State Action and Its Discontents

By Sherry F. Colb In my Justia Verdict column for this week, I discuss the case of Perry v. New Hampshire, which the U.S. Supreme Court has agreed to hear this coming term. Perry presents the question whether police misconduct is indispensable to a Due Process claim for excluding eyewitness identification evidence that resulted from unduly suggestive surrounding circumstances. In other words, if the circumstances that surround the making of an identification are sufficiently suggestive to call into serious question the reliability and independence of an eyewitness's identification, does police innocence in those circumstances preclude a Due Process challenge to admissibility? The column discusses how answering "no" to this question might affect the admissibility of state witnesses' testimony more generally. In this post, I want to raise a distinct and more general question about state action that arises out of this case. In a decision widely considered the high-water mark of state-action doctrine, Shelley v. Kraemer, the U.S. Supreme Court held that a court's enforcement of a racially restrictive covenant violates the Fourteenth Amendment's Equal Protection Clause. This meant that if private parties to a property conveyance agreed among themselves not to convey the property to members of racial minorities, a court could not enforce that agreement without running afoul of the Constitution. What made the decision unusual was that governmental action is required to trigger application of the Fourteenth Amendment, and the only governmental action present in Shelley was a court's enforcement of the terms of a private agreement. This meant that a content-neutral approach to enforcing private agreements might nonetheless violate the Constitution in virtue of the terms that private parties had seen fit to include. Though some had high hopes that Shelley would usher in a loosening of the state action requirement, whereby private conduct might trigger constitutional protection with a little tweaking, this hope went unfulfilled. To give just one example from the criminal procedure context, in Colorado v. Connelly, the Supreme Court held that even if a suspect's confession was involuntary — coerced by his own command hallucinations — the government could nonetheless introduce the confession into evidence, over a Fifth Amendment objection, in the absence of governmental coercion. Introducing such a confession, then, would not sufficiently implicate the government to trigger application of the Constitution. The same would be true if a private person coerced a confession from another private person, even if the government subsequently introduced the confession at the latter's criminal trial. The mere fact of admitting evidence in a court of law thus does not convert prior private misconduct into state action that violates the Constitution. One could argue, however, as many have argued, that the state action doctrine is based on a fallacy, namely, that one can meaningfully distinguish between "private" and "public" conduct. A number of feminists, for example, have strongly challenged the state action doctrine, both legally and politically. The phrase "the personal is political," captures the gist of the feminist challenge: there is really no such thing as "private" action, because all behavior has political causes and ramification. Everything that happens takes place within the context of the society and governmental institutions in which the behavior is embedded. If a married man rapes his spouse, for example, he does so within a legal context in which spousal rape is treated as categorically less serious than stranger rape, a context that previously included a complete exemption from prosecution for husbands exercising what had been considered a legally protected prerogative. On this account, spousal rape and spousal violence more generally are institutionally supported forms of violence rather than freely chosen rogue acts of private misconduct. By enforcing some but not other prohibitions against violent action, the State bears responsibility for the foreseeable behavior that results. Because the State broadly regulates private behavior, its regulatory choices — whether affirmative or negative — play an important role in the individual conduct that results. What does all of this have to do with unreliable eyewitness identifications? One answer is that perhaps the courts should bear responsibility for admitting unreliable evidence against a criminal defendant, because courts often choose whether to admit or to exclude evidence. The courts are not passive receptacles of party evidence but rather active participants in determining which ingredients the jury will have in reaching its verdict. Furthermore, when innocent people find themselves convicted and incarcerated in a prison cell, the government will necessarily have cooperated in bringing about that predicament, whether or not police deliberately orchestrated a suggestive lineup or showup. The problem or promise of collapsing the public/private distinction, is that the government may bear responsibility for unjust consequences even when there is no trial or other official proceeding. When an individual with a history of violence commits a crime, for example, we might plausibly conclude that by failing to stop him, the government violated the rights of the individual's victims. Likewise, by excluding reliable, incriminating evidence at a prior criminal trial a court arguably participated in freeing a violent person whose subsequent violence may now be attributed to the government. This idea is hardly novel, as much public hostility to criminal procedure protections seems to reflect the sense that the government injures victims when it fails to do what is necessary to protect them from harm. From a liberal perspective, this idea is welcome in the case of rights to shelter, food, education, and other necessities that the government might provide. The Supreme Court rejected this vision in Deshaney v. Winnebago County. From a conservative perspective, by contrast, the broad approach to state action is far more welcome in considering the private people affected by criminal activity. The victims' rights movement can thus be understood as a logical consequence of loosening the state action requirement. Liberal thinkers typically view the notion of "victims' rights" in the criminal context as an oxymoron, because it is only a criminal defendant, not his victim, who has "rights" against the government (whether to a trial, a compensated defense attorney, or the exclusion of evidence obtained in violation the defendant's privacy). The victim, by contrast, suffered at the hands of a private actor and therefore has (or ought to have) no claims against the government. Without a demanding state action requirement, however, we can see that criminal activity generally and individual crimes in particular take place in a context in which the government decides how to distribute enforcement resources and whether and when to pursue prosecution. A person who falls victim to a crime has thus typically suffered not only because of what a private individual did to him, but also because of what the government failed to do, while doing other things, that facilitated commission of the crime. To recognize the link between collapsing state action and protecting victims' rights is not to praise or discredit a looser state action requirement in Perry v. New Hampshire or elsewhere. It is simply to acknowledge that limiting the scope of governmental responsibility will not always and inevitably inure to the benefit of criminal defendants.

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