“Illegitimate Choices: A Minimalist(?) Approach to Consent and Waiver in Criminal Cases”

The title of this post is the title of this new paper authored by Christopher Slobogin and Kate Weisburd now available via SSRN. Here is its abstract:

Current doctrine justifies many government searches, interrogations, and deprivations of liberty on the ground that the target of the action “voluntarily” agreed to it or waived applicable rights.  The standard critiques of this doctrine — that these choices are often or always coerced, the result of an unconstitutional condition, or inherently shaped by race, gender, and class — have usually been given short shrift by the courts, leading one of us to question whether the practice of using consent and waiver to deprive someone of basic rights and liberties should be abolished. In the meantime, we jointly wondered if there is a more immediate “minimalist” path forward, drawing on the Supreme Court’s own jurisprudence. 

This article takes the position that in many situations the voluntariness of a person’s choice need not be an issue, because the option the government proffers to that person is legally illegitimate.  Specifically, the “illegitimate choice” test we propose would make concerns about the validity of a person’s choice legally irrelevant in three situations: (1) when Supreme Court caselaw, properly construed, has made it so; (2) when the benefit the government offers is premised on acceptance of a condition that is not narrowly tailored to a compelling interest; or (3) when the benefit the government offers is itself unconstitutional. This approach would call into question searches based on the third-party doctrine, promises of leniency during interrogations, many types of pretrial and post-conviction dispositional conditions, certain waivers associated with plea bargaining, some types of special needs searches, and consent searches conducted in the absence of suspicion. In all of these situations, the illegitimate choice test would avoid difficulties with determining whether a choice is coerced or voluntary, while still maintaining consent as a viable option at other criminal justice decision-points.