Vanderbilt Law Review Volume 54 Issue 2 Issue 2 - March 2001 Article 5 3-2001 The Troubling Influence of qualityE in Constitutional Criminal Procedure: From Brown to Miranda, Furman and Beyond Scott W. Howe Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Criminal Procedure Commons Recommended Citation Scott W. Howe, The Troubling Influence of qualityE in Constitutional Criminal Procedure: From Brown to Miranda, Furman and Beyond, 54 Vanderbilt Law Review 357 (2001) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol54/iss2/5 This Article is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. The Troubling Influence of Equality in Constitutional Criminal Procedure: From Brown to Miranda, Furman and Beyond Scott W. Howe 54 Vand. L. Rev. 359 (2001) This Article identifies and critiques a view of the crimi- nal-procedure clauses in the Bill of Rights that is revealed in Supreme Court decisions after Brown v. Board of Education. Professor Howe argues that the Court has gone astray in con- structing these clauses by focusing on equality. He contends that the criminal-procedure clauses are better understood as discrete protections of individual liberty than as reflecting a unified theory or separate theories about equality. Building on this perspective, the Article proposes a reformulation of doc- trine in varied realms of constitutional criminal procedure, including police -interrogation,capital sentencing, and admin- istrative searches and seizures. The Article also calls on a more general level for rethink- ing how judges should implement a call for equality as they regulate criminalprocedure under the Constitution. The Four- teenth Amendment directs states to provide "equalprotection of the laws" to all persons, a command that applies to the crimi- nal process. However, equality is a derivative idea in that it always requires an external substantive standard for judging likeness and difference. Consequently, Professor Howe con- tends that even an explicit command of "equal" treatment can only serve as a rhetorical device, authorizing the judiciary to construct substantive standards regarding governmental con- duct. It is for this same reason that equality has no role under the criminal procedure clauses, even as a rhetorical device; those clauses already call for particularized substantive stan- dards. The Article proposes that judges apply the Bill of Rights and reconstruction amendments in criminal procedure by fo- cusing on substantive standards concerning how government should treat persons. Judges should implement the substan- tive values embodied in the criminal-procedureclauses. They should impose further protections against discrimination deemed to warrant constitutional proscription through the more open-ended provisions, such as the Equal Protection and Due Process Clauses. However, the resolution of what the open-ended clauses should demand must itself build on the substantive construction given those clauses by the judiciary rather than on anything inherent in the notion of equality. The Troubling Influence of Equality in Constitutional Criminal Procedure: From Brown to Miranda, Furman and Beyond Scott W. Howe* I. THE NATURE OF PRESCRIPTIVE EQUALITY .......................... 365 A. HistoricalSignificance ........................................... 366 B. Scholarly Challenge................................................ 368 C. Application as a General Mandate.......................... 372 II. THE SHORT-LIVED INFLUENCE OF EQUALITY UNDER THE OPEN-ENDED CLAUSES ...................................................... 376 A. The Rise of PrescriptiveEquality ............................ 376 1. Pre-Brown.................................................... 377 2. From Brown to the Early 1970s ................... 379 B. UncertainLimits and Justice Harlan's Concerns ... 385 C. The Court's Retreat................................................. 388 III. THE ENDURING INFLUENCE OF EQUALITY UNDER VARIOUS CRIMINAL CLAUSES ............................................................ 392 A. The Fifth and Sixth Amendments and Interrogation.......................................................... 393 B. The Eighth Amendment and Capital Sentencing .... 403 C. The Fourth Amendment and Administrative Searches ................................................................. 411 * Professor and Associate Dean for Academic Affairs, Chapman University School of Law, A.B., 1977, University of Mfissouri; J.D., 1981, University of Michigan. My thanks to Denis Binder, Nancy Schultz, and Parham Williams for insightful critique3 of an earlier draft, to Tom Bell for helpful conversations, and, most importantly, to Jetty Mafria Howe for aid and encouragement at all stages of the project. Of course, they do not necessarily agree with all of my views expressed in this Article. I have benefited in the preparation of this Article from a research grant provided by Chap- man University School of Law. 359 360 VANDERBILTLAWREVIEW [Vol. 54:2:359 IV. THE CASE AGAINST USING EQUALITY To CONSTRUCT THE CRIMINAL CLAUSES ............................................................ 418 A. Finding a Function for PrescriptiveEquality ......... 419 1. Equality Cannot Be an Explanatory End ..... 419 2. Equality Cannot Be an Intermediate Goal... 420 3. Equality Can Only Be a Rhetorical Device .. 424 B. The Problems With Using Equality as a Rhetorical Device Under the Criminal Clauses ........................ 425 1. Equality Rhetoric Cannot Serve as a Unifying Gloss on the Bill of Rights ............. 425 2. Equality Rhetoric Cannot Serve as a Gloss on Specific Criminal Clauses ....................... 428 V. RECONSTRUCTING THE CRIMINAL CLAUSES AND THEIR RELATIONSHIP WITH THE OPEN-ENDED CLAUSES ............... 433 A. An Alternative View of the Fifth and Sixth Amendments as They Apply to Police Interrogation of Suspects: Modifying the Warnings and Waiver R ules ...................................................................... 433 B. Rethinking the Eighth Amendment and Capital Sentencing: A Substantive Measure of Justice in the Use of the Death Penalty ................................... 438 C. ReconsideringAdministrative Searches Under the FourthAmendment: Substantive Measures of Reasonableness for Judging Governmental A ction ..................................................................... 444 VI. CONCLUSION ...................................................................... 447 During the three decades after Brown v. Board of Education,I particularly during the tenure of Chief Justice Warren, the Supreme Court demonstrated enthusiasm for pursuing social change based on the notion of equality.2 "People who are alike 1. Brown v. Bd. of Educ., 347 U.S. 483 (1954). 2. See ALExANDER BICKEL, THE SUPREME COURT AND THE IDEA OF PROGRESS 103 ('[A] broadly conceived egalitarianism was the main theme in the music to which the Warren Court marched."); PILIP B. KURLAND, POLITICS, THE CONSTITUTION, AND THE WARREN COURT 98 (1970) (asserting that the Warren Court's most significant activism "has been in the development of the concept of equality as a constitutional standard"); Ruth Bader Ginsburg, The Burger Court's Grapplingswith Sex Discrimination,in THE BURGER COURT; THE COUNTER-REVOLUTION THAT WASN'T 132 (Vincent Blasi ed., 1983) (contending that, while equality for women was "not on the agenda of the Warren Court," the performance of the Burger Court on this score was "striking"); Michael Kiarman, An Interpretive History of Modern Equal Protection, 90 MICH. L. REV. 213, 216-17 (1991) (asserting that the Warren Court espoused for the first time "the notion that racial classifications disadvantaging minorities are presumptively unconstitutional," "ex- panded equal protection to prohibit certain forms of wealth discrimination and infringements 2001] THE TROUBLING INFLUENCE OFEQUALITY 361 should be treated alike."3 On this idea, the Court declared an ex- panded array of state actions to violate the Equal Protection Clause in the Fourteenth Amendment 4 and enforced similar rulings against the federal government through the Due Process Clause in the Fifth Amendment. 5 Various criminally oriented clauses in the Bill of Rights6 also became vessels for equality mandates. After Brown, the Court ini- tially used the Equal Protection and Due Process Clauses to pursue equality in the criminal context.7 However, the Justices also soon began to pursue equality under several of the more narrowly worded, criminal provisions. For example, in the confessions area, the Court used the equality idea to expand suspect protections un- der the Sixth Amendment right to counsel." It then employed the concept to reach its famous Miranda holding under the Fifth Amendment privilege against self-incrimination. 9 The Court also declared that the Eighth Amendment calls for equality in the sen- tencing of capital offenders.10 The emphasis on equality substan- upon the franchise" and, most importantly, began to "transform[] equal protection from a check against deliberate governmental disadvantaging into an entitlement to particular government- guaranteed outcomes"); see also ROBERT H. BORE, SLOUCHING TOWARD GoMoRRAH 107 (1996) ("The list of egalitarian decisions [by the Warren Court] not warranted by law could be extended almost indefinitely