Quasi-Affirmative Rights In Constitutional Criminal Procedure

Abstract

Constitutional criminal procedure is often seen as starkly libertarian, consisting exclusively or almost exclusively of negative rather than positive rights. But constitutional criminal procedure actually is replete with rights best understood as "quasi-affirmative" - affirmative conditions placed on actions that government cannot realistically be expected to forego. Although the traditional objections to affirmative rights also apply to quasi-affirmative rights, they apply less forcefully. This is particularly true in constitutional criminal procedure, where the pervasiveness of quasi-affirmative rights, the special severity of criminal penalties, and the reliance on evidentiary exclusion as a remedial device all make quasi-affirmative rights less objectionable than they may be elsewhere. Nonetheless, courts often fail to distinguish quasi-affirmative rights from affirmative rights. They appear to shy away from doctrinal paths in constitutional criminal procedure that seem to place any kind of affirmative obligation on government, even when the obligation in question is actually only quasi-affirmative. The result has been the underdevelopment of constitutional criminal procedure overall. This article presents four examples of quasi-affirmative rights in constitutional criminal procedure that courts have failed to develop, in each case largely because the right in question seems affirmative rather than negative. The first example involves the government's obligation to make provision for reasonably expeditious processing of warrant applications before claiming that "exigent circumstances" excused the failure to obtain a warrant in a particular case. The second concerns the government's duty to tape-record custodial interrogations of criminal suspects. The third has to do with the responsibility of police departments to promulgate rules reasonably constraining the discretion of individual officers in deciding whether and how to carry out searches and seizures. The fourth pertains to the obligation of the government to provide court-appointed counsel with some minimally adequate level of financial support. In each of these instances, judicial aversion to the proposed new right appears to have rested in significant part on an exaggerated sense of the jurisprudential difficulties it would raise. Recognizing the distinction between quasi-affirmative and affirmative rights may therefore make courts less reluctant to develop new quasi-affirmative rights in constitutional criminal procedure. It may also help courts to develop those rights in ways that minimize their dangers. The dangers are likely to be most effectively minimized by judicial strategies designed to promote ongoing dialog between the judiciary on the one hand and the political branches on the other. Two classes of such strategies seem particularly promising, and in fact are already in use in criminal procedure. The first consists of announcing rules that are in some sense "reversible" the by the political branches. The second relies on rules that, at least initially, require the government only to pay attention to a problem and to articulate the reasons for its response or lack thereof.