Structural Overdelegation in Criminal Procedure

By O'Rourke, Anthony | Journal of Criminal Law and Criminology, Spring 2013 | Go to article overview

Structural Overdelegation in Criminal Procedure


O'Rourke, Anthony, Journal of Criminal Law and Criminology


In function, if not inform, criminal procedure is a type of delegation. It requires courts to select constitutional objectives and to decide how much discretionary authority to allocate to law enforcement officials in order to implement those objectives. By recognizing this process for what it is, this Article identifies a previously unseen phenomenon that inheres in the structure of criminal procedure decisionmaking.

Criminal procedure's decisionmaking structure pressures the Supreme Court to delegate more discretionary authority to law enforcement officials than the Court's constitutional objectives can justify. By definition, this systematic "overdelegation" does not result from the Supreme Court's hostility to protecting criminal procedure rights. Instead, it arises from a set of institutional pressures that, in combination, differentiate criminal procedure from other forms of constitutional decisionmaking. By identifying the problem of structural overdelegation, this Article clears away much of the confusion that complicates normative debates about the Supreme Court's criminal procedure decisions. Why does the Supreme Court so frequently grant discretionary authority to law enforcement institutions that other observers find untrustworthy? How can one tell whether the Court has granted "too much" discretion to law enforcement officials, and what does that phrase even mean? By turning attention to criminal procedure 'S structure, this Article offers a framework for answering these questions, and for deepening our understanding of criminal procedure decisionmaking.

TABLE OF CONTENTS

INTRODUCTION
I. CRIMINAL PROCEDURE AND DELEGATION STRATEGY
     A. Criminal Procedure as Delegation
     B. What Do Courts Delegate?
II. OVERDELEGATION IN CRIMINAL PROCEDURE
     A. Defining Overdelegation
         1. Overestimating Uncertainty
         2. Underestimating Policy Resistance
     B. Identifying Overdelegation
     C. Descriptive Limits
III. OVERDELEGATION'S STRUCTURAL SOURCES
     A. Regulatory Complexity (and Single Institutionalism)
     B. Doctrinal Entrenchment Mechanisms
     C. Political Economy of Litigation
     D. Redistributive Rights
IV. OVERDELEGATION CYCLES
V. AVOIDING OVERDELEGATION
     A. Announcing Constitutional Objectives
     B. Deciding Whom to Regulate
     C. Order of Comparative Analysis
CONCLUSION

INTRODUCTION

Over the past few years, the Supreme Court has eliminated the Fourth Amendment exclusionary rule as a remedy for negligent policing, (1) allowed officers to resume questioning suspects (including incarcerated suspects) fourteen days after they invoke their Miranda rights, (2) given trial courts broad latitude to admit statements by mortally wounded witnesses under the "ongoing emergency" exception to the Confrontation Clause, (3) and declined to regulate the use of unreliable eyewitness testimony under circumstances where the police were not responsible for rendering it unreliable. (4) In each of these cases, the Court had to choose between imposing constitutional constraints on law enforcement officials and granting them the discretionary authority to go about their business without risking judicial sanction. And, in each of these cases (and many others), the Court chose discretion. (5) Why does the Supreme Court so often make this choice in criminal procedure cases? Is the choice "correct" with respect to whatever constitutional objective the Court is trying to achieve in a given case? If not, what can be done about it? This Article provides a framework that shows how deeply these questions are interrelated and suggests how they may be answered.

Specifically, this Article draws on scholarship from the social sciences and administrative law to defend two novel claims about the nature of criminal procedure decisionmaking. The first is that in function, if not in form, constitutional criminal procedure is a type of delegation. (6) When deciding a criminal procedure case, a court must select some constitutional objective, such as ensuring that officials comply with what the court determines to be their obligations under the Fourth Amendment without threatening their ability to engage in effective law enforcement. …

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