Vol. 13 No. 3 (March 2003)

THE FIFTH AMENDMENT: A COMPREHENSIVE APPROACH by Alfredo Garcia.  Greenwood Press, 2002.  234 pp.  $64.95 Hardcover.  ISBN 0-313-29685-5.

Reviewed by Peter J. Galie, Department of Political Science, Canisius College, galie@canisius.edu .

Alfredo Garcia (Professor of Law, St. Thomas University School of Law), in THE FIFTH AMENDMENT: A COMPREHENSIVE APPROACH has three objectives: 1) to correct the myopic identification of the Fifth Amendment with the self-incrimination clause; 2) to demonstrate that the two other critical clauses with an impact on the criminal process – the grand jury and  double jeopardy clauses – are historically and conceptually related, and that the interpretative glosses put on these clauses by the Supreme Court are unsatisfactory; and 3) to stimulate rethinking about the Fifth Amendment.  Why he does not consider the due process clause of the amendment as part of criminal procedure protections, and why he excluded it from his analysis are unclear.  Moreover the way in which various provisions of the Bill of Rights interrelate and support each other, either as a matter of history or theoretical deduction, can stretch beyond the clauses of the amendment.  Akhil Reed Amar notes the “connection between the First and Fifth Amendments implicated by grand jury reports and presentments” is “key” (Amar, p.861).  Likewise, the double jeopardy clause, which makes no explicit connection to juries, dovetails with the Sixth Amendment jury right (Amar, p.96).

Garcia’s examination of the history, scholarly commentary and court interpretations of each clause leads to the following propositions:

            The underlying or common thread in each is the axiom that the government must not overpower the individual in the criminal process. 

The history of each provides little guidance for clear understanding of the clause.  Indeed, the debate over the correct way to interpret constitutional provisions is, from an historical standpoint, an exercise in futility (pp.17-18), “tantamount to writing a novel: mere fiction” (pp.17-18).

ON SELF-INCRIMINATION: “at best what we can glean from the historical record is a fluid and perhaps ambiguous perception of just what the privilege meant” (p.18).

ON DOUBLE JEOPARDY: “neither its history nor development yields much consensus on its central meaning and scope.  From its beginning it has been plagued by inconsistency and ambiguity.”  The clause is “shrouded in a historical jurisprudential and conceptual abyss” (p.191) and is “largely unfathomable” (p.172); its jurisprudence, quoting Rehnquist, is a “veritable Sargasso Sea” (p.171).  Garcia is so taken with this metaphor he repeats it twelve times in one chapter.

ON THE GRAND JURY: “what the constitutional guarantee meant is difficult to discern from the record” (p.24); but the record does not confirm its “mythology” as a “bulwark of liberty” (p.130); its aims are “contradictory” (p.133).

However, these warnings on the limits of the historical record and the impossibility of correct constitutional interpretations do not prevent him from savaging the constitutional law developed on each of these provisions; nor from concluding that the Court’s interpretations of these provisions have failed to serve their underlying purpose.  Garcia appears to recognize how perilously close he is to doing what he claims cannot be done.  Thus, “perhaps it is unrealistic to expect the Court to…reconcile the grand jury’s accusatory and libertarian roles” (p.135).  “Given the fundamental contradictory functions assigned to the grand jury,…reconciliation…is not attainable” (p.151).  On the failure of the Court’s jurisprudence on double jeopardy: “Perhaps we should not place the blame squarely on Justice Rehnquist for failing to provide trial judges with a modicum of guidance in how to navigate the ‘Sargasso Sea’ of double jeopardy law” (p.182).  On self- incrimination and the failure of the Court’s Miranda-based jurisprudence: “We should not however castigate the Supreme Court for not providing a solution to an intractable problem” (p.46).

Nonetheless, the bulk of four of the five substantive chapters is devoted to doing just that.  The purpose might be to demonstrate that no solution is possible and that the enterprise of constitutional law is an exercise is futility, but he rejects this option. Instead, he claims we need this deconstruction of the Court’s jurisprudence so that the task of reconstruction based on a “coherent narrative” can begin.  Of course this narrative, as he readily concedes, will be a “necessary fiction” (p.221), a “story.”  That story is one that would involve reading the clauses to provide more protection for individuals against the “overwhelming power of the government” (p.x).  In short, the Court’s story does not provide enough protections for individuals and gives too much leeway to the government.  That is a proposition that reasonable people might support in some cases, but not in others.  In the absence of a definitive history and an incoherent jurisprudence, Garcia—along with most contemporary legal scholars—says, in effect, “let’s tell a story whose ending is rights-extending and ‘progressive,’ and then we can go to bed.”

He does provide one argument as to why his narrative is superior to that of the Court’s, viz., his narrative is a pragmatic, real world view of the criminal justice system, a system that reflects the “rough and tumble of the streets” (p.222).  Justices cannot do this because they are too far removed from the reality of the criminal justice system, and most academics have an “ivory tower” perspective.  This is a striking claim for a work that relies almost exclusively on legal history and doctrinal analysis, that cites few empirical studies, and that conjectures frequently about the impact or consequences of court rulings, but provides no data to support the author’s assertions.  In the one case where studies are mentioned, the impact of MIRANDA on police conduct, he concludes “the true effect of MIRANDA on confession rates is unknown and unknowable” (p.120, fn. 3).  Simultaneously, however, he claims that “it is naïve to contend that MIRANDA . . . hampers police from questioning suspects” (p.108).  But surely empirical questions need to be addressed.  How many confessions were admitted?  How many were rejected by courts?  How regularly do police refrain from behavior that would have been acceptable pre-MIRANDA?  These questions, crucial to any fair evaluation of MIRANDA, are not raised, let alone answered.  For that reason it is not clear to this reviewer what it means to offer a “real world understanding” of how the criminal justice system operates. 

Garcia’s strongest suit is his exposure of the incoherencies among the Court’s decisions in the three areas.  Even here, however, he may be asking too much.  What Reinhold Neibuhr (1944) once said of democracy can be said of the Court’s jurisprudence: it provides “proximate solutions to insoluble problems.”  Jurisprudence is a thicket, resulting from the necessity of balancing competing interests, a process that satisfies few and is easily critiqued for the inconsistencies such balancing inevitably creates.  It is infused with ideological perspectives and divisions, the result of historical accident, the changing composition of the Court and plain inertia.  None of these factors insulate the Court from criticism, nor do they support the view that the Court is a prisoner of them.  Nonetheless, they do provide us with the limits within which we should judge the Court’s jurisprudence.

Here are some strands of Garcia’s narrative: replace MIRANDA with the old ‘voluntariness” standard even though he admits that it is a fiction that “a confession by a criminal suspect can ever be a product of free will and intellect” (p.61), and that a confession cannot, in the true sense of the word, ever be voluntary (p.77).  Nor does this prevent him from concluding that “the Supreme Court’s MIRANDA decisions have rendered the concept of voluntary confession meaningless.”  Here he may mean the Court has rendered the notion meaningless, even on its own “non-true” sense of the word, but it surely makes one begin to scratch one’s head.  On the grand jury, though there is no specific recommendation, he does admonish the Court to make a “candid assessment of the federal grand jury’s true colors…take the mask off the venerable institution and expose its inherent weaknesses” (p.165).  Presumably this means abolishing the grand jury, because he earlier asserted that reconciling its two functions is an “unattainable goal.”  Perhaps he believes that such an exposure (“take the mask off”) will force the Congress to act.  Why not direct the plea to the Congress or the President, who share some responsibility in this area?  Over the last half century a number of blue ribbon commissions and organizations have called on the Congress and the states to reform the grand jury.  Increasingly impatient with inertia and deadlock in the political process, and/or frightened by the outcomes when action is taken, scholars and activists have become increasingly reliant on the courts to initiate reform.

Despite these reservations, this reviewer found the monograph provocative and informative.  The force of the analysis requires one to confront the problems created by the Court’s decisions and to begin the difficult process of re-assessment.

REFERENCES

Amar, Akhil Reed.  1998. THE BILL OF RIGHTS.  New Haven: Yale University Press.

Neibuhr, Reinhold. 1944. THE CHILDREN OF LIGHT AND THE CHILDREN OF DARKNESS. New York: Charles Scribner's & Sons.

CASE REFERENCES

MIRANDA v. ARIZONA, 384 US 436 (1966).

*********************************************************************
Copyright 2003 by the author, Peter J. Galie.