Second-Order Regulation of Law Enforcement

Abstract

This Article interrogates a critical, yet understudied, regulatory design choice the Supreme Court makes in each criminal case raising constitutional questions about law enforcement conduct: not what the Constitution requires but how to implement its requirements. In particular, the Court must decide whether to address its decision directly to rank-and-file officers or instead to political policy makers, such as legislators and police administrators, who in turn will regulate officers on the street. In the former, dominant modeltermed here first-order regulation-the Court tells officers precisely what they can and cannot do. In the latter model-second-order regulation-the principal objective instead is to enunciate constitutional values and create incentives for political policy makers to write the conduct rules. Framed differently, the Court, as INTRODUCTIONTwo police officers arrest a robbery suspect and drive him to the stationhouse. They orchestrate a lineup, and the lone eyewitness fingers the suspect as the robber. The accused maintains his innocence, but he is prosecuted and convicted on the basis of the eyewitness identification. On appeal, the defendant argues that the lineup procedure was suggestive and therefore violated due process. His conviction is affirmed but the U.S. Supreme Court grants certiorari. All nine Justices vote to reverse and overturn the conviction. As it sets out to generate an opinion, with the case's outcome resolved, the Court faces a critical, but understudied, question of regulatory design: To whom should its commands be addressed?One option is for the Court to speak directly to the arresting officers, identifying the impermissible aspects of the lineup procedure. Although pronounced in the context of an individual dispute, such a decision has obvious prospective regulatory consequences.1 Alternatively, the Court could aim its 1. For the view of criminal procedure decisions as substantive regulation of law enforcement officers and other state actors, see Carol S. Steiker, Counter-Revolution in Constitutional Criminal Procedure? Two Audiences, Two Answers, 94 MICH. L. REV. 2466, 2470(1996 William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 YALE L.J. 1, 12, 16-22 (1997); see also Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 HARV. L. REV. 1731, 1739(1991 ("[I]n the context of criminal procedure, the Warren Court's decisions . . . had a broad, regulatory quality difficult to assimilate . . . with a traditional conception of the judicial function as limited to deciding discrete disputes between particular parties." (footnote omitted)). 208CALIFORNIA LAW REVIEW [Vol. 103:205 commands at political policy makers-legislators and law enforcement administrators. Here it would enunciate the constitutional values at stake and create incentives for political actors to develop measures to safeguard those values, subject to judicial review. For example, the Court might require eyewit...

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