Capers on Criminal Procedure and the Good Citizen

I. Bennett Capers (Brooklyn Law School) has posted Criminal Procedure and the Good Citizen (Columbia Law Review, Forthcoming) on SSRN. Here is the abstract:

There is an aspect of criminal procedure decisions that has for too long gone unnoticed, unrecognized, and unremarked upon. Embedded in the Supreme Court’s criminal procedure jurisprudence — at times hidden in plain sight, at other times hidden below the surface — are asides about what it means to be a “good citizen.” The good citizen, for example, is willing to aid the police, willingly waives their right to silence, and welcomes police surveillance. And this is just the start. Read between the lines, and the Court’s “citizenship talk” also dictates how a good citizen should behave, move, and even speak. “Criminal Procedure and the Good Citizen” surfaces this aspect of the Court’s criminal procedure decisions to explore a series of questions about the nature of power, participation, and citizenship today, especially with respect to the police.

These concerns alone should be reason enough to question the Court’s citizenship talk. But there is another concern as well. At this time when for so many individuals, the criminal justice system is their primary civics education, when so many criminal procedure opinions are also on a certain level race opinions, the Court’s citizenship talk may very well further inequality. This article addresses these concerns. And it takes a first step in imagining a space in which citizens would have the ability, without repercussions or recrimination, to talk back to the police, to ask why and how come, to assert their rights, to question and test the boundaries of the law, and to say “no.”