Testing the legitimacy of consent and waiver in criminal cases

Criminal suspects, defendants and offenders face many choices that affect their liberty, in situations ranging from searches of their property or data to interrogations and plea deals. Judicial doctrine considers these choices to be valid when they are made “voluntarily”– i.e., when the individual consents or agrees to a pat down, interview, plea, or surrender of information.

But determinations of when these types of choices are voluntary can vary and often disregard psychological pressure or lack of knowledge about the choice at hand. Scholars and justices who challenge these definitions of voluntariness typically argue that many of the choices made by those who are subjected to searches, criminal prosecution and sentencing are coerced, the result of an unconstitutional condition, or shaped by matters of race, gender or class. These arguments have largely been dismissed by the courts.

Taking a novel, constitutionally based stance on the issue, a new paper by Vanderbilt criminal law expert Christopher Slobogin and Kate Weisburd of UC Law San Francisco argues that, in numerous criminal settings, the voluntariness of an individual’s choice should no longer be relevant.

Instead, the authors propose an “illegitimate choice” test that identifies three categories of consents or waivers that should not validate state action, even if the choices are considered “voluntary.”

“Illegitimate Choices: A Minimalist(?) Approach to Consent and Waiver in Criminal Cases,” is published in the Washington University Law Review.

When a person’s choice is not relevant because of Supreme Court caselaw

In describing their first category, the authors cite several recent developments in constitutional jurisprudence that have rendered the matter of choice irrelevant in some settings, thus making questions of consent and waiver moot.

As one example of this development, they reference the Supreme Court’s decision in Carpenter v. United States (2018), where the government argued that police do not conduct a “search” for Fourth Amendment purposes when they access a person’s cell site location information from their phone company, because that information has been “voluntarily” surrendered to the company. Although there was significant precedent in support of that view, the Carpenter Court rejected it, explicitly holding that there is nothing “voluntary” about such a transaction.

Slobogin and Weisburd argue that, as a result of Carpenter, contentions that a warrant is not required to access information that has been “voluntarily” surrendered to a third party should no longer be valid.

“From now on these cases should be and, in our opinion, should always have been decided not by reference to whether people willingly give to third parties the information the government seeks but rather by assessing the amount and type of information that the police are seeking,” the paper argues.

When the benefit the government’s condition fails to pass applicable constitutional scrutiny

Second, Slobogin and Weisburd argue that consent is irrelevant when it is used to justify deprivations of liberty that would not be permitted by the Supreme Court’s demanding “strict scrutiny” analysis; they contend that “strict scrutiny is the appropriate framework” in these settings, “because physical liberty is the most fundamental of rights.”

This would mean, for instance, that the government could not condition release from prison on an offender’s agreement to be subject to suspicionless searches and seizures or condition a defendant’s plea deal on waiver of the right to exculpatory information unless the government can demonstrate arbitrary searches are necessary to protect the public (in the first example) or that appeal would undermine reliable determinations (in the second).

Instead, the authors stress, strict scrutiny “requires the government to act consistently with its goals,” and that government-proffered conditions of release or plea conditions be narrowly tailored to meet those goals, irrespective of whether the individual consents to them.

When the government’s proposed benefit is not constitutional

As an example of their final category, the paper offers a straightforward example: a police officer approaches a group of young, Black men standing on a street corner and asks them to turn out their waistbands and consent to a pat down, which they do.

While accusations of discriminatory conduct or coercion in such situations rarely succeed, the authors identify a stronger argument as to why the consents in this case are invalid. “The police have nothing legitimate to offer in exchange for consent,” they said.

In contrast to agreements to release or plea conditions, which can offer freedom or a reduced sentence, consent in a street stop situation provides the consentor with no benefit (except, perhaps, freedom from improper harassment). The Supreme Court has found that police are not entitled to stop and frisk people in the absence of reasonable suspicion, and suspicion cannot be based on a refusal to give consent.

“In the absence of reasonable suspicion,” the authors conclude, “the unconstitutionality of (the officer’s request) is evident. In that situation, the ‘voluntariness’ of a consent should be irrelevant, because even asking for consent is illegitimate.”

A minimalist approach

The paper ends with a discussion of the illegitimate choice test in the context of minimalism (minimizing the power of the police, prosecutors, and judges) and abolitionism (abolishing that power).

They frame their proposal as minimalist in nature, but one that does not “necessarily conflict with abolition theory,” because it would significantly shrink the power of law enforcement, prosecutors and judges without standing in the way of larger changes.

The authors concluded that, while “the two of us have different views on abolition,” they agree that consent and waiver options, as currently deployed, violate the Constitution and “further entrench social iniquities endemic to the criminal legal system.”

“Our proposal—regardless of how it is labeled or characterized—aims to address these problems,” said the authors.