. Conflict in liberal democratic societies cannot and should not be eradicated, since the specificity of pluralistic democracy is precisely the recognition and legitimation of conflict. The manual even suggests how requests for consent should be phrased, suggesting phrasing that employs psychology in your favor. 72 138 She was asking, when we say, serve and protect, who exactly are the police serving and what are they protecting? Pub. 196 And when we do resist, we are met by incredulity and suspicion, badgered for being noncompliant, and marked as not good. See Maryland v. Wilson, 519 U.S. 408, 410 (1997) (extending the Courts holding in Mimms to passengers). 303 Consider the increasingly vociferous calls to build a wall between America and Mexico. 42 Naturalization Act of 1790, ch. Citizens, assuming they are good citizens, will consider their cooperation voluntary. See Peggy C. Davis, Law as Microaggression, 98 Yale L.J. See, e.g., Fred E. Inbau et al., Criminal Interrogations and Confessions (5th ed. 309 L. & Criminology 544, 551 n.44 (1997). The good citizen, at times, willingly waives their right to silence, and at other times their right to speak. Davis L. Rev. In this essay, Partner Joanna Wright explores the expansion of judicially created exceptions to criminal procedure rights and legislation eliminating criminal procedure rights for certain groups of people or for all people in certain situations. Bectons crime: crashing the pool party with other teenagers. Id. As the Court put it in Whren, the case that gave its imprimatur to pretextual traffic stops, equal protection is a matter for the Equal Protection Clause, not the Fourth Amendment. Scholars have been almost unanimous in noting that the consent exception disregards evidence that psychological pressures often induce individuals to consent. Mapp, 367 U.S. at 64445. See Epp et al., supra note 117, at 64, 10506; Capers, Race, Policing, and Technology, supra note 144, at 125557; Jeffrey Fagan et al., Stops and Stares: Street Stops, Surveillance, and Race in the New Policing, 43 Fordham Urb. See Floyd v. City of New York, 959 F. Supp. Close Close Close And this is only part of what the Courts citizenship talk does. 81 For my part, I have posited that there is something called reading black. at 1 (noting countless people found themselves arguing their racial identity in order to naturalize under Congresss white person prerequisite). Similarly, the Courts many rulings that deny Fourth Amendment protection to individuals when only contraband can be discoveredsee, e.g., United States v. Place, 462 U.S. 696 (1983)is legible only against the backdrop that only good citizens are worthy of Fourth Amendment protection.