"The Unconstitutional Conditions Vacuum in Criminal Procedure"

The title of this post is the title of this notable new article now available via SSRN authored by Kay Levine, Jonathan Remy Nash and Robert A. Schapiro. Here is its abstract:

For more than a century the United States Supreme Court has applied the unconstitutional conditions doctrine across a variety of settings, scrutinizing government efforts to condition the tradeoff of rights for benefits in the speech, funding, and takings contexts, among others.  The Court has declined, however, to invoke the doctrine in the area of criminal procedure, where people accused of crime are often asked to — and typically do — surrender their constitutional rights under the Fourth, Fifth, and Sixth Amendments in return for some benefit.  Despite the Court’s insistence that the unconstitutional conditions doctrine applies broadly across the Bill of Rights, its jurisprudence demonstrates that the doctrine functions as a selective shield that offers no support for certain rightsholders.

We argue that the Court’s approach undermines vital rights, with especially harmful consequences for people who most need judicial protection.  Since individuals accused of crime are often extremely vulnerable to coercive government measures, the important safeguards offered by the unconstitutional conditions doctrine should be at their apex in the criminal procedure setting.  Indeed, lower federal courts and some state courts have applied the doctrine to criminal procedure issues, demonstrating the doctrine’s utility in this domain.  We conclude that the Supreme Court’s aversion to using the unconstitutional conditions doctrine in its criminal procedure docket rests not on a principled doctrinal distinction, but on a failure to take seriously the constitutional predicaments facing those charged with crimes.  In accordance with its obligation to render equal justice under law, the Court must apply the unconstitutional conditions doctrine in this most critical area.