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1359

FIFTH AMENDMENT

RIGHTS OF PERSONS

CONTENTS Page

Indictment by Grand Jury ........................................................................................................ 1361 Double Jeopardy ........................................................................................................................ 1367

Development and Scope ..................................................................................................... 1367 Reprosecution Following Mistrial ...................................................................................... 1373 Reprosecution Following Acquittal .................................................................................... 1377

Acquittal by Jury ......................................................................................................... 1378 Acquittal by the Trial Judge ...................................................................................... 1379 Trial Court Rulings Terminating Trial Before Verdict ............................................ 1380

Reprosecution Following Conviction ................................................................................. 1381 Reprosecution After Reversal on Defendant’s Appeal .............................................. 1381 Sentence Increases ...................................................................................................... 1384

‘‘For the Same Offence’’ ...................................................................................................... 1386 Legislative Discretion as to Multiple Sentences ....................................................... 1386 Successive Prosecutions for ‘‘The Same Offense’’ ..................................................... 1388 The ‘‘Same Transaction’’ Problem .............................................................................. 1390

Self-Incrimination ...................................................................................................................... 1392 Development and Scope ..................................................................................................... 1392 The Power to Compel Testimony and Disclosure ............................................................ 1403

Immunity ..................................................................................................................... 1403 Required Records Doctrine ......................................................................................... 1406 Reporting and Disclosure ............................................................................................ 1407

Confessions: Police Interrogation, Due Process, and Self-Incrimination ....................... 1411 The Common Law Rule .............................................................................................. 1412 McNabb-Mallory Doctrine .......................................................................................... 1413 State Confession Cases ............................................................................................... 1414 From the Voluntariness Standard to Miranda ......................................................... 1418 Miranda v. Arizona ..................................................................................................... 1420

The Operation of the Exclusionary Rule .......................................................................... 1431 Supreme Court Review ............................................................................................... 1431 Procedure in the Trial Courts .................................................................................... 1433

Due Process ................................................................................................................................ 1434 History and Scope ............................................................................................................... 1434

Scope of the Guaranty ................................................................................................. 1436 Procedural Due Process ..................................................................................................... 1438

Generally ...................................................................................................................... 1439 Administrative Proceedings: A Fair Hearing ............................................................ 1440 Aliens: Entry and Deportation ................................................................................... 1443 Judicial Review of Administrative Proceedings ........................................................ 1445

Substantive Due Process .................................................................................................... 1447 Discrimination ............................................................................................................. 1447 Congressional Police Measures .................................................................................. 1450 Congressional Regulation of Public Utilities ............................................................ 1451 Congressional Regulation of Railroads ...................................................................... 1452

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Due Process—Continued Substantive Due Process—Continued

Taxation ....................................................................................................................... 1453 Retroactive Taxes ........................................................................................................ 1454 Deprivation of Property: Retroactive Legislation ..................................................... 1456 Bankruptcy Legislation ............................................................................................... 1459 Right to Sue the Government ..................................................................................... 1460 Congressional Power to Abolish Common Law Judicial Actions ............................. 1460 Deprivation of Liberty: Economic Legislation ........................................................... 1461

National Eminent Domain Power ..................................................................................... 1461 Overview ...................................................................................................................... 1461 Public Use .................................................................................................................... 1463 Just Compensation ...................................................................................................... 1467

Interest .................................................................................................................. 1469 Rights for Which Compensation Must Be Made ............................................... 1469 Consequential Damages ...................................................................................... 1471 Enforcement of Right to Compensation ............................................................. 1472

When Property Is Taken ............................................................................................. 1473 Government Activity Not Directed at the Property .......................................... 1473 Navigable Waters ................................................................................................. 1474 Regulatory Takings .............................................................................................. 1475

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1 Morse, A Survey of the Grand Jury System, 10 ORE. L. REV. 101 (1931). 2 1 BERNARD SCHWARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 162,

166 (1971). The provision read: ‘‘That in all Cases Capital or Criminal there shall be a grand Inquest who shall first present the offence. . . .’’

RIGHTS OF PERSONS

FIFTH AMENDMENT

No person shall be held to answer for a capital, or other- wise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, with- out just compensation.

INDICTMENT BY GRAND JURY

The history of the grand jury is rooted in the common and civil law, extending back to Athens, pre-Norman England, and the As- size of Clarendon promulgated by Henry II. 1 The right seems to have been first mentioned in the colonies in the Charter of Lib- erties and Privileges of 1683, which was passed by the first assem- bly permitted to be elected in the colony of New York. 2 Included from the first in Madison’s introduced draft of the Bill of Rights, the provision elicited no recorded debate and no opposition. ‘‘The grand jury is an English institution, brought to this country by the early colonists and incorporated in the Constitution by the Found- ers. There is every reason to believe that our constitutional grand jury was intended to operate substantially like its English pro- genitor. The basic purpose of the English grand jury was to provide a fair method for instituting criminal proceedings against persons believed to have committed crimes. Grand jurors were selected from the body of the people and their work was not hampered by rigid procedural or evidential rules. In fact, grand jurors could act on their own knowledge and were free to make their presentments

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3 Costello v. United States, 350 U.S. 359, 362 (1956). ‘‘The grand jury is an inte- gral part of our constitutional heritage which was brought to this country with the common law. The Framers, most of them trained in the English law and traditions, accepted the grand jury as a basic guarantee of individual liberty; notwithstanding periodic criticism, much of which is superficial, overlooking relevant history, the grand jury continues to function as a barrier to reckless or unfounded charges . . . . Its historic office has been to provide a shield against arbitrary or oppressive ac- tion, by insuring that serious criminal accusations will be brought only upon the considered judgment of a representative body of citizens acting under oath and under judicial instruction and guidance.’’ United States v. Mandujano, 425 U.S. 564, 571 (1976) (plurality opinion). See id. at 589–91 (Justice Brennan concurring).

4 This provision applies only in federal courts and is not applicable to the States, either as an element of due process or as a direct command of the Fourteenth Amendment. Hurtado v. California, 110 U.S. 516 (1884); Palko v. Connecticut, 302 U.S. 319, 323 (1937); Alexander v. Louisiana, 405 U.S. 625, 633 (1972).

5 Witnesses are not entitled to have counsel present in the room. FED. R. CIV. P. 6(d). The validity of this restriction was asserted in dictum in In re Groban, 352 U.S. 330, 333 (1957), and inferentially accepted by the dissent in that case. Id. at 346–47 (Justice Black, distinguishing grand juries from the investigative entity be- fore the Court). The decision in Coleman v. Alabama, 399 U.S. 1 (1970), deeming the preliminary hearing a ‘‘critical stage of the prosecution’’ at which counsel must be provided, called this rule in question, inasmuch as the preliminary hearing and the grand jury both determine whether there is probable cause with regard to a sus- pect. See id. at 25 (Chief Justice Burger dissenting). In United States v. Mandujano, 425 U.S. 564, 581 (1976) (plurality opinion), Chief Justice Burger wrote: ‘‘Respond- ent was also informed that if he desired he could have the assistance of counsel, but that counsel could not be inside the grand jury room. That statement was plain- ly a correct recital of the law. No criminal proceedings had been instituted against respondent, hence the Sixth Amendment right to counsel had not come into play.’’ By emphasizing the point of institution of criminal proceedings, relevant to the right

or indictments on such information as they deemed satisfactory. Despite its broad power to institute criminal proceedings the grand jury grew in popular favor with the years. It acquired an independ- ence in England free from control by the Crown or judges. Its adop- tion in our Constitution as the sole method for preferring charges in serious criminal cases shows the high place it held as an instru- ment of justice. And in this country as in England of old the grand jury has convened as a body of laymen, free from technical rules, acting in secret, pledged to indict no one because of prejudice and to free no one because of special favor.’’ 3

The prescribed constitutional function of grand juries in federal courts 4 is to return criminal indictments, but the juries serve a considerably broader series of purposes as well. Principal among these is the investigative function, which is served through the fact that grand juries may summon witnesses by process and compel testimony and the production of evidence generally. Operating in secret, under the direction but not control of a prosecutor, not bound by many evidentiary and constitutional restrictions, such ju- ries may examine witnesses in the absence of their counsel and without informing them of the object of the investigation or the place of the witnesses in it. 5 The exclusionary rule is inapplicable

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1363AMENDMENT 5—RIGHTS OF PERSONS

of counsel at line-ups and the like, the Chief Justice not only reasserted the absence of a right to counsel in the room but also, despite his having referred to it, cast doubt upon the existence of any constitutional requirement that a grand jury wit- ness be permitted to consult with counsel out of the room, and, further, raised the implication that a witness or putative defendant unable to afford counsel would have no right to appointed counsel. Concurring, Justice Brennan argued that it was essential and constitutionally required for the protection of one’s constitutional rights that he have access to counsel, appointed if necessary, accepting the likeli- hood, without agreeing, that consultation outside the room would be adequate to preserve a witness’ rights, Id. at 602–09 (with Justice Marshall). Justices Stewart and Blackmun reserved judgment. Id. at 609. The dispute appears ripe for revis- iting.

6 United States v. Calandra, 414 U.S. 338 (1974). The Court has interpreted a provision of federal wiretap law, 18 U.S.C. § 2515, to prohibit utilization of unlawful wiretap information as a basis for questioning witnesses before grand juries. Gelbard v. United States, 408 U.S. 41 (1972).

7 ‘‘Of course, the grand jury’s subpoena is not unlimited. It may consider incom- petent evidence, but it may not itself violate a valid privilege, whether established by the Constitution, statutes, or the common law . . . . Although, for example, an indictment based on evidence obtained in violation of a defendant’s Fifth Amend- ment privilege is nevertheless valid . . . , the grand jury may not force a witness to answer questions in violation of that constitutional guarantee. . . . Similarly, a grand jury may not compel a person to produce books and papers that would incrim- inate him. . . . The grand jury is also without power to invade a legitimate privacy interest protected by the Fourth Amendment. A grand jury’s subpoena duces tecum will be disallowed if it is ‘far too sweeping in its terms to be regarded as rea- sonable under the Fourth Amendment.’ Hale v. Henkel, 201 U.S. 43, 76 (1906). Judi- cial supervision is properly exercised in such cases to prevent the wrong before it occurs.’’ United States v. Calandra, 414 U.S. 338, 346 (1974). See also United States v. Dionisio, 410 U.S. 1, 11–12 (1973). Grand juries must operate within the limits of the First Amendment and may not harass the exercise of speech and press rights. Branzburg v. Hayes, 408 U.S. 665, 707–08 (1972). Protection of Fourth Amendment interests is as extensive before the grand jury as before any investigative officers, Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920); Hale v. Henkel, 201 U.S. 43, 76–77 (1920), but not more so either. United States v. Dionisio, 410 U.S. 1 (1973) (subpoena to give voice exemplars); United States v. Mara, 410 U.S. 19 (1973) (handwriting exemplars). The Fifth Amendment’s self-incrimination clause must be respected. Blau v. United States, 340 U.S. 159 (1950); Hoffman v. United States, 341 U.S. 479 (1951). On common-law privileges, see Blau v. United States, 340 U.S. 332 (1951) (husband-wife privilege); Alexander v. United States, 138 U.S. 353 (1891) (attorney-client privilege). The traditional secrecy of grand jury pro- ceedings has been relaxed a degree to permit a limited discovery of testimony. Com- pare Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395 (1959), with Dennis v. United States, 384 U.S. 855 (1966). See Fed. R. Crim. P. 6(e) (secrecy require- ments and exceptions).

8 United States v. Washington, 431 U.S. 181 (1977). Because defendant when he appeared before the grand jury was warned of his rights to decline to answer ques-

in grand jury proceedings, with the result that a witness called be- fore a grand jury may be questioned on the basis of knowledge ob- tained through the use of illegally-seized evidence. 6 In thus allow- ing the use of evidence obtained in violation of the Fourth Amend- ment, the Court nonetheless restated the principle that, while free of many rules of evidence that bind trial courts, grand juries are not unrestrained by constitutional consideration. 7 A witness called before a grand jury is not entitled to be informed that he may be indicted for the offense under inquiry 8 and the commission of per-

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1364 AMENDMENT 5—RIGHTS OF PERSONS

tions on the basis of self-incrimination, the decision was framed in terms of those warnings, but the Court twice noted that it had not decided, and was not deciding, ‘‘whether any Fifth Amendment warnings whatever are constitutionally required for grand jury witnesses. . . .’’ Id. at 186, 190.

9 United States v. Mandujano, 425 U.S. 564 (1976); United States v. Wong, 431 U.S. 174 (1977). Mandujano had been told of his right to assert the privilege against self-incrimination, of the consequences of perjury, and of his right to counsel, but not to have counsel with him in the jury room. Chief Justice Burger and Justices White, Powell, and Rehnquist took the position that no Miranda warning was re- quired because there was no police custodial interrogation and that in any event commission of perjury was not excusable on the basis of lack of any warning. Jus- tices Brennan, Marshall, Stewart, and Blackmun agreed that whatever rights a grand jury witness had, perjury was punishable and not to be excused. Id. at 584, 609. Wong was assumed on appeal not to have understood the warnings given her and the opinion proceeds on the premise that absence of warnings altogether does not preclude a perjury prosecution.

10 United States v. Dionisio, 410 U.S. 1 (1973); United States v. Mara, 410 U.S. 19 (1973).

11 Dionisio, 410 U.S. at 9. 12 410 U.S. at 9–13. 13 410 U.S. at 13–15. The privacy rationale proceeds from Katz v. United States,

389 U.S. 347 (1967).

jury by a witness before the grand jury is punishable, irrespective of the nature of the warning given him when he appears and re- gardless of the fact that he may already be a putative defendant when he is called. 9

Of greater significance were two cases in which the Court held the Fourth Amendment to be inapplicable to grand jury subpoenas requiring named parties to give voice exemplars and handwriting samples to the grand jury for identification purposes. 10 According to the Court, the issue turned upon a two-tiered analysis— ‘‘wheth- er either the initial compulsion of the person to appear before the grand jury, or the subsequent directive to make a voice recording is an unreasonable ‘seizure’ within the meaning of the Fourth Amendment.’’ 11 First, a subpoena to appear was held not to be a seizure, because it entailed significantly less social and personal af- front than did an arrest or an investigative stop, and because every citizen has an obligation, which may be onerous at times, to appear and give whatever aid he may to a grand jury. 12 Second, the direc- tive to make a voice recording or to produce handwriting samples did not bring the Fourth Amendment into play because no one has any expectation of privacy in the characteristics of either his voice or his handwriting. 13 Inasmuch as the Fourth Amendment was in- applicable, there was no necessity for the government to make a preliminary showing of the reasonableness of the grand jury re- quests.

Besides indictments, grand juries may also issue reports which may indicate nonindictable misbehavior, mis- or malfeasance of

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1365AMENDMENT 5—RIGHTS OF PERSONS

14 The grand jury ‘‘is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of whether any particular individual will be found properly subject to an accusation of crime.’’ Blair v. United States, 250 U.S. 273, 281 (1919). On the reports function of the grand jury, see In re Grand Jury January, 1969, 315 F. Supp. 662 (D. Md. 1970), and Report of the January 1970 Grand Jury (Black Panther Shooting) (N.D. Ill., released May 15, 1970). Congress has now specifically authorized issuance of reports in cases concerning public officers and organized crime. 18 U.S.C. § 333.

15 Congress has required that in the selection of federal grand juries, as well as petit juries, random selection of a fair cross section of the community is to take place, and has provided a procedure for challenging discriminatory selection by mov- ing to dismiss the indictment. 28 U.S.C. §§ 1861–68. Racial discrimination in selec- tion of juries is constitutionally proscribed in both state and federal courts. See dis- cussion under ‘‘Juries,’’ infra.

16 Ex parte Wilson, 114 U.S. 417 (1885). 17 114 U.S. at 427. 18 Mackin v. United States, 117 U.S. 348, 352 (1886). 19 United States v. Moreland, 258 U.S. 433 (1922). 20 Ex parte Wilson, 114 U.S. 417, 426 (1885). 21 Wong Wing v. United States, 163 U.S. 228, 237 (1896). 22 Ex parte Wilson, 114 U.S. 417 (1885). 23 Mackin v. United States, 117 U.S. 348 (1886). 24 Parkinson v. United States, 121 U.S. 281 (1887). 25 United States v. DeWalt, 128 U.S. 393 (1888). 26 Ex parte Wilson, 114 U.S. 417, 426 (1885).

public officers, or other objectionable conduct. 14 Despite the vast power of grand juries, there is little in the way of judicial or legis- lative response designed to impose some supervisory restrictions on them. 15

Within the meaning of this article a crime is made ‘‘infamous’’ by the quality of the punishment which may be imposed. 16 ‘‘What punishments shall be considered as infamous may be affected by the changes of public opinion from one age to another.’’ 17 Imprison- ment in a state prison or penitentiary, with or without hard labor, 18 or imprisonment at hard labor in the workhouse of the District of Columbia, 19 falls within this category. The pivotal ques- tion is whether the offense is one for which the court is authorized to award such punishment; the sentence actually imposed is imma- terial. When an accused is in danger of being subjected to an infa- mous punishment if convicted, he has the right to insist that he shall not be put upon his trial, except on the accusation of a grand jury. 20 Thus, an act which authorized imprisonment at hard labor for one year, as well as deportation, of Chinese aliens found to be unlawfully within the United States, created an offense which could be tried only upon indictment. 21 Counterfeiting, 22 fraudulent alteration of poll books, 23 fraudulent voting, 24 and embezzle- ment, 25 have been declared to be infamous crimes. It is immaterial how Congress has classified the offense. 26 An act punishable by a fine of not more than $1,000 or imprisonment for not more than six

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27 Duke v. United States, 301 U.S. 492 (1937). 28 See Stirone v. United States, 361 U.S. 212 (1960), wherein a variation be-

tween pleading and proof was held to deprive petitioner of his right to be tried only upon charges presented in the indictment.

29 Ex parte Bain, 121 U.S. 1, 12 (1887). Ex parte Bain was overruled in United States v. Miller, 471 U.S. 130 (1985), to the extent that it held that a narrowing of an indictment is impermissible. Ex parte Bain was also overruled to the extent that it held that it held that a defective indictment was not just substantive error, but that it deprived a court of subject-matter jurisdiction over a case. United States v. Cotton, 122 S. Ct. 1781 (2002). While a defendant’s failure to challenge an error of substantive law at trial level may result in waiver of such issue for purpose of appeal, challenges to subject-matter jurisdiction may be made at any time. Thus, where a defendant failed to assert his right to a non-defective grand jury indict- ment, appellate review of the matter would limited to a ‘‘plain error’’ analysis. 122 S. Ct. at 1784-85.

30 United States v. Miller, 471 U.S. 130, 144 (1985). 31 Breese v. United States, 226 U.S. 1 (1912). 32 Costello v. United States, 350 U.S. 359 (1956); Lawn v. United States, 355

U.S. 339 (1958); United States v. Blue, 384 U.S. 251 (1966). Cf. Gelbard v. United States, 408 U.S. 41 (1972).

33 Johnson v. Sayre, 158 U.S. 109, 114 (1895). See also Lee v. Madigan, 358 U.S. 228, 232–35, 241 (1959).

months is a misdemeanor, which can be tried without indictment, even though the punishment exceeds that specified in the statutory definition of ‘‘petty offenses.’’ 27

A person can be tried only upon the indictment as found by the grand jury, and especially upon its language found in the charging part of the instrument. 28 A change in the indictment that does not narrow its scope deprives the court of the power to try the ac- cused. 29 While additions to offenses alleged in an indictment are prohibited, the Court has now ruled that it is permissible ‘‘to drop from an indictment those allegations that are unnecessary to an of- fense that is clearly contained within it,’’ as, e.g., a lesser included offense. 30 There being no constitutional requirement that an indict- ment be presented by a grand jury in a body, an indictment deliv- ered by the foreman in the absence of other grand jurors is valid. 31 If valid on its face, an indictment returned by a legally constituted, non-biased grand jury satisfies the requirement of the Fifth Amendment and is enough to call for a trial on the merits; it is not open to challenge on the ground that there was inadequate or in- competent evidence before the grand jury. 32

The protection of indictment by grand jury extends to all per- sons except those serving in the armed forces. All persons in the regular armed forces are subject to court martial rather than grand jury indictment or trial by jury. 33 The exception’s limiting words ‘‘when in actual service in time of war or public danger’’ apply only to members of the militia, not to members of the regular armed forces. In O’Callahan v. Parker, the Court in 1969 held that of- fenses that are not ‘‘service connected’’ may not be punished under

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34 395 U.S. 258 (1969); see also Relford v. Commandant, 401 U.S. 355 (1971) (of- fense committed on military base against persons lawfully on base was service con- nected). But courts-martial of civilian dependents and discharged servicemen have been barred. Id. See ‘‘Trial and Punishment of Offenses: Servicemen, Civilian Em- ployees, and Dependents’’ under Article I.

35 This clause confers power on Congress to ‘‘make rules for the government and regulation of the land and naval forces.’’

36 Solorio v. United States, 483 U.S. 435 (1987). A 5–4 majority favored over- ruling O’Callahan: Chief Justice Rehnquist’s opinion for the Court was joined by Justices White, Powell, O’Connor, and Scalia. Justice Stevens concurred in the judg- ment but thought it unnecessary to reexamine O’Callahan. Dissenting Justice Mar- shall, joined by Justices Brennan and Blackmun, thought the service connection rule justified by the language of the Fifth Amendment’s exception, based on the na- ture of cases (those ‘‘arising in the land or naval forces’’) rather than the status of defendants.

37 483 U.S. at 450–51. 38 Ex parte Quirin, 317 U.S. 1, 43, 44 (1942). 39 Green v. United States, 355 U.S. 184, 187–88 (1957). The passage is often ap-

provingly quoted by the Court. E.g., Crist v. Bretz, 437 U.S. 28, 35 (1978); United States v. DiFrancesco, 449 U.S. 117, 127–28 (1980). For a comprehensive effort to assess the purposes of application of the clause, see Westen & Drubel, Toward a General Theory of Double Jeopardy, 1978 SUP. CT. REV. 81.

military law, but instead must be tried in the civil courts in the jurisdiction where the acts took place. 34 This decision was over- ruled, however, in 1987, the Court emphasizing the ‘‘plain lan- guage’’ of Art. I, § 8, cl. 14, 35 and not directly addressing any pos- sible limitation stemming from the language of the Fifth Amend- ment. 36 ‘‘The requirements of the Constitution are not violated where . . . a court-martial is convened to try a serviceman who was a member of the armed services at the time of the offense charged.’’ 37 Even under the service connection rule, it was held that offenses against the laws of war, whether committed by citi- zens or by alien enemy belligerents, could be tried by a military commission. 38

DOUBLE JEOPARDY

Development and Scope

‘‘The constitutional prohibition against ‘double jeopardy’ was designed to protect an individual from being subjected to the haz- ards of trial and possible conviction more than once for an alleged offense. . . . The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged of- fense, thereby subjecting him to embarrassment, expense and or- deal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though in- nocent he may be found guilty.’’ 39 The concept of double jeopardy goes far back in history, but its development was uneven and its

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40 M. FRIEDLAND, DOUBLE JEOPARDY part 1 (1969); Crist v. Bretz, 437 U.S. 28, 32–36 (1978), and id. at 40 (Justice Powell dissenting); United States v. Wilson, 420 U.S. 332, 340 (1975).

41 J. SIGLER, DOUBLE JEOPARDY—THE DEVELOPMENT OF A LEGAL AND SOCIAL POLICY 21–27 (1969). The first bill of rights which expressly adopted a double jeop- ardy clause was the New Hampshire Constitution of 1784. ‘‘No subject shall be lia- ble to be tried, after an acquittal, for the same crime or offence.’’ Art. I, Sec. XCI, 4 F. Thorpe, The Federal and State Constitution, reprinted in H.R. DOC. NO. 357, 59th Congress, 2d Sess. 2455 (1909). A more comprehensive protection was in- cluded in the Pennsylvania Declaration of Rights of 1790, which had language al- most identical to the present Fifth Amendment provision. Id. at 3100.

42 1 ANNALS OF CONGRESS 434 (June 8, 1789). 43 Id. at 753. 44 2 BERNARD SCHWARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 1149,

1165 (1971). In Crist v. Bretz, 437 U.S. 28, 40 (1978) (dissenting), Justice Powell attributed to inadvertence the broadening of the ‘‘rubric’’ of double jeopardy to incor- porate the common law rule against dismissal of the jury prior to verdict, a question the majority passed over as being ‘‘of academic interest only.’’ Id. at 34 n.10.

45 302 U.S. 319 (1937).

meaning has varied. The English development, under the influence of Coke and Blackstone, came gradually to mean that a defendant at trial could plead former conviction or former acquittal as a spe- cial plea in bar to defeat the prosecution. 40 In this country, the common-law rule was in some cases limited to this rule and in other cases extended to bar a new trial even though the former trial had not concluded in either an acquittal or a conviction. The rule’s elevation to fundamental status by its inclusion in several state bills of rights following the Revolution continued the differing approaches. 41 Madison’s version of the guarantee as introduced in the House of Representatives read: ‘‘No person shall be subject, ex- cept in cases of impeachment, to more than one punishment or trial for the same offense.’’ 42 Opposition in the House proceeded on the proposition that the language could be construed to prohibit a second trial after a successful appeal by a defendant and would therefore either constitute a hazard to the public by freeing the guilty or, more likely, result in a detriment to defendants because appellate courts would be loath to reverse convictions if no new trial could follow, but a motion to strike ‘‘or trial’’ from the clause failed. 43 As approved by the Senate, however, and accepted by the House for referral to the States, the present language of the clause was inserted. 44

Throughout most of its history, this clause was binding only against the Federal Government. In Palko v. Connecticut, 45 the Court rejected an argument that the Fourteenth Amendment incor- porated all the provisions of the first eight Amendments as limita- tions on the States and enunciated the due process theory under which most of those Amendments do now apply to the States. Some guarantees in the Bill of Rights, Justice Cardozo wrote, were so

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46 302 U.S. at 325, 326. 47 302 U.S. at 328. 48 395 U.S. 784, 794–95 (1969). 49 Crist v. Bretz, 437 U.S. 28, 37–38 (1978). But see id. at 40 (Justices Powell

and Rehnquist and Chief Justice Burger dissenting) (standard governing States should be more relaxed).

50 The problem was recognized as early as Houston v. Moore, 18 U.S. (5 Wheat.) 1 (1820), and the rationale of the doctrine was confirmed within thirty years. Fox v. Ohio, 46 U.S. (5 How.) 410 (1847); United States v. Marigold, 50 U.S. (9 How.) 560 (1850); Moore v. Illinois, 55 U.S. (14 How.) 13 (1852).

51 Id. And see cases cited in Bartkus v. Illinois, 359 U.S. 121, 132 n.19 (1959), and Abbate v. United States, 359 U.S. 187, 192–93 (1959).

52 260 U.S. 377 (1922).

fundamental that they are ‘‘of the very essence of the scheme of or- dered liberty’’ and ‘‘neither liberty nor justice would exist if they were sacrificed.’’ 46 But the double jeopardy clause, like many other procedural rights of defendants, was not so fundamental; it could be absent and fair trials could still be had. Of course, a defendant’s due process rights, absent double jeopardy consideration per se, might be violated if the State ‘‘creat[ed] a hardship so acute and shocking as to be unendurable,’’ but that was not the case in Palko. 47 In Benton v. Maryland, 48 however, the Court concluded ‘‘that the double jeopardy prohibition . . . represents a fundamental ideal in our constitutional heritage. . . . Once it is decided that a particular Bill of Rights guarantee is ‘fundamental to the American scheme of justice,’ . . . the same constitutional standards apply against both the State and Federal Governments.’’ Therefore, the double jeopardy limitation now applies to both federal and state governments and state rules on double jeopardy, with regard to such matters as when jeopardy attaches, must be considered in the light of federal standards. 49

In a federal system, different units of government may have different interests to serve in the definition of crimes and the en- forcement of their laws, and where the different units have over- lapping jurisdictions a person may engage in conduct that will vio- late the laws of more than one unit. 50 Although the Court had long accepted in dictum the principle that prosecution by two govern- ments of the same defendant for the same conduct would not con- stitute double jeopardy, 51 it was not until United States v. Lanza 52 that the conviction in federal court of a person previously convicted in a state court for performing the same acts was sus- tained. ‘‘We have here two sovereignties, deriving power from dif- ferent sources, capable of dealing with the same subject-matter within the same territory . . . Each government in determining what shall be an offense against its peace and dignity is exercising

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53 260 U.S. at 382. See also Hebert v. Louisiana, 272 U.S. 312 (1924); Screws v. United States, 325 U.S. 91, 108 (1945); Jerome v. United States, 318 U.S. 101 (1943).

54 Benton v. Maryland, 395 U.S. 784 (1969), extended the clause to the States. 55 Reaffirmation of the doctrine against double jeopardy claims as to the Federal

Government and against due process claims as to the States occurred in Abbate v. United States, 359 U.S. 187 (1959), and Bartkus v. Illinois, 359 U.S. 121 (1959), both cases containing extensive discussion and policy analyses. The Justice Depart- ment follows a policy of generally not duplicating a state prosecution brought and carried out in good faith, see Petite v. United States, 361 U.S. 529, 531 (1960); Rinaldi v. United States, 434 U.S. 22 (1977), and several provisions of federal law forbid a federal prosecution following a state prosecution. E.g., 18 U.S.C.§§ 659, 660, 1992, 2117. The Brown Commission recommended a general statute to this effect, preserving discretion in federal authorities to proceed upon certification by the At- torney General that a United States interest would be unduly harmed if there were no federal prosecution. NATIONAL COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS, FINAL REPORT 707 (1971).

56 United States v. Wheeler, 435 U.S. 313 (1978) (dual sovereignty doctrine per- mits federal prosecution of an Indian for statutory rape following his plea of guilty in a tribal court to contributing to the delinquency of a minor, both charges involv- ing the same conduct; tribal law stemmed from the retained sovereignty of the tribe and did not flow from the Federal Government).

57 Grafton v. United States, 206 U.S. 333 (1907) (trial by military court-martial precluded subsequent trial in territorial court); Waller v. Florida, 397 U.S. 387 (1970) (trial by municipal court precluded trial for same offense by state court). It was assumed in an early case that refusal to answer questions before one House of Congress could be punished as a contempt by that body and by prosecution by the United States under a misdemeanor statute, In re Chapman, 166 U.S. 661, 672 (1897), but there had been no dual proceedings in that case and it seems highly un- likely that the case would now be followed. Cf. Colombo v. New York, 405 U.S. 9 (1972).

58 Heath v. Alabama, 474 U.S. 82 (1985) (defendant crossed state line in course of kidnap murder, was prosecuted for murder in both states).

its own sovereignty, not that of the other.’’ 53 The ‘‘dual sovereignty’’ doctrine is not only tied into the existence of two sets of laws often serving different federal-state purposes and the now overruled principle that the double jeopardy clause restricts only the national government and not the States, 54 but it also reflects practical con- siderations that undesirable consequences could follow an over- ruling of the doctrine. Thus, a State might preempt federal author- ity by first prosecuting and providing for a lenient sentence (as compared to the possible federal sentence) or acquitting defendants who had the sympathy of state authorities as against federal law enforcement. 55 The application of the clause to the States has therefore worked no change in the ‘‘dual sovereign’’ doctrine. 56 Of course, when in fact two different units of the government are sub- ject to the same sovereign, the double jeopardy clause does bar sep- arate prosecutions by them for the same offense. 57 The dual sov- ereignty doctrine has also been applied to permit successive pros- ecutions by two states for the same conduct. 58

The clause speaks of being put in ‘‘jeopardy of life or limb,’’ which as derived from the common law, generally referred to the

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59 Ex parte Lange, 85 U.S. (18 Wall.) 163, 169 (1874). The clause generally has no application in noncriminal proceedings. Helvering v. Mitchell, 303 U.S. 391 (1938).

60 The clause applies in juvenile court proceedings which are formally civil. Breed v. Jones, 421 U.S. 519 (1975). See also United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984); United States v. Halper, 490 U.S. 435 (1989) (civil penalty under the False Claims Act constitutes punishment if it is overwhelmingly disproportionate to compensating the government for its loss, and if it can be ex- plained only as serving retributive or deterrent purposes); Montana Dep’t of Rev- enue v. Kurth Ranch, 511 U.S. 767 (1994) (tax on possession of illegal drugs, ‘‘to be collected only after any state or federal fines or forfeitures have been satisfied,’’ constitutes punishment for purposes of double jeopardy). But see Seling v. Young, 531 U.S. 250 (2001) (a statute that has been held to be civil and not criminal in nature cannot be deemed punitive ‘‘as applied’’ to a single individual). The issue of whether a law is civil or punitive in nature is essentially the same for ex post facto and for double jeopardy analysis. 531 U.S. at 263.

61 United States v. Ursery, 518 U.S. 267 (1996) (forfeitures, pursuant to 19 U.S.C. § 981 and 21 U.S.C. § 881, of property used in drug and money laundering offenses, are not punitive). The Court in Ursery applied principles that had been set forth in Various Items of Personal Property v. United States, 282 U.S. 577 (1931) (forfeiture of distillery used in defrauding government of tax on spirits), and United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984) (forfeiture, pursuant to 18 U.S.C. § 924(d), of firearms ‘‘used or intended to be used in’’ firearms offenses). A two-part inquiry is followed. First, the Court inquires whether Congress intended the forfeiture proceeding to be civil or criminal. Then, if Congress intended that the proceeding be civil, the court determines whether there is nonetheless the ‘‘clearest proof’’ that the sanction is ‘‘so punitive’’ as to transform it into a criminal penalty. 89 Firearms, 465 U.S. at 366.

62 Kansas v. Hendricks, 521 U.S. 346, 369–70 (1997) (commitment under State’s Sexually Violent Predator Act).

63 Abney v. United States, 431 U.S. 651 (1977). 64 See United States v. DiFrancesco, 449 U.S. 117, 126–27 (1980) (citing cases).

possibility of capital punishment upon conviction, but it is now set- tled that the clause protects with regard ‘‘to every indictment or in- formation charging a party with a known and defined crime or mis- demeanor, whether at the common law or by statute.’’ 59 Despite the Clause’s literal language, it can apply as well to sanctions that are civil in form if they clearly are applied in a manner that con- stitutes ‘‘punishment.’’ 60 Ordinarily, however, civil in rem forfeiture proceedings may not be considered punitive for purposes of double jeopardy analysis. 61 and the same is true of civil commitment fol- lowing expiration of a prison term. 62

Because one prime purpose of the clause is the protection against the burden of multiple trials, a defendant who raises and loses a double jeopardy claim during pretrial or trial may imme- diately appeal the ruling, a rare exception to the general rule pro- hibiting appeals from nonfinal orders. 63

During the 1970s especially, the Court decided an uncommonly large number of cases raising double jeopardy claims. 64 Instead of the clarity that often emerges from intense consideration of a par- ticular issue, however, double jeopardy doctrine has descended into

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65 Burks v. United States, 437 U.S. 1, 9, 15 (1978). One result is instability in the law. Thus, Burks overruled, to the extent inconsistent, four cases decided be- tween 1950 and 1960, and United States v. Scott, 437 U.S. 82 (1978), overruled a case decided just three years earlier, United States v. Jenkins, 420 U.S. 358 (1975).

66 See Crist v. Bretz, 437 U.S. 28, 40 (1978) (dissenting opinion). Justice Powell, joined by Chief Justice Burger and Justice Rehnquist, argued that with the double jeopardy clause so interpreted the due process clause could be relied on to prevent prosecutorial abuse during the trial designed to abort the trial and obtain a second one. Id. at 50. All three have joined, indeed, in some instances, have authored, opin- ions adverting to the role of the double jeopardy clause in protecting against such prosecutorial abuse. E.g., United States v. Scott, 437 U.S. 82, 92–94 (1978); Oregon v. Kennedy, 456 U.S. 667 (1982) (but narrowing scope of concept).

67 United States v. Scott, 437 U.S. 82, 101 (1978) (dissenting opinion) (Justices Brennan, White, Marshall, and Stevens).

68 Thus, Justice Blackmun has enunciated positions recognizing a broad right of defendants much like the position of the latter three Justices, Crist v. Bretz, 437 U.S. 28, 38 (1978) (concurring), and he joined Justice Stevens’ concurrence in Or- egon v. Kennedy, 456 U.S. 667, 681 (1982), but he also joined the opinions in United States v. Scott, 437 U.S. 82 (1978), and Arizona v. Washington, 434 U.S. 497 (1978) (Justice Blackmun concurring only in the result).

a state of ‘‘confusion,’’ with the Court acknowledging that its deci- sions ‘‘can hardly be characterized as models of consistency and clarity.’’ 65 In large part, the re-evaluation of doctrine and principle has not resulted in the development of clear and consistent guide- lines because of the differing emphases of the Justices upon the purposes of the clause and the consequent shifting coalition of ma- jorities based on highly technical distinctions and individualistic fact patterns. Thus, some Justices have expressed the belief that the purpose of the clause is only to protect final judgments relating to culpability, either of acquittal or conviction, and that English common law rules designed to protect the defendant’s right to go to the first jury picked had early in our jurisprudence become con- fused with the double jeopardy clause. While they accept the present understanding, they do so as part of the Court’s super- intending of the federal courts and not because the understanding is part and parcel of the clause; in so doing, of course, they are like- ly to find more prosecutorial discretion in the trial process. 66 Oth- ers have expressed the view that the clause not only protects the integrity of final judgments but, more important, that it protects the accused against the strain and burden of multiple trials, which would also enhance the ability of government to convict. 67 Still other Justices have engaged in a form of balancing of defendants’ rights with society’s rights to determine when reprosecution should be permitted when a trial ends prior to a final judgment not hinged on the defendant’s culpability. 68 Thus, the basic area of disagree- ment, though far from the only one, centers on the trial from the attachment of jeopardy to the final judgment.

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69 The rule traces back to United States v. Perez, 22 U.S. (9 Wheat.) 579 (1824). See also Kepner v. United States, 195 U.S. 100 (1904); Downum v. United States, 372 U.S. 734 (1963) (trial terminated just after jury sworn but before any testimony taken). In Crist v. Bretz, 437 U.S. 28 (1978), the Court held this standard of the attachment of jeopardy was ‘‘at the core’’ of the clause and it therefore binds the States. But see id. at 40 (Justice Powell dissenting). An accused is not put in jeop- ardy by preliminary examination and discharge by the examining magistrate, Col- lins v. Loisel, 262 U.S. 426 (1923), by an indictment which is quashed, Taylor v. United States, 207 U.S. 120, 127 (1907), or by arraignment and pleading to the in- dictment. Bassing v. Cady, 208 U.S. 386, 391–92 (1908). A defendant may be tried after preliminary proceedings that present no risk of final conviction. E.g., Ludwig v. Massachusetts, 427 U.S. 618, 630–32 (1976) (conviction in prior summary pro- ceeding does not foreclose trial in a court of general jurisdiction, where defendant has absolute right to demand a trial de novo and thus set aside the first conviction); Swisher v. Brady, 438 U.S. 204 (1978) (double jeopardy not violated by procedure under which masters hear evidence and make preliminary recommendations to juve- nile court judge, who may confirm, modify, or remand).

70 Cf. United States v. Jorn, 400 U.S. 470 (1971); Downum v. United States, 372 U.S. 734 (1963). ‘‘Even if the first trial is not completed, a second prosecution may be grossly unfair. It increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be con- victed. The danger of such unfairness to the defendant exists whenever a trial is aborted before it is completed. Consequently, as a general rule, the prosecutor is en- titled to one, and only one, opportunity to require an accused to stand trial.’’ Arizona v. Washington, 434 U.S. 497, 503–05 (1978).

71 Wade v. Hunter, 336 U.S. 684, 689 (1949). 72 United States v. Jorn, 400 U.S. 470, 486 (1971) (plurality opinion). 73 Arizona v. Washington, 434 U.S. 497, 503–05 (1978); Crist v. Bretz, 437 U.S.

28, 35–36 (1978). See Westen & Drubel, Toward a General Theory of Double Jeop- ardy, 1978 SUP. CT. REV. 81, 86–97.

Reprosecution Following Mistrial

The common law generally required that the previous trial must have ended in a judgment, of conviction or acquittal, but the constitutional rule is that jeopardy attaches much earlier, in jury trials when the jury is sworn, and in trials before a judge without a jury, when the first evidence is presented. 69 Therefore, if after jeopardy attaches the trial is terminated for some reason, it may be that a second trial, even if the termination was erroneous, is barred. 70 The reasons the Court has given for fixing the attach- ment of jeopardy at a point prior to judgment and thus making some terminations of trials before judgment final insofar as the de- fendant is concerned is that a defendant has a ‘‘valued right to have his trial completed by a particular tribunal.’’ 71 The reason the defendant’s right is so ‘‘valued’’ is that he has a legitimate interest in completing the trial ‘‘once and for all’’ and ‘‘conclud[ing] his con- frontation with society,’’ 72 so as to be spared the expense and or- deal of repeated trials, the anxiety and insecurity of having to live with the possibility of conviction, and the possibility that the pros- ecution may strengthen its case with each try as it learns more of the evidence and of the nature of the defense. 73 These reasons both

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74 United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824). 75 Id.; Logan v. United States, 144 U.S. 263 (1892). 76 Simmons v. United States, 142 U.S. 148 (1891) (juror’s impartiality became

questionable during trial); Thompson v. United States, 155 U.S. 271 (1884) (dis- covery during trial that one of the jurors had served on the grand jury which in- dicted defendant and was therefore disqualified); Wade v. Hunter, 336 U.S. 684 (1949) (court-martial discharged because enemy advancing on site).

77 Illinois v. Somerville, 410 U.S. 458, 463 (1973). 78 410 U.S. at 464. 79 Downum v. United States, 372 U.S. 734 (1963).

inform the determination when jeopardy attaches and the evalua- tion of the permissibility of retrial depending upon the reason for a trial’s premature termination.

A mistrial may be the result of ‘‘manifest necessity,’’ 74 such as where, for example, the jury cannot reach a verdict 75 or cir- cumstances plainly prevent the continuation of the trial. 76 Answers become more difficult, however, when the doctrine of ‘‘manifest ne- cessity’’ has been called upon to justify a second trial following a mistrial granted by the trial judge because of some event within the prosecutor’s control or because of prosecutorial misconduct or because of error or abuse of discretion by the judge himself. There must ordinarily be a balancing of the defendant’s right in having the trial completed against the public interest in fair trials de- signed to end in just judgments. 77 Thus, when, after jeopardy at- tached, a mistrial was granted because of a defective indictment, the Court held that retrial was not barred; a trial judge ‘‘properly exercises his discretion’’ in cases in which an impartial verdict can- not be reached or in which a verdict on conviction would have to be reversed on appeal because of an obvious error. ‘‘If an error could make reversal on appeal a certainty, it would not serve ‘the ends of public justice’ to require that the Government proceed with its proof when, if it succeeded before the jury, it would automati- cally be stripped of that success by an appellate court.’’ 78 On the other hand, when, after jeopardy attached, a prosecutor success- fully moved for a mistrial because a key witness had inadvertently not been served and could not be found, the Court held a retrial barred, because the prosecutor knew prior to the selection and swearing of the jury that the witness was unavailable. 79 Although this case appeared to establish the principle that an error of the prosecutor or of the judge leading to a mistrial could not constitute a ‘‘manifest necessity’’ for terminating the trial, Somerville distin- guished and limited Downum to situations in which the error lends itself to prosecutorial manipulation, in being the sort of instance which the prosecutor could use to abort a trial that was not pro-

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80 Illinois v. Somerville, 410 U.S. 458, 464–65, 468–69 (1973). 81 434 U.S. 497 (1978). 82 ‘‘Manifest necessity’’ characterizes the burden the prosecutor must shoulder in

justifying retrial. 434 U.S. at 505–06. But ‘‘necessity’’ cannot be interpreted literally; it means rather a ‘‘high degree’’ of necessity, and some instances, such as hung ju- ries, easily meet that standard. Id. at 506–07. In a situation like that presented in this case, great deference must be paid to the trial judge’s decision because he was in the best position to determine the extent of the possible bias, having observed the jury’s response, and to respond by the course he deems best suited to deal with it. Id. at 510–14. Here, ‘‘the trial judge acted responsibly and deliberately, and ac- corded careful consideration to respondent’s interest in having the trial concluded in a single proceeding. [H]e exercised ‘sound discretion’. . . .’’ Id. at 516.

83 367 U.S. 364 (1961). See also United States v. Tateo, 377 U.S. 463 (1964) (re- prosecution permitted after the setting aside of a guilty plea found to be involuntary because of coercion by the trial judge).

ceeding successfully and to obtain a new trial in which his advan- tage would be increased. 80

Another kind of case arises when the prosecutor moves for mis- trial because of prejudicial misconduct by the defense. In Arizona v. Washington, 81 defense counsel in his opening statement made prejudicial comments about the prosecutor’s past conduct, and the prosecutor’s motion for a mistrial was granted over defendant’s ob- jections. The Court ruled that retrial was not barred by double jeopardy. Granting that in a strict, literal sense, mistrial was not ‘‘necessary’’ because the trial judge could have given limiting in- structions to the jury, the Court held that the highest degree of re- spect should be given to the trial judge’s evaluation of the likeli- hood of the impairment of the impartiality of one or more jurors. As long as support for a mistrial order can be found in the trial record, no specific statement of ‘‘manifest necessity’’ need be made by the trial judge. 82

Emphasis upon the trial judge’s discretion has an impact upon the cases in which it is the judge’s error, in granting sua sponte a mistrial or granting the prosecutor’s motion. The cases are in doc- trinal disarray. Thus, in Gori v. United States, 83 the Court per- mitted retrial of the defendant when the trial judge had, on his own motion and with no indication of the wishes of defense counsel, declared a mistrial because he thought the prosecutor’s line of questioning was intended to expose the defendant’s criminal record, which would have constituted prejudicial error. Although the Court thought the judge’s action was an abuse of discretion, it approved retrial on the conclusion that the judge’s decision had been taken for defendant’s benefit. This rationale was disapproved in the next case, in which the trial judge discharged the jury erroneously and in abuse of his discretion, because he disbelieved the prosecutor’s assurance that certain witnesses had been properly apprised of

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84 United States v. Jorn, 400 U.S. 470, 483 (1971). 85 400 U.S. at 485. The opinion of the Court was by a plurality of four, but two

other Justices joined it after first arguing that jurisdiction was lacking to hear the Government’s appeal.

86 Arizona v. Washington, 434 U.S. 497, 514, 515–16 (1978). See also Illinois v. Somerville, 410 U.S. 458, 462, 465–66, 469–71 (1973) (discussing Gori and Jorn.)

87 United States v. Jorn, 400 U.S. 470, 485 (1971) (plurality opinion). 88 United States v. Scott, 437 U.S. 82, 93 (1978). 89 424 U.S. 600 (1976). See also Lee v. United States, 432 U.S. 23 (1977) (de-

fendant’s motion to dismiss because the information was improperly drawn made after opening statement and renewed at close of evidence was functional equivalent of mistrial and when granted did not bar retrial, Court emphasizing that defendant by his timing brought about foreclosure of opportunity to stay before the same trial).

their constitutional rights. 84 Refusing to permit retrial, the Court observed that the ‘‘doctrine of manifest necessity stands as a com- mand to trial judges not to foreclose the defendant’s option [to go to the first jury and perhaps obtain an acquittal] until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the pro- ceedings.’’ 85 The later cases appear to accept Jorn as an example of a case where the trial judge ‘‘acts irrationally or irresponsibly.’’ But if the trial judge acts deliberately, giving prosecution and de- fense the opportunity to explain their positions, and according re- spect to defendant’s interest in concluding the matter before the one jury, then he is entitled to deference. This approach perhaps rehabilitates the result if not the reasoning in Gori and maintains the result and much of the reasoning of Jorn. 86

Of course, ‘‘a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defend- ant’s motion is necessitated by a prosecutorial or judicial error.’’ 87 ‘‘Such a motion by the defendant is deemed to be a deliberate elec- tion on his part to forgo his valued right to have his guilt or inno- cence determined before the first trier of fact.’’ 88 In United States v. Dinitz, 89 the trial judge had excluded defendant’s principal attor- ney for misbehavior and had then given defendant the option of re- cess while he appealed the exclusion, a mistrial, or continuation with an assistant defense counsel. Holding that the defendant could be retried after he chose a mistrial, the Court reasoned that, while the exclusion might have been in error, it was not done in bad faith to goad the defendant into requesting a mistrial or to prejudice his prospects for acquittal. The defendant’s choice, even though difficult, to terminate the trial and go on to a new trial should be respected and a new trial not barred. To hold otherwise would necessitate requiring the defendant to shoulder the burden and anxiety of proceeding to a probable conviction followed by an appeal, which if successful would lead to a new trial, and neither

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90 Compare United States v. Dinitz, 424 U.S. 600, 611 (1976), with United States v. Tateo, 377 U.S. 463, 468 n.3 (1964).

91 456 U.S. 667, 676 (1982). The Court thought a broader standard requiring an evaluation of whether acts of the prosecutor or the judge prejudiced the defendant would be unmanageable and would be counterproductive because courts would be loath to grant motions for mistrials knowing that reprosecution would be barred. Id. at 676–77. The defendant had moved for mistrial after the prosecutor had asked a key witness a prejudicial question. Four Justices concurred, noting that the question did not constitute overreaching or harassment and objecting both to the Court’s reaching the broader issue and to its narrowing the exception. Id. at 681.

92 United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977). 93 United States v. Scott, 437 U.S. 82, 91 (1978) (quoting Green v. United

States, 355 U.S. 184, 188 (1957)). For the conceptually related problem of trial for a ‘‘separate’’ offense arising out of the same ‘‘transaction,’’ see discussion under ‘‘The ‘Same Transaction’ Problem,’’ infra.

94 Burks v. United States, 437 U.S. 1, 16 (1978); Fong Foo v. United States, 369 U.S. 141, 143 (1962). For evaluation of those interests of the defendant that might support the absolute rule of finality, and rejection of all such interests save the right

the public interest nor defendant’s interests would thereby be served.

But the Court has also reserved the possibility that the defend- ant’s motion might be necessitated by prosecutorial or judicial over- reaching motivated by bad faith or undertaken to harass or preju- dice, and in those cases retrial would be barred. It was unclear what prosecutorial or judicial misconduct would constitute such overreaching, 90 but in Oregon v. Kennedy, 91 the Court adopted a narrow ‘‘intent’’ test, so that ‘‘[o]nly where the governmental con- duct in question is intended to ‘goad’ the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.’’ Therefore, ordinarily, a defendant who moves for or acqui- esces in a mistrial is bound by his decision and may be required to stand for retrial.

Reprosecution Following Acquittal

That a defendant may not be retried following an acquittal is ‘‘the most fundamental rule in the history of double jeopardy juris- prudence.’’ 92 ‘‘[T]he law attaches particular significance to an ac- quittal. To permit a second trial after an acquittal, however mis- taken the acquittal may have been, would present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that ‘even though innocent he may be found guilty.’’’ 93 While in other areas of double jeopardy doctrine consideration is given to the public-safety interest in hav- ing a criminal trial proceed to an error-free conclusion, no such bal- ancing of interests is permitted with respect to acquittals, ‘‘no mat- ter how erroneous,’’ no matter even if they were ‘‘egregiously erro- neous.’’ 94

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of the jury to acquit against the evidence and the trial judge’s ability to temper leg- islative rules with leniency, see Westen & Drubel, Toward a General Theory of Dou- ble Jeopardy, 1978 SUP. CT. REV. 81, 122–37.

95 195 U.S. 100 (1904). The case interpreted not the constitutional provision but a statutory provision extending double jeopardy protection to the Philippines. The Court has described the case, however, as correctly stating constitutional principles. See, e.g., United States v. Wilson, 420 U.S. 332, 346 n.15 (1975); United States v. DiFrancesco, 449 U.S. 117, 113 n.13 (1980).

96 In dissent, Justice Holmes, joined by three other Justices, propounded a the- ory of ‘‘continuing jeopardy,’’ so that until the case was finally concluded one way or another, through judgment of conviction or acquittal, and final appeal, there was no second jeopardy no matter how many times a defendant was tried. 195 U.S. at 134. The Court has numerous times rejected any concept of ‘‘continuing jeopardy.’’ E.g., Green v. United States, 355 U.S. 184, 192 (1957); United States v. Wilson, 420 U.S. 332, 351–53 (1975); Breed v. Jones, 421 U.S. 519, 533–35 (1975).

97 Palko v. Connecticut, 302 U.S. 319 (1937). Palko is no longer viable. Cf. Greene v. Massey, 437 U.S. 19 (1978).

98 The Criminal Appeals Act of 1907, 34 Stat. 1246, was ‘‘a failure . . . , a most unruly child that has not improved with age.’’ United States v. Sisson, 399 U.S. 267, 307 (1970). See also United States v. Oppenheimer, 242 U.S. 85 (1916); Fong Foo v. United States, 369 U.S. 141 (1962).

99 Title III of the Omnibus Crime Control Act, Pub. L. No. 91–644, 84 Stat. 1890, 18 U.S.C. § 3731. Congress intended to remove all statutory barriers to gov- ernmental appeal and to allow appeals whenever the Constitution would permit, so that interpretation of the statute requires constitutional interpretation as well. United States v. Wilson, 420 U.S. 332, 337 (1974). See Sanabria v. United States, 437 U.S. 54, 69 n.23 (1978), and id. at 78 (Justice Stevens concurring).

The acquittal being final, there is no governmental appeal con- stitutionally possible from such a judgment. This was firmly estab- lished in Kepner v. United States, 95 which arose under a Phil- ippines appeals system in which the appellate court could make an independent review of the record, set aside the trial judge’s deci- sion, and enter a judgment of conviction. 96 Previously, under the due process clause, there was no barrier to state provision for pros- ecutorial appeals from acquittals. 97 But there are instances in which the trial judge will dismiss the indictment or information without intending to acquit or in circumstances in which retrial would not be barred, and the prosecution, of course, has an interest in seeking on appeal to have errors corrected. Until 1971, however, the law providing for federal appeals was extremely difficult to apply and insulated from review many purportedly erroneous legal rulings, 98 but in that year Congress enacted a new statute permit- ting appeals in all criminal cases in which indictments are dis- missed, except in those cases in which the double jeopardy clause prohibits further prosecution. 99 In part because of the new law, the Court has dealt in recent years with a large number of problems in this area.

Acquittal by Jury.—Little or no controversy accompanies the rule that once a jury has acquitted a defendant, government may not, through appeal of the verdict or institution of a new prosecu-

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100 What constitutes a jury acquittal may occasionally be uncertain. In Schiro v. Farley, 510 U.S. 222 (1994), the Court ruled that a jury’s action in leaving the verdict sheet blank on all but one count did not amount to an acquittal on those counts, and that consequently conviction on the remaining count, alleged to be du- plicative of one of the blank counts, could not constitute double jeopardy. In any event, the Court added, no successive prosecution violative of double jeopardy could result from an initial sentencing proceeding in the course of an initial prosecution.

101 In United States v. Ball, 163 U.S. 662 (1896), three defendants were placed on trial, Ball was acquitted and the other two were convicted, the two appealed and obtained a reversal on the ground that the indictment had been defective, and all three were again tried and all three were convicted. Ball’s conviction was set aside as violating the clause; the trial court’s action was not void but only voidable, and Ball had taken no steps to void it while the Government could not take such action. Similarly, in Benton v. Maryland, 395 U.S. 784 (1969), the defendant was convicted of burglary but acquitted of larceny; the conviction was set aside on his appeal be- cause the jury had been unconstitutionally chosen. He was again tried and convicted of both burglary and larceny, but the larceny conviction was held to violate the dou- ble jeopardy clause. On the doctrine of ‘‘constructive acquittals’’ by conviction of a lesser included offense, see discussion infra under ‘‘Reprosecution After Reversal on Defendant’s Appeal.’’

102 United States v. Martin Linen Supply Co., 430 U.S. 564, 570–72 (1977); Sanabria v. United States, 437 U.S. 54, 63–65 (1978); Finch v. United States, 433 U.S. 676 (1977).

103 In Fong Foo v. United States, 369 U.S. 141 (1962), the Court acknowledged that the trial judge’s action in acquitting was ‘‘based upon an egregiously erroneous foundation,’’ but it was nonetheless final and could not be reviewed. Id. at 143.

104 United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977). 105 430 U.S. at 570–76. See also United States v. Scott, 437 U.S. 82, 87–92

(1978); Smalis v. Pennsylvania, 476 U.S. 140 (1986) (demurrer sustained on basis of insufficiency of evidence is acquittal).

106 437 U.S. 54 (1978).

tion, place the defendant on trial again. 100 Thus, the Court early held that, when the results of a trial are set aside because the first indictment was invalid or for some reason the trial’s results were voidable, a judgment of acquittal must nevertheless remain undis- turbed. 101

Acquittal by the Trial Judge.—Similarly, when a trial judge acquits a defendant, that action concludes the matter. 102 There is no possibility of retrial for the same offense. 103 But it may be dif- ficult at times to determine whether the trial judge’s action was in fact an acquittal or was a dismissal or some other action which the prosecution may be able to appeal. The question is ‘‘whether the ruling of the judge, whatever its label, actually represents a resolu- tion, correct or not, of some or all of the factual elements of the of- fense charged.’’ 104 Thus, an appeal by the Government was held barred in a case in which the deadlocked jury had been discharged, and the trial judge had granted the defendant’s motion for a judg- ment of acquittal under the appropriate federal rule, explicitly based on the judgment that the Government had not proved facts constituting the offense. 105 Even if, as happened in Sanabria v. United States, 106 the trial judge erroneously excludes evidence and

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107 In United States v. Wilson, 420 U.S. 332 (1975), following a jury verdict to convict, the trial judge granted defendant’s motion to dismiss on the ground of prej- udicial delay, not a judgment of acquittal; the Court permitted a government appeal because reversal would have resulted in reinstatement of the jury’s verdict, not in a retrial. In United States v. Jenkins, 420 U.S. 358, 365 (1975), the Court assumed, on the basis of Wilson, that a trial judge’s acquittal of a defendant following a jury conviction could be appealed by the government because, again, if the judge’s deci- sion were set aside there would be no further proceedings at trial. In overruling Jen- kins in United States v. Scott, 437 U.S. 82 (1978), the Court noted the assumption and itself assumed that a judgment of acquittal bars appeal only when a second trial would be necessitated by reversal. Id. at 91 n.7.

108 Serfass v. United States, 420 U.S. 377 (1975) (after request for jury trial but before attachment of jeopardy judge dismissed indictment because of evidentiary in- sufficiency; appeal allowed); United States v. Sanford, 429 U.S. 14 (1976) (judge granted mistrial after jury deadlock, then four months later dismissed indictment for insufficient evidence; appeal allowed, because granting mistrial had returned case to pretrial status).

109 See ‘‘Reprosecution After Reversal on Defendant’s Appeal,’’ supra. 110 See ‘‘Acquittal by the Trial Judge,’’ supra.

then acquits on the basis that the remaining evidence is insuffi- cient to convict, the judgment of acquittal produced thereby is final and unreviewable.

Some limited exceptions do exist with respect to the finality of trial judge acquittal. First, because a primary purpose of the due process clause is the prevention of successive trials and not of pros- ecution appeals per se, it is apparently the case that if the trial judge permits the case to go to the jury, which convicts, and the judge thereafter enters a judgment of acquittal, even one founded upon his belief that the evidence does not establish guilt, the pros- ecution may appeal, because the effect of a reversal would be not a new trial but reinstatement of the jury’s verdict and judgment thereon. 107 Second, if the trial judge enters or grants a motion of acquittal, even one based on the conclusion that the evidence is in- sufficient to convict, the prosecution may appeal if jeopardy had not yet attached in accordance with the federal standard. 108

Trial Court Rulings Terminating Trial Before Verdict.— If, after jeopardy attaches, a trial judge grants a motion for mis- trial, ordinarily the defendant is subject to retrial; 109 if, after jeop- ardy attaches, but before a jury conviction occurs, the trial judge acquits, perhaps on the basis that the prosecution has presented insufficient evidence or that the defendant has proved a requisite defense such as insanity or entrapment, the defendant is not sub- ject to retrial. 110 However, it may be that the trial judge will grant a motion to dismiss that is neither a mistrial nor an acquittal, but is instead a termination of the trial in defendant’s favor based on some decision not relating to his factual guilt or innocence, such as

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111 United States v. Wilson, 420 U.S. 332 (1975) (preindictment delay); United States v. Jenkins, 420 U.S. 358 (1975) (determination of law based on facts adduced at trial; ambiguous whether judge’s action was acquittal or dismissal); United States v. Scott, 437 U.S. 82 (1978) (preindictment delay).

112 See United States v. Scott, 437 U.S. 82, 84–86 (1978); United States v. Sisson, 399 U.S. 267, 291–96 (1970).

113 Cf. Lee v. United States, 432 U.S. 23 (1977). 114 United States v. Wilson, 420 U.S. 332 (1975) (after jury guilty verdict, trial

judge dismissed indictment on grounds of preindictment delay; appeal permissible because upon reversal all trial judge had to do was enter judgment on the jury’s verdict).

115 United States v. Jenkins, 420 U.S. 358 (1975) (after presentation of evidence in bench trial, judge dismissed indictment; appeal impermissible because if dis- missal was reversed there would have to be further proceedings in the trial court devoted to resolving factual issues going to elements of offense charged and result- ing in supplemental findings).

116 United States v. Scott, 437 U.S. 82 (1978) (at close of evidence, court dis- missed indictment for preindictment delay; ruling did not go to determination of guilt or innocence, but, like a mistrial, permitted further proceedings that would go to factual resolution of guilt or innocence). The Court thought that double jeopardy policies were resolvable by balancing the defendant’s interest in having the trial concluded in one proceeding against the government’s right to one complete oppor- tunity to convict those who have violated the law. The defendant chose to move to

prejudicial preindictment delay. 111 The prosecution may not simply begin a new trial but must seek first to appeal and overturn the dismissal, a course that was not open to federal prosecutors until enactment of the Omnibus Crime Control Act in 1971. 112 That law has resulted in tentative and uncertain rulings with respect to when such dismissals may be appealed and further proceedings di- rected. In the first place, it is unclear in many instances whether a judge’s ruling is a mistrial, a dismissal, or an acquittal. 113 In the second place, because the Justices have such differing views about the policies underlying the double jeopardy clause, determinations of which dismissals preclude appeals and further proceedings may result from shifting coalitions and from revised perspectives. Thus, the Court first fixed the line between permissible and impermis- sible appeals at the point at which further proceedings would have had to take place in the trial court if the dismissal were reversed. If the only thing that had to be done was to enter a judgment on a guilty verdict after reversal, appeal was constitutional and per- mitted under the statute; 114 if further proceedings, such as con- tinuation of the trial or some further factfinding, was necessary, appeal was not permitted. 115 Now, but by a close division of the Court, the determining factor is not whether further proceedings must be had but whether the action of the trial judge, whatever its label, correct or not, resolved some or all of the factual elements of the offense charged in defendant’s favor, whether, that is, the court made some determination related to the defendant’s factual guilt or innocence. 116 Such dismissals relating to guilt or innocence

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terminate the proceedings and, having made a voluntary choice, is bound to the con- sequences, including the obligation to continue in further proceedings. Id. at 95–101. The four dissenters would have followed Jenkins, and accused the Court of having adopted too restrictive a definition of acquittal. Their view is that the rule against retrials after acquittal does not, as the Court believed, ‘‘safeguard determination of innocence; rather, it is that a retrial following a final judgment for the accused nec- essarily threatens intolerable interference with the constitutional policy against multiple trials.’’ Id. at 101, 104 (Justices Brennan, White, Marshall, and Stevens). They would, therefore, treat dismissals as functional equivalents of acquittals, whenever further proceedings would be required after reversals.

117 North Carolina v. Pearce, 395 U.S. 711, 717 (1969). 118 Ex parte Lange, 85 U.S. (18 Wall.) 163 (1873). 119 A prosecutor dissatisfied with the punishment imposed upon the first convic-

tion might seek another trial in order to obtain a greater sentence. Cf. Ciucci v. Illi- nois, 356 U.S. 571 (1958) (under due process clause, double jeopardy clause not then applying to States).

120 United States v. Ball, 163 U.S. 662 (1896). The English rule precluded a new trial in these circumstances, and circuit Justice Story adopted that view. United States v. Gilbert, 25 Fed. Cas. 1287 (No. 15,204) (C.C.D.Mass. 1834). The history is briefly surveyed in Justice Frankfurter’s dissent in Green v. United States, 355 U.S. 184, 200–05 (1957).

121 Green v. United States, 355 U.S. 184, 197 (1957). The more recent cases con- tinue to reject a ‘‘waiver’’ theory. E.g., United States v. Dinitz, 424 U.S. 600, 609 n.11 (1976); United States v. Scott, 437 U.S. 82, 99 (1978).

122 Justice Holmes in dissent in Kepner v. United States, 195 U.S. 100, 134 (1904), rejected the ‘‘waiver’’ theory and propounded a theory of ‘‘continuing jeop- ardy,’’ which also continues to be rejected. See discussion, supra. In some cases, a

are functional equivalents of acquittals, whereas all other dismis- sals are functional equivalents of mistrials.

Reprosecution Following Conviction

A basic purpose of the double jeopardy clause is to protect a defendant ‘‘against a second prosecution for the same offense after conviction.’’ 117 It is ‘‘settled’’ that ‘‘no man can be twice lawfully punished for the same offense.’’ 118 Of course, the defendant’s inter- est in finality, which informs much of double jeopardy jurispru- dence, is quite attenuated following conviction, and he will most likely appeal, whereas the prosecution will ordinarily be content with its judgment. 119 The situation involving reprosecution ordi- narily arises, therefore, only in the context of successful defense ap- peals and controversies over punishment.

Reprosecution After Reversal on Defendant’s Appeal.— Generally, a defendant who is successful in having his conviction set aside on appeal may be tried again for the same offense, the assumption being made in the first case on the subject that, by ap- pealing, a defendant has ‘‘waived’’ his objection to further prosecu- tion by challenging the original conviction. 120 Although it has char- acterized the ‘‘waiver’’ theory as ‘‘totally unsound and indefen- sible,’’ 121 the Court has been hesitant in formulating a new theory in maintaining the practice. 122

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concept of ‘‘election’’ by the defendant has been suggested, United States v. Scott, 437 U.S. 82, 93 (1978); Jeffers v. United States, 432 U.S. 137, 152–54 (1977), but it is not clear how this formulation might differ from ‘‘waiver.’’ Chief Justice Burger has suggested that ‘‘probably a more satisfactory explanation’’ for permissibility of retrial in this situation ‘‘lies in analysis of the respective interests involved,’’ Breed v. Jones, 421 U.S. 519, 533–35 (1975), and a determination that on balance the in- terests of both prosecution and defense are well served by the rule. See United States v. Tateo, 377 U.S. 463, 466 (1964); Tibbs v. Florida, 457 U.S. 31, 39–40 (1982).

123 355 U.S. 184 (1957). 124 The decision necessarily overruled Trono v. United States, 199 U.S. 521

(1905), although the Court purported to distinguish the decision. Green v. United States, 355 U.S. 184, 194–97 (1957). See also Brantley v. Georgia, 217 U.S. 284 (1910) (no due process violation where defendant is convicted of higher offense on second trial).

125 See also Price v. Georgia, 398 U.S. 323 (1970). The defendant was tried for murder and was convicted of involuntary manslaughter. He obtained a reversal, was again tried for murder, and again convicted of involuntary manslaughter. Acknowl- edging that, after reversal, Price could have been tried for involuntary man- slaughter, the Court nonetheless reversed the second conviction because he had been subjected to the hazard of twice being tried for murder, in violation of the dou- ble jeopardy clause, and the effect on the jury of the murder charge being pressed could have prejudiced him to the extent of the second conviction. But cf. Morris v. Mathews, 475 U.S. 237 (1986) (inadequate showing of prejudice resulting from re- ducing jeopardy-barred conviction for aggravated murder to non-jeopardy-barred conviction for first degree murder). ‘‘To prevail in a case like this, the defendant must show that, but for the improper inclusion of the jeopardy-barred charge, the result of the proceeding probably would have been different.’’ Id. at 247.

126 437 U.S. 1 (1978).

An exception to full application of the retrial rule exists, how- ever, when defendant on trial for an offense is convicted of a lesser offense and succeeds in having that conviction set aside. Thus, in Green v. United States, 123 the defendant had been placed on trial for first degree murder but convicted of second degree murder; the Court held that, following reversal of that conviction, he could not be tried again for first degree murder, although he certainly could be for second degree murder, on the theory that the first verdict was an implicit acquittal of the first degree murder charge. 124 Even though the Court thought the jury’s action in the first trial was clearly erroneous, the double jeopardy clause required that the jury’s implicit acquittal be respected. 125

Still another exception arises out of appellate reversals ground- ed on evidentiary insufficiency. Thus, in Burks v. United States, 126 the appellate court set aside the defendant’s conviction on the basis that the prosecution had failed to rebut defendant’s proof of insan- ity. In directing that the defendant could not be retried, the Court observed that if the trial court ‘‘had so held in the first instance, as the reviewing court said it should have done, a judgment of ac- quittal would have been entered and, of course, petitioner could not be retried for the same offense. . . . [I]t should make no difference that the reviewing court, rather than the trial court, determined

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127 Id. at 10–11. See also Greene v. Massey, 437 U.S. 19 (1978) (remanding for determination whether appellate majority had reversed for insufficient evidence or whether some of the majority had based decision on trial error); Hudson v. Lou- isiana, 450 U.S. 40 (1981) (Burks applies where appellate court finds some but in- sufficient evidence adduced, not only where it finds no evidence). Burks was distin- guished in Justices of Boston Municipal Court v. Lydon, 466 U.S. 294 (1984), hold- ing that a defendant who had elected to undergo a bench trial with no appellate review but with right of trial de novo before a jury (and with appellate review avail- able) could not bar trial de novo and reverse his bench trial conviction by asserting that the conviction had been based on insufficient evidence. The two-tiered system in effect gave the defendant two chances at acquittal; under those circumstances jeopardy was not terminated by completion of the first entirely optional stage.

128 Tibbs v. Florida, 457 U.S. 31 (1982). The decision was 5-to-4, the dissent ar- guing that weight and insufficiency determinations should be given identical double jeopardy clause treatment. Id. at 47 (Justices White, Brennan, Marshall, and Black- mun).

129 Lockhart v. Nelson, 488 U.S. 33 (1988) (state may reprosecute under habit- ual offender statute even though evidence of a prior conviction was improperly ad- mitted; at retrial, state may attempt to establish other prior convictions as to which no proof was offered at prior trial).

130 Ex parte Lange, 85 U.S. (18 Wall.) 163, 173 (1874); North Carolina v. Pearce, 395 U.S. 711, 717 (1969).

131 Ex parte Lange, 85 U.S. (18 Wall.) 163 (1874).

the evidence to be insufficient.’’ 127 The policy underlying the clause of not allowing the prosecution to make repeated efforts to convict forecloses giving the prosecution another opportunity to supply evi- dence which it failed to muster in the first proceeding. On the other hand, if a reviewing court reverses a jury conviction because of its disagreement on the weight rather than the sufficiency of the evidence, retrial is permitted; the appellate court’s decision does not mean that acquittal was the only proper course, hence the def- erence required for acquittals is not merited. 128 Also, the Burks rule does not bar reprosecution following a reversal based on erro- neous admission of evidence, even if the remaining properly admit- ted evidence would be insufficient to convict. 129

Sentence Increases.—The double jeopardy clause protects against imposition of multiple punishment for the same offense. 130 The application of the principle leads, however, to a number of complexities. In a simple case, it was held that where a court inad- vertently imposed both a fine and imprisonment for a crime for which the law authorized one or the other but not both, it could not, after the fine had been paid and the defendant had entered his short term of confinement, recall the defendant and change its judgment by sentencing him to imprisonment only. 131 But the Court has held that the imposition of a sentence does not from the moment of imposition have the finality that a judgment of acquittal has. Thus, it has long been recognized that in the same term of court and before the defendant has begun serving the sentence the

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132 Bozza v. United States, 330 U.S. 160 (1947). See also Pollard v. United States, 352 U.S. 354, 359–60 (1957) (imposition of prison sentence two years after court imposed an invalid sentence of probation approved). Dicta in some cases had cast doubt on the constitutionality of the practice. United States v. Benz, 282 U.S. 304, 307 (1931). However, United States v. DiFrancesco, 449 U.S. 117, 133–36, 138– 39 (1980), upholding a statutory provision allowing the United States to appeal a sentence imposed on a ‘‘dangerous special offender,’’ removes any doubt on that score. The Court there reserved decision on whether the government may appeal a sentence that the defendant has already begun to serve.

133 North Carolina v. Pearce, 395 U.S. 711, 719–21 (1969). See also Chaffin v. Stynchcombe, 412 U.S. 17, 23–24 (1973). The principle of implicit acquittal of an of- fense drawn from Green v. United States, 355 U.S. 184 (1957), does not similarly apply to create an implicit acquittal of a higher sentence. Pearce does hold that a defendant must be credited with the time served against his new sentence. 395 U.S. at 717–19.

134 Bullington v. Missouri, 451 U.S. 430 (1981). Four Justices dissented. Id. at 447 (Justices Powell, White, Rehnquist, and Chief Justice Burger). The Court dis- approved Stroud v. United States, 251 U.S. 15 (1919), although formally distin- guishing it. Bullington was followed in Arizona v. Rumsey, 467 U.S. 203 (1984), also involving a separate sentencing proceeding in which a life imprisonment sentence amounted to an acquittal on imposition of the death penalty. Rumsey was decided by 7–2 vote, with only Justices White and Rehnquist dissenting. In Monge v. Cali- fornia, 524 U.S. 721 (1998), the Court refused to extend the ‘‘narrow’’ Bullington ex- ception outside the area of capital punishment.

135 United States v. DiFrancesco, 449 U.S. 117 (1980). Four Justices dissented. Id. at 143, 152 (Justices Brennan, White, Marshall, and Stevens).

court may recall him and increase his sentence. 132 Moreover, a de- fendant who is retried after he is successful in overturning his first conviction is not protected by the double jeopardy clause against re- ceiving a greater sentence upon his second conviction. 133 An excep- tion exists with respect to capital punishment, the Court having held that government may not again seek the death penalty on re- trial when on the first trial the jury had declined to impose a death sentence. 134

Applying and modifying these principles, the Court narrowly approved the constitutionality of a statutory provision for sen- tencing of ‘‘dangerous special offenders,’’ which authorized prosecu- tion appeals of sentences and permitted the appellate court to af- firm, reduce, or increase the sentence. 135 The Court held that the provision did not offend the double jeopardy clause. Sentences had never carried the finality that attached to acquittal, and its prece- dents indicated to the Court that imposition of a sentence less than the maximum was in no sense an ‘‘acquittal’’ of the higher sen- tence. Appeal resulted in no further trial or other proceedings to which a defendant might be subjected, only the imposition of a new sentence. An increase in a sentence would not constitute multiple punishment, the Court continued, inasmuch as it would be within the allowable sentence and the defendant could have no legitimate expectation of finality in the sentence as first given because the statutory scheme alerted him to the possibility of increase. Simi-

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136 Jones v. Thomas, 491 U.S. 376, 381–82 (1989). 137 United States v. Watts, 519 U.S. 148, 154 (1997) (relying on Witte v. United

States, 515 U.S. 389 (1995), and holding that a sentencing court may consider ear- lier conduct of which the defendant was acquitted, so long as that conduct is proved by a preponderance of the evidence). See also Almendarez-Torres v. United States, 523 U.S. 224 (1998) (Congress’ decision to treat recidivism as a sentencing factor does not violate due process); Monge v. California, 524 U.S. 721 (1998) (retrial is permissible following appellate holding of failure of proof relating to sentence en- hancement). Justice Scalia, whose dissent in Almendarez-Torres argued that there was constitutional doubt over whether recidivism factors that increase a maximum sentence must be treated as a separate offense for double jeopardy purposes (523 U.S. at 248), answered that question affirmatively in his dissent in Monge. 524 U.S. 740-41.

138 See discussion supra under ‘‘Development and Scope.’’

larly upheld as within the allowable range of punishment con- templated by the legislature was a remedy for invalid multiple punishments under consecutive sentences: a shorter felony convic- tion was vacated, and time served was credited to the life sentence imposed for felony-murder. Even though the first sentence had been commuted and hence fully satisfied at the time the trial court revised the second sentence, the resulting punishment was ‘‘no greater than the legislature intended,’’ hence there was no double jeopardy violation. 136

The Court is also quite deferential to legislative classification of recidivism sentencing enhancement factors as relating only to sentencing and as not constituting elements of an ‘‘offense’’ that must be proved beyond a reasonable doubt. Ordinarily, therefore, sentence enhancements cannot be construed as additional punish- ment for the previous offense, and the Double Jeopardy Clause is not implicated. ‘‘Sentencing enhancements do not punish a defend- ant for crimes for which he was not convicted, but rather increase his sentence because of the manner in which he committed his crime of conviction.’’ 137

‘‘For the Same Offence’’

Sometimes as difficult as determining when a defendant has been placed in jeopardy is determining whether he was placed in jeopardy for the same offense. As noted previously, the same con- duct may violate the laws of two different sovereigns, and a defend- ant may be proceeded against by both because each may have dif- ferent interests to serve. 138 The same conduct may transgress two or more different statutes, because laws reach lesser and greater parts of one item of conduct, or may violate the same statute more than once, as when one robs several people in a group at the same time.

Legislative Discretion as to Multiple Sentences.—It fre- quently happens that one activity of a criminal nature will violate

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139 There are essentially two kinds of situations here. There are ‘‘double-descrip- tion’’ cases in which criminal law contains more than one prohibition for conduct arising out of a single transaction. E.g., Gore v. United States, 357 U.S. 386, 392– 93 (1958) (one sale of narcotics resulted in three separate counts: (1) sale of drugs not in pursuance of a written order, (2) sale of drugs not in the original stamped package, and (3) sale of drugs with knowledge that they had been unlawfully im- ported). And there are ‘‘unit-of-prosecution’’ cases in which the same conduct may violate the same statutory prohibition more than once. E.g., Bell v. United States, 349 U.S. 81 (1955) (defendant who transported two women across state lines for an immoral purpose in one trip in same car indicted on two counts of violating Mann Act). See Westen & Drubel, Toward a General Theory of Double Jeopardy, 1978 SUP. CT. REV. 81, 111–22.

140 Albernaz v. United States, 450 U.S. 333, 343–44 (1981) (defendants convicted on separate counts of conspiracy to import marijuana and conspiracy to distribute marijuana, both charges relating to the same marijuana.) The concurrence objected that the clause does preclude multiple punishments for separate statutory offenses unless each requires proof of a fact that the others do not. Id. at 344. Inasmuch as the case involved separate offenses which met this test, Albernaz strictly speaking is not a square holding and previous dicta is otherwise, but Albernaz is well-consid- ered dicta in view of the positions of at least four of its Justices who have objected to the dicta in other cases suggesting a constitutional restraint by the clause. Whalen v. United States, 445 U.S. 684, 695, 696, 699 (1980) (Justices White, Black- mun, Rehnquist, and Chief Justice Burger).

141 Missouri v. Hunter, 459 U.S. 359 (1983) (separate offenses of ‘‘first degree robbery,’’ defined to include robbery under threat of violence, and ‘‘armed criminal action’’). Only Justices Marshall and Stevens dissented, arguing that the legislature should not be totally free to prescribe multiple punishment for the same conduct, and that the same rules should govern multiple prosecutions and multiple punish- ments.

142 United States v. Universal C.I.T. Corp., 344 U.S. 218, 221–22 (1952).

one or more laws or that one or more violations may be charged. 139 Although the question is not totally free of doubt, it appears that the double jeopardy clause does not limit the legislative power to split a single transaction into separate crimes so as to give the prosecution a choice of charges that may be tried in one proceeding, thereby making multiple punishments possible for essentially one transaction. 140 ‘‘Where a legislature specifically authorizes cumu- lative punishment under two statutes, regardless of whether those two statutes proscribe the ‘same’ conduct under Blockburger, a court’s task of statutory construction is at an end and . . . . the trial court or jury may impose cumulative punishment under such stat- utes in a single trial.’’ 141

The clause does, however, create a rule of construction, a pre- sumption against the judiciary imposing multiple punishments for the same transaction unless Congress has ‘‘spoken in language that is clear and definite’’ 142 to pronounce its intent that multiple pun- ishments indeed be imposed. The commonly used test in deter- mining whether Congress would have wanted to punish as separate offenses conduct occurring in the same transaction, absent other- wise clearly expressed intent, is the ‘‘same evidence’’ rule. The rule,

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143 284 U.S. 299, 304 (1932). This case itself was not a double jeopardy case, but it derived the rule from Gavieres v. United States, 220 U.S. 338, 342 (1911), which was a double jeopardy case. See also Carter v. McClaughry, 183 U.S. 365 (1902); Morgan v. Devine, 237 U.S. 632 (1915); Albrecht v. United States, 273 U.S. 1 (1927); Pinkerton v. United States, 328 U.S. 640 (1946); American Tobacco Co. v. United States, 328 U.S. 781 (1946); United States v. Michener, 331 U.S. 789 (1947); Pereira v. United States, 347 U.S. 1 (1954); Callanan v. United States, 364 U.S. 587 (1961).

144 357 U.S. 386 (1958). 145 See also Albernaz v. United States, 450 U.S. 333 (1981); Iannelli v. United

States, 420 U.S. 770 (1975) (defendant convicted on two counts, one of the sub- stantive offense, one of conspiracy to commit the substantive offense; defense raised variation of Blockburger test, Wharton’s Rule requiring that one may not be pun- ished for conspiracy to commit a crime when the nature of the crime necessitates participation of two or more persons for its commission; Court recognized Wharton’s Rule as a double-jeopardy inspired presumption of legislative intent but held that congressional intent in this case was ‘‘clear and unmistakable’’ that both offenses be punished separately).

146 United States v. Felix, 503 U.S. 378, 391 (1992). But cf. Rutledge v. United States, 517 U.S. 292 (1996) (21 U.S.C. § 846, prohibiting conspiracy to commit drug offenses, does not require proof of any fact that is not also a part of the continuing criminal enterprise offense under 21 U.S.C. § 848, so there are not two separate of- fenses).

147 Garrett v. United States, 471 U.S. 773 (1985) (‘‘continuing criminal enter- prise’’ is a separate offense under the Comprehensive Drug Abuse Prevention and Control Act of 1970).

148 445 U.S. 684 (1980).

announced in Blockburger v. United States, 143 ‘‘is that where the same act or transaction constitutes a violation of two distinct statu- tory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.’’ Thus, in Gore v. United States, 144 the Court held that defendant’s one act of selling nar- cotics had violated three distinct criminal statutes, each of which required proof of a fact not required by the others; prosecuting him on all three counts in the same proceeding was therefore permis- sible. 145 So too, the same evidence rule does not upset the ‘‘estab- lished doctrine’’ that, for double jeopardy purposes, ‘‘a conspiracy to commit a crime is a separate offense from the crime itself,’’ 146 or the related principle that Congress may prescribe that predicate of- fenses and ‘‘continuing criminal enterprise’’ are separate of- fenses. 147 On the other hand, in Whalen v. United States, 148 the Court determined that a defendant could not be separately pun- ished for rape and for killing the same victim in the perpetration of the rape, because it is not the case that each statute requires proof of a fact that the other does not, and no indication existed in the statutes and the legislative history that Congress wanted

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149 The Court reasoned that a conviction for killing in the course of rape could not be had without providing all of the elements of the offense of rape. See also Jef- fers v. United States, 432 U.S. 137 (1977) (no indication in legislative history Con- gress intended defendant to be prosecuted both for conspiring to distribute drugs and for distributing drugs in concert with five or more persons); Simpson v. United States, 435 U.S. 6 (1978) (defendant improperly prosecuted both for committing bank robbery with a firearm and for using a firearm to commit a felony); Bell v. United States, 349 U.S. 81 (1955) (simultaneous transportation of two women across state lines for immoral purposes one violation of Mann Act rather than two).

150 United States v. Broce, 488 U.S. 563 (1989) (defendant who pled guilty to two separate conspiracy counts is barred from collateral attack alleging that in fact there was only one conspiracy and that double jeopardy applied).

151 See Grady v. Corbin, 495 U.S. 508, 518–19 (1990). 152 432 U.S. 161 (1977). Cf. In re Nielson, 131 U.S. 176 (1889) (prosecution of

Mormon for adultery held impermissible following his conviction for cohabiting with more than one woman, even though second prosecution required proof of an addi- tional fact—that he was married to another woman).

153 See also Harris v. Oklahoma, 433 U.S. 682 (1977) (defendant who had been convicted of felony murder for participating in a store robbery with another person who shot a store clerk could not be prosecuted for robbing the store, since store rob- bery was a lesser-included crime in the offense of felony murder).

154 Illinois v. Vitale, 447 U.S. 410 (1980).

the separate offenses punished. 149 In this as in other areas, a guilty plea ordinarily precludes collateral attack. 150

Successive Prosecutions for ‘‘the Same Offense’’.—Succes- sive prosecutions raise fundamental double jeopardy concerns ex- tending beyond those raised by enhanced and multiple punish- ments. It is more burdensome for a defendant to face charges in separate proceedings, and if those proceedings are strung out over a lengthy period the defendant is forced to live in a continuing state of uncertainty. At the same time, multiple prosecutions allow the state to hone its trial strategies through successive attempts at conviction. 151 In Brown v. Ohio, 152 the Court, apparently for the first time, applied the same evidence test to bar successive prosecu- tions in state court for different statutory offenses involving the same conduct. The defendant had been convicted of ‘‘joyriding,’’ de- fined as operating a motor vehicle without the owner’s consent, and was then prosecuted and convicted of stealing the same automobile. Because the state courts had conceded that joyriding was a lesser included offense of auto theft, the Court observed that each offense required the same proof and for double jeopardy purposes met the Blockburger test. The second conviction was overturned. 153 Applica- tion of the same principles resulted in a holding that a prior convic- tion of failing to reduce speed to avoid an accident did not preclude a second trial for involuntary manslaughter, inasmuch as failing to reduce speed was not a necessary element of the statutory offense of manslaughter, unless the prosecution in the second trial had to prove failing to reduce speed to establish this particular offense. 154 In 1990, the Court modified the Brown approach, stating that the

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155 Grady v. Corbin, 495 U.S. 508 (1990) (holding that the state could not pros- ecute a traffic offender for negligent homicide because it would attempt to prove conduct for which the defendant had already been prosecuted—driving while intoxi- cated and failure to keep to the right of the median). A subsequent prosecution is barred, the Court explained, if the government, to establish an essential element of an offense, will prove conduct that constitutes an offense for which the defendant has already been prosecuted. Id. at 521.

156 United States v. Dixon, 509 U.S. 688, 709 (1993) (applying Blockburger test to determine whether prosecution for a crime, following conviction for criminal con- tempt for violation of a court order prohibiting that crime, constitutes double jeop- ardy).

157 The Court suggested that if the legislature had provided that joyriding is a separate offense for each day the vehicle is operated without the owner’s consent, so that the two indictments each specifying a different date on which the offense occurred would have required different proof, the result might have been different, but this, of course, met the Blockburger problem. Brown v. Ohio, 432 U.S. 161, 169 n.8 (1977). The Court also suggested that an exception might be permitted where the State is unable to proceed on the more serious charge at the outset because the facts necessary to sustain that charge had not occurred or had not been discovered. Id. at 169 n.7. See also Jeffers v. United States, 432 U.S. 137, 150–54 (1977) (plu- rality opinion) (exception where defendant elects separate trials); Ohio v. Johnson, 467 U.S. 493 (1984) (trial court’s acceptance of guilty plea to lesser included offense and dismissal of remaining charges over prosecution’s objections does not bar subse- quent prosecution on those ‘‘remaining’’ counts).

158 United States v. Felix, 503 U.S. 378, 389 (1992). The fact that Felix con- stituted a ‘‘large exception’’ to Grady was one of the reasons the Court cited in over- ruling Grady. United States v. Dixon, 509 U.S. 688, 709–10 (1993).

159 Witte v. United States, 515 U.S. 389 (1995) (consideration of defendant’s al- leged cocaine dealings in determining sentence for marijuana offenses does not bar subsequent prosecution on cocaine charges).

160 Monge v. California, 524 U.S. 721, 728 (1998).

appropriate focus is on same conduct rather than same evidence. 155 That interpretation held sway only three years, however, before being repudiated as ‘‘wrong in principle [and] unstable in applica- tion.’’ 156 The Brown Court had noted some limitations applicable to its holding, 157 and more have emerged subsequently. Principles ap- propriate in the ‘‘classically simple’’ lesser-included-offense and re- lated situations are not readily transposible to ‘‘multilayered con- duct’’ governed by the law of conspiracy and continuing criminal enterprise, and it remains the law that ‘‘a substantive crime and a conspiracy to commit that crime are not the ‘same offense’ for double jeopardy purposes.’’ 158 For double jeopardy purposes, a de- fendant is ‘‘punished . . . only for the offense of which [he] is con- victed’’; a later prosecution or later punishment is not barred sim- ply because the underlying criminal activity has been considered at sentencing for a different offense. 159 Similarly, recidivism-based sentence enhancement does not constitute multiple punishment for the ‘‘same’’ prior offense, but instead is a stiffened penalty for the later crime. 160

The ‘‘Same Transaction’’ Problem.—The same conduct may also give rise to multiple offenses in a way that would satisfy the

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161 356 U.S. 464 (1958). See also Ciucci v. Illinois, 356 U.S. 571 (1958). 162 397 U.S. 436 (1970). 163 ‘‘‘Collateral estoppel’ is an awkward phrase . . . [which] means simply that

when an issue of ultimate fact has once been determined by a final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.’’ Id. at 443. First developed in civil litigation, the doctrine was applied in a criminal case in United States v. Oppenheimer, 242 U.S. 85 (1916). See also Sealfon v. United States, 332 U.S. 575 (1948).

164 Ashe v. Swenson, 397 U.S. 436, 466 (1970). See also Harris v. Washington, 404 U.S. 55 (1971); Turner v. Arkansas, 407 U.S. 366 (1972). Cf. Dowling v. United States, 493 U.S. 342 (1990), in which the Court concluded that the defendant’s pres- ence at an earlier crime for which he had been acquitted had not necessarily been decided in his acquittal. Dowling is distinguishable from Ashe, however, because in Dowling the evidence relating to the first conviction was not a necessary element of the second offense.

165 Ashe v. Swenson, 397 U.S. 436, 448 (1970) (Justices Brennan, Douglas, and Marshall concurring). Justices Brennan and Marshall adhered to their position in Brown v. Ohio, 432 U.S. 161, 170 (1977) (concurring); and Thompson v. Oklahoma, 429 U.S. 1053 (1977) (dissenting from denial of certiorari).

166 Garrett v. United States, 471 U.S. 773, 790 (1985). Earlier, the approach had been rejected by Chief Justice Burger in Ashe v. Swenson, 397 U.S. 436, 468 (1970)

Blockburger test if that conduct victimizes two or more individuals, and therefore constitutes a separate offense as to each of them. In Hoag v. New Jersey, 161 before the double jeopardy clause was ap- plied to the States, the Court found no due process problem in suc- cessive trials arising out of a tavern hold-up in which five cus- tomers were robbed. Ashe v. Swenson, 162 however, presented the Court with the Hoag fact situation directly under the double jeop- ardy clause. The defendant had been acquitted at trial of robbing one player in a poker game; the defense offered no testimony and did not contest evidence that a robbery had taken place and that each of the players had lost money. A second trial was held on a charge that the defendant had robbed a second of the seven poker players, and on the basis of stronger identification testimony the defendant was convicted. Reversing the conviction, the Court held that the doctrine of collateral estoppel 163 was a constitutional rule made applicable to the States through the double jeopardy clause. Because the only basis upon which the jury could have acquitted the defendant at his first trial was a finding that he was not present at the robbery, hence was not one of the robbers, the State could not relitigate that issue; with that issue settled, there could be no conviction. 164 Several Justices would have gone further and required a compulsory joinder of all charges against a defendant growing out of a single criminal act, occurrence, episode, or trans- action, except where a crime is not discovered until prosecution arising from the same transaction has begun or where the same ju- risdiction does not have cognizance of all the crimes. 165 But the Court has ‘‘steadfastly refused to adopt the ‘single transaction’ view of the Double Jeopardy Clause.’’ 166

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(dissenting), by him and Justice Blackmun in Harris v. Washington, 404 U.S. 55, 57 (1971) (dissenting), and, perhaps, by Justice Rehnquist in Turner v. Arkansas, 407 U.S. 366, 368 (1972) (dissenting).

167 Maguire, Attack of the Common Lawyers on the Oath Ex Officio as Adminis- tered in the Ecclesiastical Courts in England, in ESSAYS IN HISTORY AND POLITICAL THEORY IN HONOR OF CHARLES HOWARD MCILWAIN 199 (C. Wittke ed., 1936).

168 The traditional historical account is 8 J. WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE § 2250 (J. McNaughton rev. 1961), but more recent historical studies have indicated that Dean Wigmore was too grudging of the privilege. LEONARD LEVY, ORIGINS OF THE FIFTH AMENDMENT: THE RIGHT AGAINST SELF-INCRIMINATION (1968); Morgan, The Privilege Against Self-Incrimination, 34 MINN. L. REV. 1 (1949).

169 3 F. Thorpe, The Federal and State Constitutions, reprinted in H. DOC. NO. 357, 59th Congress, 2d Sess. 1891 (1909) (Massachusetts); 4 id. at 2455 (New Hamp-

SELF-INCRIMINATION

Development and Scope

The source of the self-incrimination clause was the maxim ‘‘nemo tenetur seipsum accusare,’’ that ‘‘no man is bound to accuse himself.’’ The maxim is but one aspect of two different systems of law enforcement which competed in England for acceptance; the accusatorial and the inquisitorial. In the accusatorial system, which predated the reign of Henry II but was expanded and ex- tended by him, first the community and then the state by grand and petit juries proceeded against alleged wrongdoers through the examination of others, and in the early years through examination of the defendant as well. The inquisitorial system, which developed in the ecclesiastical courts, compelled the alleged wrongdoer to af- firm his culpability through the use of the oath ex officio. Under the oath, an official had the power to make a person before him take an oath to tell the truth to the full extent of his knowledge as to all matters about which he would be questioned; before ad- ministration of the oath the person was not advised of the nature of the charges against him, or whether he was accused of crime, and was also not informed of the nature of the questions to be asked. 167

The use of this oath in Star Chamber proceedings, especially to root out political heresies, combined with opposition to the eccle- siastical oath ex officio, led over a long period of time to general acceptance of the principle that a person could not be required to accuse himself under oath in any proceeding before an official tri- bunal seeking information looking to a criminal prosecution, or be- fore a magistrate investigating an accusation against him with or without oath, or under oath in a court of equity or a court of com- mon law. 168 The precedents in the colonies are few in number, but following the Revolution six states had embodied the privilege against self-incrimination in their constitutions, 169 and the privi-

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shire); 5 id. at 2787 (North Carolina), 3038 (Pennsylvania); 6 id. at 3741 (Vermont); 7 id. at 3813 (Virginia).

170 Amendments were recommended by an ‘‘Address’’ of a minority of the Penn- sylvania convention after they had been voted down as a part of the ratification ac- tion, 2 BERNARD SCHWARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 628, 658, 664 (1971), and then the ratifying conventions of Massachusetts, South Caro- lina, New Hampshire, Virginia, and New York formally took this step.

171 Id. at 753 (August 17, 1789). 172 ‘‘It reflects many of our fundamental values and most noble aspirations; our

unwillingness to subject those suspected of crime to the cruel trilemma of self-accu- sation, perjury or contempt; our preference for an accusatorial rather than an in- quisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dic- tates ‘a fair state-individual balance by requiring the government to leave the indi- vidual alone until good cause is shown for disturbing him and by requiring the gov- ernment in its contest with the individual to shoulder the entire load, . . .’; our re- spect for the inviolability of the human personality and of the right of each indi- vidual ‘to a private enclave where he may lead a private life,’ . . . , our distrust of self-deprecatory statement; and our realization that the privilege, while sometimes ‘a shelter to the guilty,’ is often ‘a protection to the innocent.’’’ Murphy v. Waterfront Comm’n, 378 U.S. 52, 55 (1954). A dozen justifications have been suggested for the privilege. 8 J. WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVI- DENCE 2251 (J. McNaughton rev. 1961).

173 E.g., Twining v. New Jersey, 211 U.S. 78, 91 (1908); Ullmann v. United States, 350 U.S. 422, 426 (1956); Quinn v. United States, 349 U.S. 155, 162–63 (1955).

174 ‘‘[T]he basic purposes that lie behind the privilege against self-incrimination do not relate to protecting the innocent from conviction, but rather to preserving the

lege was one of those recommended by several state ratifying con- ventions for inclusion in a federal bill of rights. 170 Madison’s version of the clause read ‘‘nor shall be compelled to be a witness against himself,’’ but a House amendment inserted ‘‘in any criminal case’’ into the provision. 171

The historical studies cited demonstrate that in England and the colonies the privilege was narrower than the interpretation now prevailing, a common situation reflecting the gradual expan- sion, or occasional contracting, of constitutional guarantees based on the judicial application of the policies underlying the guarantees in the context of new factual patterns and practices. The difficulty is that the Court has generally failed to articulate the policy objec- tives underlying the privilege, usually citing a ‘‘complex of values’’ when it has attempted to state the interests served by it. 172 Com- monly mentioned in numerous cases was the assertion that the privilege was designed to protect the innocent and to further the search for truth. 173 It appears now, however, that the Court has rejected both of these as inapplicable and has settled upon the principle that the clause serves two interrelated interests: the pres- ervation of an accusatorial system of criminal justice, which goes to the integrity of the judicial system, and the preservation of per- sonal privacy from unwarranted governmental intrusion. 174 In

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integrity of a judicial system in which even the guilty are not to be convicted unless the prosecution ‘shoulder the entire load.’ . . .’’

‘‘The basic purpose of a trial is the determination of truth, and it is self-evident that to deny a lawyer’s help through the technical intricacies of a criminal trial or to deny a full opportunity to appeal a conviction because the accused is poor is to impede that purpose and to infect a criminal proceeding with the clear danger of convicting the innocent. . . . By contrast, the Fifth Amendment’s privilege against self-incrimination is not an adjunct to the ascertainment of truth. That privilege, like the guarantees of the Fourth Amendment, stands as a protection of quite dif- ferent constitutional values—values reflecting the concern of our society for the right of each individual to be let alone.’’ Tehan v. United States ex rel. Shott, 382 U.S. 406, 415, 416 (1966); Miranda v. Arizona, 384 U.S. 436, 460 (1966); Schmerber v. California, 384 U.S. 757, 760–765 (1966). See also California v. Byers, 402 U.S. 424, 448–58 (1971) (Justice Harlan concurring). For a critical modern view of the privilege, see Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional Change, 37 U. CIN. L. REV. 671 (1968).

175 Ullmann v. United States, 350 U.S. 422, 438–39 (1956). 176 Hoffman v. United States, 341 U.S. 479, 486–87 (1951). See also Emspak v.

United States, 349 U.S. 190 (1955); Blau v. United States, 340 U.S. 159 (1950); Blau v. United States, 340 U.S. 332 (1951).

177 341 U.S. at 488 (quoting Temple v. Commonwealth, 75 Va. 892, 898 (1881)). For an application of these principles, see Malloy v. Hogan, 378 U.S. 1, 11–14 (1964), and id. at 33 (Justices White and Stewart dissenting). Where government is seeking to enforce an essentially noncriminal statutory scheme through compulsory disclo- sure, some Justices would apparently relax the Hoffman principles. Cf. California v. Byers, 402 U.S. 424 (1971) (plurality opinion).

order to protect these interests and to preserve these values, the privilege ‘‘is not to be interpreted literally.’’ Rather, the ‘‘sole con- cern [of the privilege] is, as its name indicates, with the danger to a witness forced to give testimony leading to the infliction of pen- alties affixed to the criminal acts.’’ 175

‘‘The privilege afforded not only extends to answers that would in themselves support a conviction . . . but likewise embraces those which would furnish a link in the chain of evidence needed to pros- ecute . . . . [I]f the witness, upon interposing his claim, were re- quired to prove the hazard . . . he would be compelled to surrender the very protection which the privilege is designed to guarantee. To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a respon- sive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.’’ 176 Thus, a judge who would deny a claim of the privilege must be ‘‘‘perfectly clear, from a careful consideration of all the cir- cumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have such tendency’ to incriminate.’’ 177 The witness must have reasonable cause to apprehend danger from an answer, but he may not be the sole judge of the validity of his claim. While the trial judge may not require a witness to disclose so much of the danger as to render the privilege nugatory, he must determine whether there is a reasonable apprehension of incrimi-

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178 Hoffman v. United States, 341 U.S. 479 (1951); Mason v. United States, 244 U.S. 362 (1917).

179 Ohio v. Reiner, 523 U.S. 17 (2001). 180 Rogers v. United States, 340 U.S. 367 (1951); United States v. Monia, 317

U.S. 424 (1943). The ‘‘waiver’’ concept here as in other recent cases has been pro- nounced ‘‘analytically [un]sound,’’ with the Court preferring to reserve the term ‘‘waiver’’ ‘‘for the process by which one affirmatively renounces the protection of the privilege.’’ Garner v. United States, 424 U.S. 648, 654, n.9 (1976). Thus, the Court has settled upon the concept of ‘‘compulsion’’ as applied to ‘‘cases where disclosures are required in the face of claim of privilege.’’ Id. ‘‘[I]n the ordinary case, if a witness under compulsion to testify makes disclosures instead of claiming the privilege, the Government has not ‘compelled’ him to incriminate himself.’’ Id. at 654. Similarly, the Court has enunciated the concept of ‘‘voluntariness’’ to be applied in situations where it is claimed that a particular factor denied the individual a ‘‘free choice to admit, to deny, or to refuse to answer.’’ Id. at 654 n.9, 656–65.

181 United States v. White, 322 U.S. 694, 701 (1944); Baltimore & O.R.R. v. ICC, 221 U.S. 612, 622 (1911); Hale v. Henkel, 201 U.S. 43, 69–70, 74–75 (1906).

182 United States v. White, 322 U.S. 694, 699–700 (1944); Wilson v. United States, 221 U.S. 361, 384–385 (1911). But the government may make no evidentiary use of the act of production in proceeding individually against the corporate custo- dian. Braswell v. United States, 487 U.S. 99 (1988). Cf. George Campbell Painting Corp. v. Reid, 392 U.S. 286 (1968); United States v. Rylander, 460 U.S. 752 (1983) (witness who had failed to appeal production order and thus had burden in con- tempt proceeding to show inability to then produce records could not rely on privi- lege to shift this evidentiary burden).

nation by considering the circumstances of the case, his knowledge of matters surrounding the inquiry, and the nature of the evidence which is demanded from the witness. 178 The fact that a witness has previously asserted her innocence of any wrongdoing does not obviate the right, as truthful responses of an innocent witness may provide the government with incriminating evidence. 179 The wit- ness must explicitly claim her privilege, however, or she will be deemed to have waived it, and waiver may be found where the wit- ness has answered some preliminary questions but desires to stop at a certain point. 180

The privilege against self-incrimination is a personal one and cannot be utilized by or on behalf of any organization, such as a corporation. Thus, a corporation cannot object on self-incrimination grounds to a subpoena of its records and books or to the compelled testimony of those corporate agents who have been given personal immunity from criminal prosecution. 181 Neither may a corporate official with custody of corporate documents which incriminate him personally resist their compelled production on the assertion of his personal privilege. 182

A witness has traditionally been able to claim the privilege in any proceeding whatsoever in which testimony is legally required when his answer might be used against him in that proceeding or in a future criminal proceeding or when it might be exploited to

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183 Thus, not only may a defendant or a witness in a criminal trial, including a juvenile proceeding, In re Gault, 387 U.S. 1, 42–57 (1967), claim the privilege but so may a party or a witness in a civil court proceeding, McCarthy v. Arndstein, 266 U.S. 34 (1924), a potential defendant or any other witness before a grand jury, Reina v. United States, 364 U.S. 507 (1960); Counselman v. Hitchcock, 142 U.S. 547, 563 (1892), or a witness before a legislative inquiry, Watkins v. United States, 354 U.S. 178, 195–96 (1957); Quinn v. United States, 349 U.S. 155 (1955); Emspak v. United States, 349 U.S. 190 (1955), or before an administrative body. In re Groban, 352 U.S. 330, 333, 336–37, 345–46 (1957); ICC v. Brimson, 154 U.S. 447, 478–80 (1894).

184 Estelle v. Smith, 451 U.S. 454, 462–63 (1981) (‘‘We can discern no basis to distinguish between the guilt and penalty phases of respondent’s capital murder trial so far as the protection of the Fifth Amendment privilege is concerned’’); Mitch- ell v. United States, 526 U.S. 314 (1999) (non-capital sentencing).

185 Allen v. Illinois, 478 U.S. 364 (1986) (declaration that person is ‘‘sexually dangerous’’ under Illinois law is not a criminal proceeding); Minnesota v. Murphy, 465 U.S. 420, 435 n.7 (1984) (revocation of probation is not a criminal proceeding, hence ‘‘there can be no valid claim of the privilege on the ground that the informa- tion sought can be used in revocation proceedings’’). In Murphy, the Court went on to explain that ‘‘a State may validly insist on answers to even incriminating ques- tions and hence sensibly administer its probation system, as long as it recognizes that the required answers may not be used in a criminal proceeding and thus elimi- nates the threat of incrimination. Under such circumstances, a probationer’s ‘right to immunity as a result of his compelled testimony would not be at stake’ . . . and nothing in the Federal Constitution would prevent a State from revoking probation for a refusal to answer . . . .’’ Id.

186 Miranda v. Arizona, 384 U.S. 436 (1966). 187 Schmerber v. California, 384 U.S. 757, 764 (1966); United States v. Wade,

388 U.S. 218, 221–23 (1967); Holt v. United States, 218 U.S. 245, 252 (1910). In California v. Byers, 402 U.S. 424 (1971), four Justices believed that requiring any person involved in a traffic accident to stop and give his name and address did not involve testimonial compulsion and therefore the privilege was inapplicable, id. at 431–34 (Chief Justice Burger and Justices Stewart, White, and Blackmun), but Jus- tice Harlan, id. at 434 (concurring), and Justices Black, Douglas, Brennan, and Mar- shall, id. at 459, 464 (dissenting), disagreed. In South Dakota v. Neville, 459 U.S. 553 (1983), the Court indicated as well that a State may compel a motorist sus- pected of drunk driving to submit to a blood alcohol test, and may also give the sus- pect a choice about whether to submit, but use his refusal to submit to the test as evidence against him. The Court rested its evidentiary ruling on absence of coercion,

uncover other evidence against him. 183 Incrimination is not com- plete once guilt has been adjudicated, and hence the privilege may be asserted during the sentencing phase of trial. 184 Conversely, there is no valid claim on the ground that the information sought can be used in proceedings which are not criminal in nature. 185 The Court in recent years has also applied the privilege to situa- tions, such as police interrogation of suspects, in which there is no legal compulsion to speak. 186

What the privilege protects against is compulsion of ‘‘testi- monial’’ disclosures. Thus, the clause is not offended by such non-testimonial compulsions as requiring a person in custody to stand or walk in a police lineup, to speak prescribed words, to model particular clothing, or to give samples of handwriting, finger- prints, or blood. 187 A person may be compelled to produce specific

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preferring not to apply the sometimes difficult distinction between testimonial and physical evidence. In another case, involving roadside videotaping of a drunk driving suspect, the Court found that the slurred nature of the suspect’s speech, as well as his answers to routine booking questions as to name, address, weight, height, eye color, date of birth, and current age, were not testimonial in nature. Pennsylvania v. Muniz, 496 U.S. 582 (1990). On the other hand, the suspect’s answer to a request to identify the date of his sixth birthday was considered testimonial. Id. Two Jus- tices recently challenged the interpretation limiting application to ‘‘testimonial’’ dis- closures, claiming that the original understanding of the word ‘‘witness’’ was not limited to someone who gives testimony, but included someone who gives any kind of evidence. United States v. Hubbell, 530 U.S. 27, 49 (2000) (Justice Thomas, joined by Justice Scalia, concurring).

188 Fisher v. United States, 425 U.S. 391 (1976). Compelling a taxpayer by sub- poena to produce documents produced by his accountants from his own papers does not involve testimonial self-incrimination and is not barred by the privilege. ‘‘[T]he Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence but applies only when the accused is compelled to make a testimonial communication that is incriminating.’’ Id. at 408 (emphasis by Court). Even further removed from the protection of the privilege is seizure pur- suant to a search warrant of business records in the handwriting of the defendant. Andresen v. Maryland, 427 U.S. 463 (1976). A court order compelling a target of a grand jury investigation to sign a consent directive authorizing foreign banks to disclose records of any and all accounts over which he had a right of withdrawal is not testimonial in nature, since the factual assertions are required of the banks and not of the target. Doe v. United States, 487 U.S. 201 (1988).

189 In United States v. Doe, 465 U.S. 605 (1984), the Court distinguished Fish- er, upholding lower courts’ findings that the act of producing tax records implicates the privilege because it would compel admission that the records exist, that they were in the taxpayer’s possession, and that they are authentic. Similarly, a juvenile court’s order to produce a child implicates the privilege, because the act of compli- ance ‘‘would amount to testimony regarding [the subject’s] control over and posses- sion of [the child].’’ Baltimore Dep’t of Social Services v. Bouknight, 493 U.S. 549, 555 (1990).

190 United States v. Hubbell, 530 U.S. 27 (2000). 191 E.g., Marchetti v. United States, 390 U.S. 39 (1968) (criminal penalties at-

tached to failure to register and make incriminating admissions); Malloy v. Hogan, 378 U.S. 1 (1964) (contempt citation on refusal to testify). See also South Dakota v. Neville, 459 U.S. 553 (1983) (no compulsion in introducing evidence of suspect’s

documents even though they contain incriminating information. 188 If, however, the existence of specific documents is not known to the government, and the act of production informs the government about the existence, custody, or authenticity of the documents, then the privilege is implicated. 189 Application of these principles re- sulted in a holding that the Independent Counsel could not base a prosecution on incriminating evidence identified and produced as the result of compliance with a broad subpoena for all information relating to the individual’s income, employment, and professional relationships. 190

The protection is against ‘‘compulsory’’ incrimination, and tra- ditionally the Court has treated within the clause only those com- pulsions which arise from legally enforceable obligations, culmi- nating in imprisonment for refusal to testify or to produce docu- ments. 191 The compulsion need not be imprisonment, but can also

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refusal to submit to blood alcohol test, since state could have forced suspect to take test and need not have offered him a choice); Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841 (1984) (no coercion in requirement that applicants for federal financial assistance for higher education reveal whether they have registered for draft).

192 Garrity v. New Jersey, 385 U.S. 493 (1967); Gardner v. Broderick, 392 U.S. 273 (1968); Uniformed Sanitation Men Ass’n v. Commissioner of Sanitation, 392 U.S. 280 (1968). See also Lefkowitz v. Turley, 414 U.S. 70 (1973), holding unconsti- tutional state statutes requiring the disqualification for five years of contractors doing business with the State if at any time they refused to waive immunity and answer questions respecting their transactions with the State. The State can require employees or contractors to respond to inquiries, but only if it offers them immunity sufficient to supplant the privilege against self-incrimination. See also Lefkowitz v. Cunningham, 431 U.S. 801 (1977).

193 Spevack v. Klein, 385 U.S. 511 (1967). 194 McKune v. Lile, 122 S. Ct. 2017 (2002). The transfer was mandated for re-

fusal to participate in a sexual abuse treatment program that required revelation of sexual history and admission of responsibility. The plurality declared that reha- bilitation programs are permissible if the adverse consequences for non-participation are ‘‘related to the program objectives and do not constitute atypical and significant hardships in relation to the ordinary incidents of prison life.’’ 122 S. Ct. at 2027 (opinion of Justice Kennedy). Concurring Justice O’Connor stated her belief that the ‘‘minor’’ change in living conditions seemed ‘‘very unlikely to actually compel [the prisoner] to participate.’’ Id. at 2034.

195 See, in addition to McKune v. Lile, Baxter v. Palmigiano, 425 U.S. 308 (1976) (adverse inference from inmate’s silence at prison disciplinary hearing); and Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 286 (1998) (adverse inference from inmate’s silence at clemency hearing).

196 Minnesota v. Murphy, 465 U.S. 420 (1984) (the possibility of revocation of probation was not so coercive as to compel a probationer to provide incriminating answers to probation officer’s questions ).

197 The Court in McKune v. Lile was split 5–4, with no opinion of the Court. 198 Brown v. Walker, 161 U.S. 591, 597–98 (1896); Fitzpatrick v. United States,

178 U.S. 304, 314–16 (1900); Brown v. United States, 356 U.S. 148 (1958). See also Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 286 (1998) (testimony at a clem- ency interview is voluntary, and cannot be compelled).

be termination of public employment 192 or disbarment of a law- yer 193 as a legal consequence of a refusal to make incriminating admissions. The degree of coercion may also prove decisive, the Court having ruled that moving a prisoner from a medium security unit to a maximum security unit was insufficient to compel him to incriminate himself in spite of the attendant loss of privileges and the harsher living conditions. 194 However, while it appears that prisoners 195 and probationers 196 have less protection than others, the Court has not yet developed a clear doctrinal explanation to identify the differences between permissible and impermissible co- ercion. 197

It has long been the rule that a defendant who takes the stand in his own behalf does so voluntarily, and cannot then claim the privilege to defeat cross-examination on matters reasonably related to the subject matter of his direct examination, 198 and that such

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199 Spencer v. Texas, 385 U.S. 554, 561 (1967); cf. Michelson v. United States, 335 U.S. 469 (1948).

200 380 U.S. 609, 614 (1965). The result had been achieved in federal court through statutory enactment. 18 U.S.C. § 3481. See Wilson v. United States, 149 U.S. 60 (1893). In Carter v. Kentucky, 450 U.S. 288 (1981), the Court held that the self-incrimination clause required a State, upon defendant’s request, to give a cau- tionary instruction to the jurors that they must disregard defendant’s failure to tes- tify and not draw any adverse inferences from it. This result, too, had been accom- plished in the federal courts through statutory construction. Bruno v. United States, 308 U.S. 287 (1939). In Lakeside v. Oregon, 435 U.S. 333 (1978), the Court held that a court may give such an instruction, even over defendant’s objection. Carter v. Ken- tucky was applied in James v. Kentucky, 466 U.S. 341 (1983) (request for jury ‘‘ad- monition’’ sufficient to invoke right to ‘‘instruction’’).

201 While the Griffin rule continues to apply when the prosecutor on his own ini- tiative asks the jury to draw an adverse inference from a defendant’s silence, it does not apply to a prosecutor’s ‘‘fair response’’ to a defense counsel’s allegation that the government had denied his client the opportunity to explain his actions. United States v. Robinson, 485 U.S. 25, 32 (1988).

202 Chapman v. California, 386 U.S. 18 (1967); United States v. Hasting, 461 U.S. 499 (1983).

203 Doyle v. Ohio, 426 U.S. 610 (1976). Post-arrest silence, the Court stated, is inherently ambiguous, and to permit use of the silence would be unfair since the Miranda warning told the defendant he could be silent. The same result had earlier been achieved under the Court’s supervisory power over federal trials in United States v. Hale, 422 U.S. 171 (1975). The same principles apply to bar a prosecutor’s use of Miranda silence as evidence of an arrestee’s sanity. Wainwright v. Greenfield, 474 U.S. 284 (1986). In determining whether a state prisoner is entitled to federal habeas corpus relief because the prosecution violated due process by using his post- Miranda silence for impeachment purposes at trial, the proper standard for harm- less-error review is that announced in Kotteakos v. United States, 328 U.S. 750, 776 (1946)—whether the due process error had substantial and injurious effect or influ- ence in determining the jury’s verdict—not the stricter ‘‘harmless beyond a reason- able doubt’’ standard of Chapman v. California, 386 U.S. 18, 24 (1967), applicable on direct review. Brecht v. Abrahamson, 507 U.S. 619 (1993).

204 Jenkins v. Anderson, 447 U.S. 231 (1980). Cf. Baxter v. Palmigiano, 425 U.S. 308 (1976) (prison disciplinary hearing may draw adverse inferences from inmate’s assertion of privilege so long as this was not the sole basis of decision against him).

a defendant may be impeached by proof of prior convictions. 199 But in Griffin v. California, 200 the Court refused to permit prosecu- torial or judicial comment to the jury upon a defendant’s refusal to take the stand in his own behalf, because such comment was a ‘‘penalty imposed by courts for exercising a constitutional privilege’’ and ‘‘[i]t cuts down on the privilege by making its assertion cost- ly.’’ 201 Prosecutors’ comments violating the Griffin rule can none- theless constitute harmless error. 202 Neither may a prosecutor im- peach a defendant’s trial testimony through use of the fact that upon his arrest and receipt of a Miranda warning he remained si- lent and did not give the police the exculpatory story he told at trial. 203 But where the defendant took the stand and testified, the Court permitted the impeachment use of his pre-arrest silence when that silence had in no way been officially encouraged, through a Miranda warning or otherwise. 204

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205 Simmons v. United States, 390 U.S. 377 (1968). The rationale of the case was subsequently limited to Fourth Amendment grounds in McGautha v. California, 402 U.S. 183, 210–13 (1971).

206 Harrison v. United States, 392 U.S. 219 (1968). 207 Jackson v. United States, 390 U.S. 570, 583 (1968). 208 Parker v. North Carolina, 397 U.S. 790 (1970); Brady v. United States, 397

U.S. 742 (1970); McMann v. Richardson, 397 U.S. 759 (1970). Parker and Brady en- tered guilty pleas to avoid the death penalty when it became clear that the prosecu- tion had solid evidence of their guilt; Richardson pled guilty because of his fear that an allegedly coerced confession would be introduced into evidence.

209 McGautha v. California, 402 U.S. 183, 210–20 (1971). When the Court subse- quently required bifurcated trials in capital cases, it was on the basis of the Eighth Amendment, and represented no withdrawal from the position described here.

Further, the Court held inadmissible at the subsequent trial a defendant’s testimony at a hearing to suppress evidence wrongfully seized, since use of the testimony would put the defendant to an impermissible choice between asserting his right to remain silent and invoking his right to be free of illegal searches and seizures. 205 The Court also proscribed the introduction at a second trial of the defendant’s testimony at his first trial, given to rebut a confession which was subsequently held inadmissible, since the testimony was in effect ‘‘fruit of the poisonous tree,’’ and had been ‘‘coerced’’ from the defendant through use of the confession. 206 Most potentially far-reaching was a holding that invalidated the penalty structure of a statute under which defendants could escape a possible death sentence by entering a guilty plea; the statute ‘‘needlessly encourage[d]’’ waivers of defendant’s Fifth Amendment right to plead not guilty and his Sixth Amendment right to a jury trial. 207

While this ‘‘needless encouragement’’ test assessed the nature of the choice required to be made by defendants against the strength of the governmental interest in the system requiring the choice, the Court soon devolved another test stressing the volun- tariness of the choice. A guilty plea entered by a defendant who correctly understands the consequences of the plea is voluntary un- less coerced or obtained under false pretenses; moreover, there is no impermissible coercion where the defendant has the effective as- sistance of counsel. 208 The Court in an opinion by Justice Harlan then formulated still another test in holding that a defendant in a capital case in which the jury in one process decides both guilt and sentence could be put to a choice between remaining silent on guilt or admitting guilt and being able to put on evidence designed to mitigate the possible sentence. The pressure to take the stand in response to the sentencing issue, said the Court, was not so great as to impair the policies underlying the self-incrimination clause, policies described in this instance as proscription of coercion and of cruelty in putting the defendant to an undeniably ‘‘hard’’ choice. 209

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Cf. Corbitt v. New Jersey, 439 U.S. 212 (1978); Bordenkircher v. Hayes, 434 U.S. 357 (1978).

210 Williams v. Florida, 399 U.S. 78, 80–86 (1970). The compulsion of choice, Justice White argued for the Court, proceeded from the strength of the State’s case and not from the disclosure requirement. That is, the rule did not affect whether or not the defendant chose to make an alibi defense and to call witnesses, but mere- ly required him to accelerate the timing. It appears, however, that in Brooks v. Ten- nessee, 406 U.S. 605 (1972), the Court utilized the ‘‘needless encouragement’’ test in striking down a state rule requiring the defendant to testify before any other de- fense witness or to forfeit the right to testify at all. In the Court’s view, this impermissibly burdened the defendant’s choice whether to testify or not. Another prosecution discovery effort was approved in United States v. Nobles, 422 U.S. 233 (1975), in which a defense investigator’s notes of interviews with prosecution wit- nesses were ordered disclosed to the prosecutor for use in cross-examination of the investigator. The Court discerned no compulsion upon defendant to incriminate him- self.

211 ‘‘The same situation might present itself if there were no statutory presump- tion and a prima facie case of concealment with knowledge of unlawful importation were made by the evidence. The necessity of an explanation by the accused would be quite as compelling in that case as in this; but the constraint upon him to give testimony would arise there, as it arises here, simply from the force of cir- cumstances and not from any form of compulsion forbidden by the Constitution.’’ Yee Hem v. United States, 268 U.S. 178, 185 (1925), quoted with approval in Turner v. United States, 396 U.S. 398, 418 n.35 (1970). Justices Black and Douglas dis- sented on self-incrimination grounds. Id. at 425. And see United States v. Gainey, 380 U.S. 63, 71, 74 (1965) (dissenting opinions). For due process limitations on such presumptions, see discussion under the Fourteenth Amendment, ‘‘Proof, Burden of Proof, and Presumptions,’’ infra.

212 Prosecution may be precluded by tender of immunity, (see next topic for dis- cussion of immunity) infra, or by pardon, Brown v. Walker, 161 U.S. 591, 598–99 (1896). The effect of a mere tender of pardon by the President remains uncertain. Cf. Burdick v. United States, 236 U.S. 79 (1915) (acceptance necessary, and self-in- crimination is possible in absence of acceptance); Biddle v. Perovich, 274 U.S. 480 (1927) (acceptance not necessary to validate commutation of death sentence to life imprisonment).

213 Brown v. Walker, 161 U.S. 591, 605–06 (1896); Ullmann v. United States, 350 U.S. 422, 430–31 (1956). Minorities in both cases had contended for a broader rule. Walker, 161 U.S. at 631 (Justice Field dissenting); Ullmann, 350 U.S. at 454 (Justice Douglas dissenting).

Similarly, it has been held that requiring a defendant to give notice to the prosecution before trial of his intention to rely on an alibi defense and to give the names and addresses of witnesses who will support it does not violate the clause. 210 Neither does it violate a defendant’s self-incrimination privilege to create a presumption upon the establishment of certain basic facts which the jury may utilize to infer defendant’s guilt unless he rebuts the presump- tion. 211

The obligation to testify is not relieved by this clause, if, re- gardless of whether incriminating answers are given, a prosecution is precluded, 212 or if the result of the answers is not incrimination, but rather harm to reputation or exposure to infamy or disgrace. 213 The clause does not prevent a public employer from discharging an employee who, in an investigation specifically and narrowly di-

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214 Gardner v. Broderick, 392 U.S. 273, 278 (1968). Testimony compelled under such circumstances is, even in the absence of statutory immunity, barred from use in a subsequent criminal trial by force of the Fifth Amendment itself. Garrity v. New Jersey, 385 U.S. 493 (1967). However, unlike public employees, persons subject to professional licensing by government appear to be able to assert their privilege and retain their licenses. Cf. Spevack v. Klein, 385 U.S. 511 (1967) (lawyer may not be disbarred solely because he refused on self-incrimination grounds to testify at a disciplinary proceeding), approved in Gardner v. Broderick, 392 U.S. at 277–78. Jus- tices Harlan, Clark, Stewart, and White dissented generally. 385 U.S. 500, 520, 530.

215 See Slochower v. Board of Education, 350 U.S. 551 (1956), limited by Lerner v. Casey, 357 U.S. 468 (1958), and Nelson v. County of Los Angeles, 362 U.S. 1 (1960), which were in turn apparently limited by Garrity and Gardner.

216 Malloy v. Hogan, 378 U.S. 1 (1964), (overruling Twining v. New Jersey, 211 U.S. 78 (1908), and Adamson v. California, 332 U.S. 46 (1947)).

217 Murphy v. Waterfront Comm’n, 378 U.S. 52 (1964), (overruling United States v. Murdock, 284 U.S. 141 (1931) (Federal Government could compel a witness to give testimony which might incriminate him under state law), Knapp v. Schweitzer, 357 U.S. 371 (1958) (State may compel a witness to give testimony which might in- criminate him under federal law), and Feldman v. United States, 322 U.S. 487 (1944) (testimony compelled by a State may be introduced into evidence in the fed- eral courts)). Murphy held that a State could compel testimony under a grant of im- munity but that since the State could not extend the immunity to federal courts the Supreme Court would not permit the introduction of evidence into federal courts which had been compelled by a State or which had been discovered because of state compelled testimony. The result was apparently a constitutionally compelled one arising from the Fifth Amendment itself, 378 U.S. at 75–80, rather than one taken pursuant to the Court’s supervisory power as Justice Harlan would have preferred. Id. at 80 (concurring). Congress has power to confer immunity in state courts as well as in federal in order to elicit information, Adams v. Maryland, 347 U.S. 179 (1954), but whether Congress must do so or whether the immunity would be con- ferred simply through the act of compelling the testimony Murphy did not say.

Whether testimony could be compelled by either the Federal Government or a State that could incriminate a witness in a foreign jurisdiction is unsettled, see Zicarelli v. New Jersey State Comm’n of Investigation, 406 U.S. 472, 480, 481 (1972) (reserving question), but an affirmative answer seems unlikely. Cf. Murphy, 378 U.S. at 58–63, 77.

218 United States v. Balsys, 524 U.S. 666 (1998).

rected at the performance of the employee’s official duties, refuses to cooperate and to provide the employer with the desired informa- tion on grounds of self-incrimination. 214 But it is unclear under what other circumstances a public employer may discharge an em- ployee who has claimed his privilege before another investigating agency. 215

Finally, the rules established by the clause and the judicial in- terpretations are applicable against the States to the same degree that they apply to the Federal Government, 216 and neither sov- ereign can compel discriminatory admissions which would incrimi- nate the person in the other jurisdiction. 217 There is no ‘‘coopera- tive internationalism’’ that parallels the cooperative federalism and cooperative prosecution on which application against states is pre- mised, and consequently concern with foreign prosecution is beyond the scope of the Self-Incrimination Clause. 218

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219 Kastigar v. United States, 406 U.S. 441, 445–46 (1972). It has been held that the Fifth Amendment itself precludes the use as criminal evidence of compelled ad- missions, Garrity v. New Jersey, 385 U.S. 493 (1967), but this case and dicta in oth- ers is unreconciled with the cases that find that one may ‘‘waive’’ though inadvert- ently the privilege and be required to testify and incriminate oneself. Rogers v. United States, 340 U.S. 367 (1951).

220 9 Anne, c. 14, 3–4 (1710). See Kastigar v. United States, 406 U.S. 441, 445 n.13 (1972).

221 Ch. 19, 11 Stat. 155 (1857). There was an exception for perjury committed while testifying before Congress.

222 Ch. 11, 12 Stat. 333 (1862). 223 142 U.S. 547 (1892). The statute struck down was ch. 13, 15 Stat. 37 (1868). 224 Counselman v. Hitchcock, 142 U.S. 547, 564 (1892). And see id. at 586. 225 142 U.S. at 585–86. 226 ‘‘Transactional’’ immunity means that once a witness has been compelled to

testify about an offense, he may never be prosecuted for that offense, no matter how much independent evidence might come to light; ‘‘use’’ immunity means that no tes- timony compelled to be given and no evidence derived from or obtained because of the compelled testimony may be used if the person is subsequently prosecuted on independent evidence for the offense.

The Power To Compel Testimony and Disclosure

Immunity.—‘‘Immunity statutes, which have historical roots deep in Anglo-American jurisprudence, are not incompatible [with the values of the self-incrimination clause]. Rather they seek a ra- tional accommodation between the imperatives of the privilege and the legitimate demands of government to compel citizens to testify. The existence of these statutes reflects the importance of testi- mony, and the fact that many offenses are of such a character that the only persons capable of giving useful testimony are those impli- cated in the crime.’’ 219 Apparently the first immunity statute was enacted by Parliament in 1710 220 and it was widely copied in the colonies. The first federal immunity statute was enacted in 1857, and immunized any person who testified before a congressional committee from prosecution for any matter ‘‘touching which’’ he had testified. 221

Revised in 1862 so as merely to prevent the use of the congres- sional testimony at a subsequent prosecution of any congressional witness, 222 the statute was soon rendered unenforceable by the rul- ing in Counselman v. Hitchcock 223 that an analogous limited im- munity statute was unconstitutional because it did not confer an immunity coextensive with the privilege it replaced. Counselman was ambiguous with regard to its grounds because it identified two faults in the statute: it did not proscribe ‘‘derivative’’ evidence 224 and it prohibited only future use of the compelled testimony. 225 The latter language accentuated a division between adherents of ‘‘transactional’’ immunity and of ‘‘use’’ immunity which has contin- ued to the present. 226 In any event, following Counselman, Con- gress enacted a statute which conferred transactional immunity as

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227 Ch. 83, 27 Stat. 443 (1893). 228 Brown v. Walker, 161 U.S. 591 (1896). The majority reasoned that one was

excused from testifying only if there could be legal detriment flowing from his act of testifying. If a statute of limitations had run or if a pardon had been issued with regard to a particular offense, a witness could not claim the privilege and refuse to testify, no matter how much other detriment, such as loss of reputation, would attach to his admissions. Therefore, since the statute acted as a pardon or amnesty and relieved the witness of all legal detriment, he must testify. The four dissenters contended essentially that the privilege protected against being compelled to incrim- inate oneself regardless of any subsequent prosecutorial effort, id. at 610, and that a witness was protected against infamy and disparagement as much as prosecution. Id. at 628.

229 Ullmann v. United States, 350 U.S. 422, 438 (1956), (quoting Shapiro v. United States, 335 U.S. 1, 6 (1948)).

230 ‘‘[The] sole concern [of the privilege] is . . . with the danger to a witness forced to give testimony leading to the infliction of ‘penalties affixed to the criminal acts’. . . . Immunity displaces the danger. Once the reason for the privilege ceases, the privilege ceases.’’ 350 U.S. at 438–39. The internal quotation is from Boyd v. United States, 116 U.S. 616, 634 (1886).

231 Kastigar v. United States, 406 U.S. 441, 457–58 (1972); Piccirillo v. New York, 400 U.S. 548, 571 (1971) (Justice Brennan dissenting). The exception was an immunity provision of the bankruptcy laws, 30 Stat. 548 (1898), 11 U.S.C. § 25(a)(10), repealed by 84 Stat. 931 (1970). The right of a bankrupt to insist on his privilege against self-incrimination as against this statute was recognized in McCar- thy v. Arndstein, 266 U.S. 34, 42 (1924), ‘‘because the present statute fails to afford complete immunity from a prosecution.’’ The statute also failed to prohibit the use of derivative evidence. Arndstein v. McCarthy, 254 U.S. 71 (1920).

232 E.g., Hale v. Henkel, 201 U.S. 43, 67 (1906); United States v. Monia, 317 U.S. 424, 425, 428 (1943); Smith v. United States, 337 U.S. 137, 141, 146 (1949); United States v. Murdock, 284 U.S. 141 149 (1931); Adams v. Maryland, 347 U.S. 179, 182 (1954). In Ullmann v. United States, 350 U.S. 422, 436–37 (1956), Justice Frankfurter described the holding of Counselman as relating to the absence of a pro- hibition on the use of derivative evidence.

233 Malloy v. Hogan, 378 U.S. 1 (1964), extended the clause to the States. That Congress could immunize a federal witness from state prosecution and, of course, extend use immunity to state courts, was held in Adams v. Maryland, 347 U.S. 179 (1954), and had been recognized in Brown v. Walker, 161 U.S. 591 (1896).

the price for being able to compel testimony, 227 and the Court sus- tained this law in a five-to-four decision. 228

‘‘The 1893 statute has become part of our constitutional fabric and has been included ‘in substantially the same terms, in virtually all of the major regulatory enactments of the Federal Govern- ment.’’’ 229 So spoke Justice Frankfurter in 1956, broadly reaffirm- ing Brown v. Walker and upholding the constitutionality of a fed- eral immunity statute. 230 Because all but one of the immunity acts passed after Brown v. Walker were transactional immunity stat- utes, 231 the question of the constitutional sufficiency of use immu- nity did not arise, although dicta in cases dealing with immunity continued to assert the necessity of the former type of grant. 232 But beginning in 1964, when it applied the self-incrimination clause to the States, the Court was faced with the problem which arose be- cause a State could grant immunity only in its own courts and not in the courts of another State or of the United States. 233 On the

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234 Murphy v. Waterfront Comm’n, 378 U.S. 52, 77–99 (1964). Concurring, Jus- tices White and Stewart argued at length in support of the constitutional sufficiency of use immunity and the lack of a constitutional requirement of transactional immu- nity. Id. at 92. See also Gardner v. Broderick, 392 U.S. 273 (1968); Uniformed Sani- tation Men Ass’n v. Commissioner of Sanitation, 392 U.S. 280 (1968); Garrity v. New Jersey, 385 U.S. 493 (1967), recognizing the propriety of compelling testimony with a use restriction attached.

235 Marchetti v. United States, 390 U.S. 39, 58 (1968). 236 Organized Crime Control Act of 1970, Pub. L. No. 91–452, § 201(a), 84 Stat.

922, 18 U.S.C. §§ 6002–03. Justice Department officials have the authority under the Act to decide whether to seek immunity, and courts will not apply ‘‘constructive’’ use immunity absent compliance with the statute’s procedures. United States v. Doe, 465 U.S. 605 (1984).

237 406 U.S. 441 (1972). A similar state statute was sustained in Zicarelli v. New Jersey State Comm’n of Investigation, 406 U.S. 472 (1972).

238 Kastigar v. United States, 406 U.S. 441, 459 (1972). See also United States v. Hubbell, 530 U.S. 27 (2000) (because the statute protects against derivative use of compelled testimony, a prosecution cannot be based on incriminating evidence re- vealed only as the result of compliance with an extremely broad subpoena).

other hand, to foreclose the States from compelling testimony be- cause they could not immunize a witness in a subsequent ‘‘foreign’’ prosecution would severely limit state law enforcement efforts. Therefore, the Court emphasized the ‘‘use’’ restriction rationale of Counselman and announced that as a ‘‘constitutional rule, a state witness could not be compelled to incriminate himself under federal law unless federal authorities were precluded from using either his testimony or evidence derived from it,’’ and thus formulated a use restriction to that effect. 234 Then, while refusing to adopt the course because of statutory interpretation reasons, the Court indi- cated that use restriction in a federal regulatory scheme requiring the reporting of incriminating information was ‘‘in principle an at- tractive and apparently practical resolution of the difficult problem before us,’’ citing Murphy with apparent approval. 235

Congress thereupon enacted a statute replacing all prior im- munity statutes and adopting a use-immunity restriction only. 236 Soon tested, this statute was sustained in Kastigar v. United States. 237 ‘‘[P]rotection coextensive with the privilege is the degree of protection which the Constitution requires,’’ wrote Justice Powell for the Court, ‘‘and is all that the Constitution requires. . . .’’ 238 ‘‘Transactional immunity, which accords full immunity from pros- ecution for the offense to which the compelled testimony relates, af- fords the witness considerably broader protection than does the Fifth Amendment privilege. The privilege has never been construed to mean that one who invokes it cannot subsequently be pros- ecuted. Its sole concern is to afford protection against being ‘forced to give testimony leading to the infliction of penalties affixed to . . . criminal acts.’ Immunity from the use of compelled testimony and evidence derived directly and indirectly therefrom affords this

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239 406 U.S. at 453. Joining Justice Powell in the opinion were Justices Stewart, White, and Blackmun, and Chief Justice Burger. Justices Douglas and Marshall dis- sented, contending that a ban on use could not be enforced even if a use ban was constitutionally adequate. Id. at 462, 467. Justices Brennan and Rehnquist did not participate but Justice Brennan’s views that transactional immunity was required had been previously stated. Piccirillo v. New York, 400 U.S. 548, 552 (1971) (dis- senting). See also New Jersey v. Portash, 440 U.S. 451 (1979) (prosecution use of defendant’s immunized testimony to impeach him at trial violates self-incrimination clause). Neither the clause nor the statute prevents the perjury prosecution of an immunized witness or the use of all his testimony to prove the commission of per- jury. United States v. Apfelbaum, 445 U.S. 115 (1980). See also United States v. Wong, 431 U.S. 174 (1977); United States v. Mandujano, 425 U.S. 564 (1976). Be- cause use immunity is limited, a witness granted use immunity for grand jury testi- mony may validly invoke his Fifth Amendment privilege in a civil deposition pro- ceeding when asked whether he had ‘‘so testified’’ previously, the deposition testi- mony not being covered by the earlier immunity. Pillsbury Co. v. Conboy, 459 U.S. 248 (1983).

240 Boyd v. United States, 116 U.S. 616 (1886). But see Fisher v. United States, 425 U.S. 391 (1976).

241 See discussion supra under ‘‘Development and Scope.’’ 242 Shapiro v. United States, 335 U.S. 1, 33 (1948), (quoting Davis v. United

States, 328 U.S. 582, 589–90 (1946), (quoting in turn Wilson v. United States, 221 U.S. 361, 380 (1911))). Wilson is the source of the required-records doctrine in its dicta, the holding in the case being the familiar one that a corporate officer cannot claim the privilege against self-incrimination to refuse to surrender corporate records in his custody. Cf. Heike v. United States, 227 U.S. 131 (1913). Davis was a search and seizure case and dealt with gasoline ration coupons which were gov- ernment property even though in private possession. See Shapiro, 335 U.S. at 36, 56–70 (Justice Frankfurter dissenting).

protection. It prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness.’’ 239

Required Records Doctrine.—While the privilege is applica- ble to an individual’s papers and effects, 240 it does not extend to corporate persons, hence corporate records, as has been noted, are subject to compelled production. 241 In fact, however, the Court has greatly narrowed the protection afforded in this area to natural persons by developing the ‘‘required records’’ doctrine. That is, it has held ‘‘that the privilege which exists as to private papers can- not be maintained in relation to ‘records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation and the enforcement of restrictions validly established.’’’ 242 This excep- tion developed out of, as Justice Frankfurter showed in dissent, the rule that documents which are part of the official records of govern- ment are wholly outside the scope of the privilege; public records are the property of government and are always accessible to inspec- tion. Because government requires certain records to be kept to fa- cilitate the regulation of the business being conducted, so the rea- soning goes, the records become public at least to the degree that

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243 335 U.S. at 51. 244 335 U.S. at 32. 245 335 U.S. at 32 246 274 U.S. 259, 263, 264 (1927). Sullivan was reaffirmed in Garner v. United

States, 424 U.S. 648 (1976), holding that a taxpayer’s privilege against self-incrimi- nation was not violated when he failed to claim his privilege on his tax returns, and instead gave incriminating information leading to conviction. One must assert one’s privilege to alert the Government to the possibility that it is seeking to obtain in- criminating material. It is not coercion forbidden by the clause that upon a claim of the privilege the Government could seek an indictment for failure to file, since a valid claim of privilege cannot be the basis of a conviction. The taxpayer was not entitled to a judicial ruling on the validity of his claim and an opportunity to recon- sider if the ruling went against him, irrespective of whether a good-faith erroneous assertion of the privilege could subject him to prosecution, a question not resolved.

government could always scrutinize them without hindrance from the record-keeper. ‘‘If records merely because required to be kept by law ipso facto become public records, we are indeed living in glass houses. Virtually every major public law enactment—to say nothing of State and local legislation—has record-keeping provi- sions. In addition to record-keeping requirements, is the network of provisions for filing reports. Exhaustive efforts would be needed to track down all the statutory authority, let alone the administrative regulations, for record-keeping and reporting requirements. Un- questionably they are enormous in volume.’’ 243

‘‘It may be assumed at the outset that there are limits which the Government cannot constitutionally exceed in requiring the keeping of records which may be inspected by an administrative agency and may be used in prosecuting statutory violations com- mitted by the recordkeeper himself.’’ 244 But the only limit which the Court suggested in Shapiro was that there must be ‘‘a suffi- cient relation between the activity sought to be regulated and the public concern so that the Government can constitutionally regu- late or forbid the basic activity concerned, and can constitutionally require the keeping of particular records, subject to inspection by the Administrator.’’ 245 That there are limits established by the self- incrimination clause itself rather than by a subject matter jurisdic- tion test is evident in the Court’s consideration of reporting and disclosure requirements implicating but not directly involving the required-records doctrine.

Reporting and Disclosure.—The line of cases begins with United States v. Sullivan 246 in which a unanimous Court held that the Fifth Amendment did not privilege a bootlegger in not filing an income tax return because the filing would have disclosed the ille- gality in which he was engaged. ‘‘It would be an extreme if not an extravagant application of the Fifth Amendment to say that it au- thorized a man to refuse to state the amount of his income because it had been made in crime.’’ Justice Holmes stated for the Court.

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247 The expansion of the commerce power would now obviate reliance on the tax- ing power.

248 United States v. Kahriger, 345 U.S. 22 (1953); Lewis v. United States, 348 U.S. 419 (1955).

249 382 U.S. 70 (1965). 250 382 U.S. at 79. The decision was unanimous, Justice White not participating.

The same issue had been held not ripe for adjudication in Communist Party v. SACB, 367 U.S. 1, 105–10 (1961).

251 Marchetti v. United States, 390 U.S. 39 (1968) (occupational tax); Grosso v. United States, 390 U.S. 62 (1968) (wagering excise tax). In Haynes v. United States, 390 U.S. 85 (1968), the Court struck down a requirement that one register a firearm that it was illegal to possess. The following Term on the same grounds the Court voided a statute prohibiting the possession of marijuana without having paid a transfer tax and registering. Leary v. United States, 395 U.S. 6 (1969); United States v. Covington, 395 U.S. 57 (1969). However, a statute was upheld which pro- hibited the sale of narcotics to a person who did not have a written order on a pre-

However, ‘‘[i]f the form of return provided called for answers that the defendant was privileged from making he could have raised the objection in the return . . . .’’ Utilizing its taxing power to reach gambling activities over which it might not have had jurisdiction otherwise, 247 Congress enacted a complicated statute imposing an annual occupational tax on gamblers and an excise tax on all their wages, and coupled the tax with an annual registration require- ment under which each gambler must file with the IRS a declara- tion of his business with identification of his place of business and his employees and agents, filings which were made available to state and local law enforcement agencies. These requirements were upheld by the Court against self-incrimination challenges on the three grounds that (1) the privilege did not excuse a complete fail- ure to file, (2) since the threshold decision to gamble was vol- untary, the required disclosures were not compulsory, and (3) since registration required disclosure only of prospective conduct, the privilege, limited to past or present acts, did not apply. 248

Constitutional limitations appeared, however, in Albertson v. SACB, 249 which struck down under the self-incrimination clause an order pursuant to statute requiring registration by individual mem- bers of the Communist Party or associated organizations. ‘‘In Sul- livan the questions in the income tax return were neutral on their face and directed at the public at large, but here they are directed at a highly selective group inherently suspect of criminal activities. Petitioners’ claims are not asserted in an essentially noncriminal and regulatory area of inquiry, but against an inquiry in an area permeated with criminal statutes, where response to any of the form’s questions in context might involve the petitioners in the ad- mission of a crucial element of a crime.’’ 250

The gambling tax reporting scheme was next struck down by the Court. 251 Because of the pervasiveness of state laws prohibiting

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scribed form, since the requirement caused the self-incrimination of the buyer but not the seller, the Court viewing the statute as actually a flat proscription on sale rather than a regulatory measure. Minor v. United States, 396 U.S. 87 (1969). The congressional response was reenactment of the requirements coupled with use im- munity. United States v. Freed, 401 U.S. 601 (1971).

252 Marchetti v. United States, 390 U.S. 39, 48 (1968). 253 ‘‘Every element of these requirements would have served to incriminate peti-

tioners; to have required him to present his claim to Treasury officers would have obliged him ‘to prove guilt to avoid admitting it.’’’ 390 U.S. at 50.

254 ‘‘The question is not whether petitioner holds a ‘right’ to violate state law, but whether, having done so, he may be compelled to give evidence against himself. The constitutional privilege was intended to shield the guilty and imprudent as well as the innocent and foresighted; if such an inference of antecedent choice were alone enough to abrogate the privilege’s protection, it would be excluded from the situa- tions in which it has historically been guaranteed, and withheld from those who most require it.’’ 390 U.S. at 51. But cf. California v. Byers, 402 U.S. 424, 434 (1971) (plurality opinion), in which it is suggested that because there is no ‘‘right’’ to leave the scene of an accident a requirement that a person involved in an accident stop and identify himself does not violate the self-incrimination clause.

255 Marchetti v. United States, 390 U.S. 39, 52–54 (1968). ‘‘The central standard for the privilege’s application has been whether the claimant is confronted by sub- stantial and ‘real,’ and not merely trifling or imaginary, hazards of incrimination . . . . This principle does not permit the rigid chronological distinctions adopted in Kahriger and Lewis. We see no reason to suppose that the force of the constitutional prohibition is diminished merely because confession of a guilty purpose precedes the act which it is subsequently employed to evidence.’’ Id. at 53–54. Cf. United States v. Freed, 401 U.S. 601, 605–07 (1971).

gambling, said Justice Harlan for the Court, ‘‘the obligations to reg- ister and to pay the occupational tax created for petitioner ‘real and appreciable,’ and not merely ‘imaginary and unsubstantial,’ hazards of self-incrimination.’’ 252 Overruling Kahriger and Lewis, the Court rejected its earlier rationales. Registering per se would have exposed a gambler to dangers of state prosecution, so Sul- livan did not apply. 253 Any contention that the voluntary engage- ment in gambling ‘‘waived’’ the self-incrimination claim, because there is ‘‘no constitutional right to gamble,’’ would nullify the privi- lege. 254 And the privilege was not governed by a ‘‘rigid chrono- logical distinction’’ so that it protected only past or present conduct, but also reached future self-incrimination the danger of which is not speculative and insubstantial. 255 Significantly, then, Justice Harlan turned to distinguishing the statutory requirements here from the ‘‘required records’’ doctrine of Shapiro. ‘‘First, petitioner . . . was not . . . obliged to keep and preserve records ‘of the same kind as he has customarily kept’; he was required simply to provide information, unrelated to any records which he may have main- tained, about his wagering activities. This requirement is not sig- nificantly different from a demand that he provide oral testimony . . . . Second, whatever ‘public aspects’ there were to the records at issue in Shapiro, there are none to the information demanded from Marchetti. The Government’s anxiety to obtain information

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256 Marchetti v. United States, 390 U.S. 39, 57 (1968). 257 402 U.S. 424 (1971) 258 402 U.S. at 427–31 (Chief Justice Burger and Justices Stewart, White, and

Blackmun). 259 ‘‘The California Supreme Court was surely correct in considering that the de-

cisions of this Court have made it clear that invocation of the privilege is not limited to situations where the purpose of the inquiry is to get an incriminating answer . . . . [I]t must be recognized that a reading of our more recent cases . . . suggests the conclusion that the applicability of the privilege depends exclusively on a deter- mination that, from the individual’s point of view, there are ‘real’ and not ‘imagi-

known to a private individual does not without more render that information public; if it did, no room would remain for the applica- tion of the constitutional privilege. Nor does it stamp information with a public character that the Government has formalized its de- mands in the attire of a statute; if this alone were sufficient, the constitutional privilege could be entirely abrogated by any Act of Congress. Third, the requirements at issue in Shapiro were im- posed in ‘an essentially non-criminal and regulatory area of in- quiry’ while those here are directed to a ‘selective group inherently suspect of criminal activities.’ The United States’ principal interest is evidently the collection of revenue, and not the punishment of gamblers, . . . but the characteristics of the activities about which information is sought, and the composition of the groups to which inquiries are made, readily distinguish this situation from that in Shapiro.’’ 256

Most recent of this line of cases is California v. Byers, 257 which indicates that the Court has yet to settle on an ascertainable standard for judging self-incrimination claims in cases where gov- ernment is asserting an interest other than criminal law enforce- ment. Byers sustained the constitutionality of a statute which re- quired the driver of any automobile involved in an accident to stop and give his name and address. The state court had held that a driver who reasonably believed that compliance with the statute would result in self-incrimination could refuse to comply. A plu- rality of the Court, however, determined that Sullivan and Sha- piro applied and not the Albertson- Marchetti line of cases, because the purpose of the statute was to promote the satisfaction of civil liabilities resulting from automobile accidents and not criminal prosecutions, and because the statute was directed to all drivers and not to a group which was either ‘‘highly selective’’ or ‘‘inher- ently suspect of criminal activities.’’ The combination of a non- criminal motive with the general character of the requirement made too slight for reliance the possibility of incrimination. 258 Jus- tice Harlan concurred to make up the majority on the disposition of the case, disagreeing with the plurality’s conclusion that the stop and identification requirement did not compel incrimination. 259

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nary’ risks of self-incrimination in yielding to state compulsion. Thus, Marchetti and Grosso . . . start from an assumption of a non-prosecutorial governmental purpose in the decision to tax gambling revenues; those cases go on to apply what in another context I have called the ‘real danger v. imaginary possibility standard . . . .’ A judi- cial tribunal whose position with respect to the elaboration of constitutional doctrine is subordinate to that of this Court certainly cannot be faulted for reading these opinions as indicating that the ‘inherently-suspect-class’ factor is relevant only as an indicium of genuine incriminating risk as assessed from the individual’s point of view.’’ 402 U.S. at 437–38.

260 402 U.S. at 448–58. The four dissenters argued that it was unquestionable that Byers would have faced real risks of self-incrimination by compliance with the statute and that this risk was sufficient to invoke the privilege. Id. at 459, 464 (Jus- tices Black, Douglas, Brennan, and Marshall).

261 493 U.S. 549 (1990). 262 493 U.S. at 561. By the same token, the Court concluded that the targeted

group—persons who care for children pursuant to a juvenile court’s custody order— is not a group ‘‘inherently suspect of criminal activities’’ in the Albertson- Marchetti sense.

263 Bram v. United States, 168 U.S. 532, 542 (1897).

However, the Justice thought that where there is no governmental purpose to enforce a criminal law and instead government is pur- suing other legitimate regulatory interests, it is permissible to apply a balancing test between the government’s interest and the individual’s interest. When he balanced the interests protected by the Amendment—protection of privacy and maintenance of an accusatorial system—with the noncriminal purpose, the necessity for self-reporting as a means of securing information, and the na- ture of the disclosures required, Justice Harlan voted to sustain the statute. 260 Byers was applied in Baltimore Dep’t of Social Services v. Bouknight 261 to uphold a juvenile court’s order that the mother of a child under the court’s supervision produce the child. Although in this case the mother was suspected of having abused or mur- dered her child, the order was justified for ‘‘compelling reasons un- related to criminal law enforcement’’: concern for the child’s safe- ty. 262 Moreover, because the mother had custody of her previously abused child only as a result of the juvenile court’s order, the Court analogized to the required records cases to conclude that the moth- er had submitted to the requirements of the civil regulatory regime as the child’s ‘‘custodian.’’

Confessions: Police Interrogation, Due Process, and Self- Incrimination

‘‘In criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment to the Constitution of the United States, commanding that no person ‘shall be compelled in any criminal case to be a wit- ness against himself.’’’ 263 This language in an 1897 case marked a

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264 Miranda v. Arizona, 384 U.S. 436 (1966). 265 3 J. WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVI-

DENCE § 823, at 250 n.5 (3d ed. 1940); see also vol. 8 id. at § 2266 (McNaughton rev. 1961). It appears that while the two rules did develop separately, they did stem from some of the same considerations, and, in fact, the confession rule may be con- sidered in important respects to be an off-shoot of the privilege against self-incrimi- nation. See L. LEVY, ORIGINS OF THE FIFTH AMENDMENT—THE RIGHT AGAINST SELF- INCRIMINATION 325–32, 495 n.43 (1968). See also Culombe v. Connecticut, 367 U.S. 568, 581–84, especially 583 n.25 (1961) (Justice Frankfurter announcing judgment of the Court).

266 3 J. WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVI- DENCE § 823 (3d ed. 1940); Developments in the Law—Confessions, 79 HARV. L. REV. 935, 954–59 (1966).

sharp if unacknowledged break with the doctrine of previous cases in which the Court had applied the common-law test of voluntari- ness to determine the admissibility of confessions, and, while the language was never expressly disavowed in subsequent cases, the Court seems nevertheless to have proceeded along due process standards rather than self-incrimination analysis. Because the self- incrimination clause for most of this period was not applicable to the States, the admissibility of confessions in state courts was de- termined under due process standards developed from common-law voluntariness principles. It was only after the Court extended the self-incrimination clause to the States that a divided Court re- affirmed and extended the 1897 ruling and imposed on both federal and state trial courts new rules for admitting or excluding confes- sions and other admissions made to police during custodial interro- gation. 264 Though recent research tends to treat as oversimplified Wigmore’s conclusion that ‘‘there never was any historical connec- tion . . . between the constitutional clause and the confession-doc- trine,’’ 265 the fact is that the contention, coupled with the inappli- cability of the self-incrimination clause to the States, was appar- ently the basis until recently for the Supreme Court’s adjudication of confession cases.

The Common Law Rule.—Not until the latter part of the eighteenth century did courts develop a rule excluding coerced con- fessions from admission at trial; prior to that time, even confes- sions obtained by torture were admissible. As the rule developed in England and in early United States jurisprudence, the rationale was the unreliability of the confession’s contents when induced by a promise of benefit or a threat of harm. 266 In its first decision on the admissibility of confessions, the Court adopted the common-law rule, stressing that while a ‘‘voluntary confession of guilt is among the most effectual proofs in the law, from the very nature of such evidence it must be subjected to careful scrutiny and received with great caution.’’ ‘‘[T]he presumption upon which weight is given to

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267 Hopt v. Utah, 110 U.S. 574, 584–85 (1884). Utah at this time was a territory and subject to direct federal judicial supervision.

268 Pierce v. United States, 160 U.S. 335 (1896); Sparf v. United States, 156 U.S. 51 (1895). In Wilson v. United States, 162 U.S. 613 (1896), failure to provide counsel or to warn the suspect of his right to remain silent was held to have no effect on the admissibility of a confession but was only to be considered in assessing its credi- bility.

269 168 U.S. 532 (1897). ‘‘[T]he generic language of the [Fifth] Amendment was but a crystallization of the doctrine as to confessions, well settled when the Amend- ment was adopted. . . .’’ Id. at 543.

270 168 U.S. at 549. 271 Ziang Sun Wan v. United States, 266 U.S. 1, 14–15 (1924). This case first

held that the circumstances of detention and interrogation were relevant and per- haps controlling on the question of admissibility of a confession.

272 Burdeau v. McDowell, 256 U.S. 465, 475 (1921); Powers v. United States , 223 U.S. 303, 313 (1912); Shotwell Mfg. Co. v. United States, 371 U.S. 342, 347 (1963).

273 Powers v. United States, 223 U.S. 303 (1912). 274 United States v. Carignan, 342 U.S. 36, 41 (1951). See also McNabb v.

United States, 318 U.S. 332, 346 (1943); Brown v. Mississippi, 297 U.S. 278, 285 (1936); Stein v. New York, 346 U.S. 156, 191 n.35 (1953).

275 318 U.S. 332 (1943). See also Anderson v. United States, 318 U.S. 350 (1943).

such evidence, namely, that one who is innocent will not imperil his safety or prejudice his interests by an untrue statement, ceases when the confession appears to have been made either in con- sequence of inducements of a temporal nature, held out by one in authority, touching the charge preferred, or because of a threat or promise by or in the presence of such person, which, operating upon the fears or hopes of the accused, in reference to the charge, deprives him of that freedom of will or self-control essential to make his confession voluntary within the meaning of the law.’’ 267 Subsequent cases followed essentially the same line of thought. 268 Then, in Bram v. United States, 269 the Court assimilated the com- mon-law rule thus mentioned as a command of the Fifth Amend- ment and indicated that henceforth a broader standard for judging admissibility was to be applied. 270 Though this rule 271 and the case itself were subsequently approved in several cases, 272 the Court could hold within a few years that a confession should not be ex- cluded merely because the authorities had not warned a suspect of his right to remain silent, 273 and more than once later Courts could doubt ‘‘whether involuntary confessions are excluded from federal criminal trials on the ground of a violation of the Fifth Amend- ment’s protection against self-incrimination, or from a rule that forced confessions are untrustworthy. . . .’’ 274

McNabb-Mallory Doctrine.—Perhaps one reason the Court did not squarely confront the application of the self-incrimination clause to police interrogation and the admissibility of confessions in federal courts was that in McNabb v. United States 275 it promul- gated a rule excluding confessions obtained after an ‘‘unnecessary

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276 In Upshaw v. United States, 335 U.S. 410 (1948), the Court rejected lower court interpretations that delay in arraignment was but one factor in determining the voluntariness of a confession, and held that a confession obtained after a thirty- hour delay was inadmissible per se. Mallory v. United States, 354 U.S. 449 (1957), held that any confession obtained during an unnecessary delay in arraignment was inadmissible. A confession obtained during a lawful delay before arraignment was admissible. United States v. Mitchell, 322 U.S. 65 (1944).

277 McNabb v. United States, 318 U.S. 332, 340 (1943); Upshaw v. United States, 335 U.S. 410, 414 n.2 (1948). Burns v. Wilson, 346 U.S. 137, 145 n.12 (1953), indicated that because the Court had no supervisory power over courts-martial, the rule did not apply in military courts.

278 Gallegos v. Nebraska, 342 U.S. 55, 60, 63–64, 71–73 (1951); Stein v. New York, 346 U.S. 156, 187–88 (1953); Culombe v. Connecticut, 367 U.S. 568, 599–602 (1961) (Justice Frankfurter announcing judgment of the Court).

279 Rule 5(a) requiring prompt arraignment was promulgated in 1946, but the Court in McNabb relied on predecessor statutes, some of which required prompt ar- raignment. Cf. Mallory v. United States, 354 U.S. 449, 451–54 (1957). Rule 5(b) re- quires that the magistrate at arraignment must inform the suspect of the charge against him, must warn him that what he says may be used against him, must tell him of his right to counsel and his right to remain silent, and must also provide for the terms of bail.

280 McNabb v. United States, 318 U.S. 332, 343 (1943); Mallory v. United States, 354 U.S. 449, 452–53 (1957).

281 The provision was part of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 210, 18 U.S.C. § 3501(c).

282 Brown v. Mississippi, 297 U.S. 278 (1936). ‘‘[T]he question of the right of the State to withdraw the privilege against self-incrimination is not here involved. The compulsion to which the quoted statements refer is that of the processes of justice by which the accused may be called as a witness and required to testify. Compulsion by torture to extort a confession is a different matter. . . . It would be difficult to conceive of methods more revolting to the sense of justice than those taken to pro- cure the confessions of these petitioners, and the use of the confessions thus ob- tained as the basis for conviction and sentence was a clear denial of due process.’’ Id. at 285, 286.

delay’’ in presenting a suspect for arraignment after arrest. 276 This rule, developed pursuant to the Court’s supervisory power over the lower federal courts 277 and hence not applicable to the States as a constitutional rule would have been, 278 was designed to imple- ment the guarantees assured to a defendant by the Federal Rules of Criminal Procedure, 279 and was clearly informed with concern over incommunicado interrogation and coerced confessions. 280 While the Court never attempted to specify a minimum time after which delay in presenting a suspect for arraignment would invali- date confessions, Congress in 1968 legislated to set a six-hour pe- riod for interrogation following arrest before the suspect must be presented. 281

State Confession Cases.—In its first encounter with a confes- sion case arising from a state court, the Supreme Court set aside a conviction based solely on confessions of the defendants which had been extorted from them through repeated whippings with ropes and studded belts. 282 For some thirty years thereafter the Court attempted through a consideration of the ‘‘totality of the cir-

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283 Culombe v. Connecticut, 367 U.S. 568, 570–602 (1961) (announcing judgment of the Court).

284 367 U.S. at 602. 285 ‘‘The inquiry whether, in a particular case, a confession was voluntarily or

involuntarily made involves, at the least, a three-phased process. First, there is the business of finding the crude historical facts, the external ‘phenomenological’ occur- rences and events surrounding the confession. Second, because the concept of ‘volun- tariness’ is one which concerns a mental state, there is the imaginative recreation, largely inferential, of internal, ‘psychological’ fact. Third, there is the application to this psychological fact of standards for judgment informed by the larger legal con- ceptions ordinarily characterized as rules of law but which, also, comprehend both induction from, and anticipation of, factual circumstances.’’ 367 U.S. at 603. See De- velopments in the Law—Confessions, 79 HARV. L. REV. 935, 973–82 (1966).

286 Brown v. Mississippi, 297 U.S. 278 (1936). 287 309 U.S. 227 (1940). 288 322 U.S. 143 (1944). Dissenting, Justices Jackson, Frankfurter, and Roberts

protested that ‘‘interrogation per se is not, while violence per se is, an outlaw.’’ A confession made after interrogation was not truly ‘‘voluntary’’ because all ques- tioning is ‘‘inherently coercive,’’ because it puts pressure upon a suspect to talk. Thus, in evaluating a confession made after interrogation, the Court must, they in- sisted, determine whether the suspect was in possession of his own will and self-

cumstances’’ surrounding interrogation to determine whether a confession was ‘‘voluntary’’ and admissible or ‘‘coerced’’ and inad- missible. During this time, the Court was balancing, in Justice Frankfurter’s explication, a view that police questioning of suspects was indispensable in solving many crimes, on the one hand, with the conviction that the interrogation process is not to be used to overreach persons who stand helpless before it. 283 ‘‘The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of volun- tariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to con- fess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically im- paired, the use of his confession offends due process.’’ 284 Obviously, a court seeking to determine whether the making of a confession was voluntary operated under a severe handicap, inasmuch as the interrogation process was in secret with only police and the suspect witness to it, and inasmuch as the concept of voluntariness referred to the defendant’s mental condition. 285 Despite, then, a bountiful number of cases, binding precedents were few.

On the one hand, many of the early cases disclosed rather clear instances of coercion of a nature that the Court could little doubt produced involuntary confessions. Not only physical tor- ture, 286 but other overtly coercive tactics as well have been con- demned. Chambers v. Florida 287 held that five days of prolonged questioning following arrests without warrants and incommunicado detention made the subsequent confessions involuntary. Ashcraft v. Tennessee 288 held inadmissible a confession obtained near the end

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control and not look alone to the length or intensity of the interrogation. They ac- cused the majority of ‘‘read[ing] an indiscriminating hostility to mere interrogation into the Constitution’’ and preparing to bar all confessions made after questioning. Id. at 156. A possible result of the dissent was the decision in Lyons v. Oklahoma, 322 U.S. 596 (1944), which stressed deference to state-court factfinding in assessing the voluntariness of confessions.

289 316 U.S. 547 (1942). See also Canty v. Alabama, 309 U.S. 629 (1940); White v. Texas, 310 U.S. 530 (1940); Lomax v. Texas, 313 U.S. 544 (1941); Vernon v. Ala- bama, 313 U.S. 540 (1941).

290 Blackburn v. Alabama, 361 U.S. 199, 206 (1960). 291 Lisenba v. California, 314 U.S. 219 (1941). 292 Watts v. Indiana, 338 U.S. 49 (1949) (Suspect held incommunicado without

arraignment for seven days without being advised of his rights. He was held in soli- tary confinement in a cell with no place to sleep but the floor and questioned each day except Sunday by relays of police officers for periods ranging in duration from three to nine-and-one-half hours); Turner v. Pennsylvania, 338 U.S. 62 (1949) (sus- pect held on suspicion for five days without arraignment and without being advised of his rights. He was questioned by relays of officers for periods briefer than in Watts during both days and nights); Harris v. South Carolina, 338 U.S. 68 (1949) (Suspect in murder case arrested in Tennessee on theft warrant, taken to South Carolina, and held incommunicado. He was questioned for three days for periods as long as 12 hours, not advised of his rights, not told of the murder charge, and de- nied access to friends and family while being told his mother might be arrested for theft). Justice Jackson dissented in the latter two cases, willing to hold that a con- fession obtained under lengthy and intensive interrogation should be admitted short of a showing of violence or threats of it and especially if the truthfulness of the con- fession may be corroborated by independent means. 338 U.S. at 57.

293 346 U.S. 156 (1953).

of a 36-hour period of practically continuous questioning, under powerful electric lights, by relays of officers, experienced investiga- tors, and highly trained lawyers. Similarly, Ward v. Texas, 289 void- ed a conviction based on a confession obtained from a suspect who had been arrested illegally in one county and brought some 100 miles away to a county where questioning began, and who had then been questioned continuously over the course of three days while being driven from county to county and being told falsely of a danger of lynching. ‘‘Since Chambers v. State of Florida, . . . this Court has recognized that coercion can be mental as well as phys- ical and that the blood of the accused is not the only hallmark of an unconstitutional inquisition. A number of cases have dem- onstrated, if demonstrations were needed, that the efficiency of the rack and thumbscrew can be matched, given the proper subject, by more sophisticated modes of ‘persuasion.’ A prolonged interrogation of the accused who is ignorant of his rights and who has been cut off from the moral support of friends and relatives is not infre- quently an effective technique of terror.’’ 290

While the Court would not hold that prolonged questioning by itself made a resultant confession involuntary, 291 it did increas- ingly find coercion present even in intermittent questioning over a period of days of incommunicado detention. 292 In Stein v. New York, 293 however, the Court affirmed convictions of experienced

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294 346 U.S. at 185. 295 373 U.S. 503 (1963) (confession obtained some 16 hours after arrest but in-

terrogation over this period consumed little more than two hours; he was refused in his requests to call his wife and told that his cooperation was necessary before he could communicate with his family).

296 373 U.S. at 514. See also Spano v. New York, 360 U.S. 315 (1959). (After eight hours of almost continuous questioning, suspect was induced to confess by rookie policeman who was a childhood friend and who played on suspect’s sym- pathies by falsely stating that his job as a policeman and the welfare of his family was at stake); Rogers v. Richmond, 365 U.S. 534 (1961) (suspect resisted ques- tioning for six hours but yielded when officers threatened to bring his invalid wife to headquarters). More recent cases include Davis v. North Carolina, 384 U.S. 737 (1966) (escaped convict held incommunicado 16 days but periods of interrogation each day were about an hour each); Greenwald v. Wisconsin, 390 U.S. 519 (1968); Darwin v. Connecticut, 391 U.S. 346 (1968).

297 Gallegos v. Colorado, 370 U.S. 49 (1962); Blackburn v. Alabama, 361 U.S. 199 (1960); Fikes v. Alabama, 352 U.S. 191 (1957); Payne v. Arkansas, 356 U.S. 560 (1958); Reck v. Pate, 367 U.S. 433 (1961); Culombe v. Connecticut, 367 U.S. 568 (1961). The suspect in Spano v. New York, 360 U.S. 315 (1959), was a 25-year-old foreigner with a history of emotional instability. The fact that the suspect was a woman was apparently significant in Lynumn v. Illinois, 372 U.S. 528 (1963), in which officers threatened to have her children taken from her and to have her taken off the welfare relief rolls.

298 Colorado v. Connelly, 479 U.S. 157 (1986). 299 E.g., Leyra v. Denno, 347 U.S. 556 (1954) (confession obtained by psychiatrist

trained in hypnosis from a physically and emotionally exhausted suspect who had

criminals who had confessed after twelve hours of intermittent questioning over a period of thirty-two hours of incommunicado de- tention. While the questioning was less intensive than in the prior cases, Justice Jackson for the majority stressed that the correct ap- proach was to balance ‘‘the circumstances of pressure against the power of resistance of the person confessing. What would be over- powering to the weak of will or mind might be utterly ineffective against an experienced criminal.’’ 294 But by the time Haynes v. Washington 295 was decided, holding inadmissible a confession made by an experienced criminal because of the ‘‘unfair and inher- ently coercive context’’ in which the statement was made, it was clear that the Court was adhering to a rule which found coercion in the fact of prolonged interrogation without regard to the indi- vidual characteristics of the suspect. 296 However, the age and intel- ligence of suspects have been repeatedly cited by the Court in ap- propriate cases as demonstrating the particular susceptibility of the suspects to even mild coercion. 297 But a suspect’s mental state alone—even insanity—is insufficient to establish involuntariness absent some coercive police activity. 298

Where, however, interrogation was not so prolonged that the Court would deem it ‘‘inherently coercive,’’ the ‘‘totality of the cir- cumstances’’ was looked to in determining admissibility. Although in some of the cases a single factor may well be thought to stand out as indicating the involuntariness of the confession, 299 generally

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already been subjected to three days of interrogation); Townsend v. Sain, 372 U.S. 293 (1963) (suspect was administered drug with properties of ‘‘truth serum’’ to re- lieve withdrawal pains of narcotics addiction, although police probably were not aware of drug’s side effects).

300 E.g., Johnson v. New Jersey, 384 U.S. 719 (1966); Davis v. North Carolina, 384 U.S. 737 (1966); Ashdown v. Utah, 357 U.S. 426 (1958); Thomas v. Arizona, 356 U.S. 390 (1958).

301 Wong Sun v. United States, 371 U.S. 471 (1963). 302 Fahy v. Connecticut, 375 U.S. 85 (1963). 303 United States v. Bayer, 331 U.S. 532 (1947); Lyons v. Oklahoma, 322 U.S.

596 (1944); Leyra v. Denno, 347 U.S. 556 (1954); Darwin v. Connecticut, 391 U.S. 346 (1968).

304 384 U.S. 436 (1966). 305 3 J. WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVI-

DENCE § 882, at 246 (3d ed. 1940). 306 Brown v. Mississippi, 297 U.S. 278 (1936); Chambers v. Florida, 309 U.S. 227

(1940); White v. Texas, 310 U.S. 530 (1940). 307 Hopt v. Utah, 110 U.S. 574 (1884); Wilson v. United States, 162 U.S. 613

(1896). 308 314 U.S. 219, 236 (1941).

the recitation of factors, including not only the age and intelligence of the suspect but also such things as the illegality of the arrest, the incommunicado detention, the denial of requested counsel, the denial of access to friends, the employment of trickery, and other things, seemed not to rank any factor above the others. 300 Of course, confessions may be induced through the exploitation of some illegal action, such as an illegal arrest 301 or an unlawful search and seizure, 302 and when that occurs the confession is inad- missible. Where police obtain a subsequent confession after obtain- ing one that is inadmissible as involuntary, the Court will not as- sume that the subsequent confession was similarly involuntary, but will independently evaluate whether the coercive actions which produced the first continued to produce the later confession. 303

From the Voluntariness Standard to Miranda.—Invoca- tion by the Court of a self-incrimination standard for judging the fruits of police interrogation was no unheralded novelty in Miranda v. Arizona. 304 The rationale of the confession cases changed over time to one closely approximating the foundation purposes the Court has attributed to the self-incrimination clause. Historically, the basis of the rule excluding coerced and involuntary confessions was their untrustworthiness, their unreliability. 305 It appears that this basis informed the Court’s judgment in the early state confes- sion cases 306 as it had in earlier cases from the lower federal courts. 307 But in Lisenba v. California, 308 Justice Roberts drew a distinction between the confession rule and the standard of due process. ‘‘[T]he fact that the confessions have been conclusively ad- judged by the decision below to be admissible under State law, not- withstanding the circumstances under which they were made, does not answer the question whether due process was lacking. The aim

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309 Compare Ashcraft v. Tennessee, 322 U.S. 143 (1944), with Lyons v. Okla- homa, 322 U.S. 596 (1944), and Malinski v. New York, 324 U.S. 401 (1945). In Watts v. Indiana, 338 U.S. 49 (1949), Harris v. South Carolina, 338 U.S. 68 (1949), and Turner v. Pennsylvania, 338 U.S. 62 (1949), five Justices followed the due proc- ess-fairness standard while four adhered to a trustworthiness rationale. See 338 U.S. at 57 (Justice Jackson concurring and dissenting). In Stein v. New York, 346 U.S. 156, 192 (1953), the trustworthiness rationale had secured the adherence of six Justices. The primary difference between the two standards is the admissibility under the trustworthiness standard of a coerced confession if its trustworthiness can be established, if, that is, it can be corroborated.

310 365 U.S. 534, 540–41 (1961). Similar expressions may be found in Spano v. New York, 360 U.S. 315 (1959), and Blackburn v. Alabama, 361 U.S. 199 (1960). See also Culombe v. Connecticut, 367 U.S. 568, 583 n.25 (1961), in which Justice Frankfurter, announcing the judgment of the Court, observed that ‘‘the conceptions underlying the rule excluding coerced confessions and the privilege again self-in- crimination have become, to some extent, assimilated.’’

311 Culombe v. Connecticut, 367 U.S. 568, 601 (1961). The same thought informs the options of the Court in Haynes v. Washington, 373 U.S. 503 (1963).

312 378 U.S. 1 (1964).

of the rule that a confession is inadmissible unless it was volun- tarily made is to exclude false evidence. Tests are invoked to deter- mine whether the inducement to speak was such that there is a fair risk the confession is false. . . . The aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence, whether true or false.’’ Over the next several years, while the Justices con- tinued to use the terminology of voluntariness, the Court accepted at different times the different rationales of trustworthiness and constitutional fairness. 309

Ultimately, however, those Justices who chose to ground the exclusionary rule on the latter consideration predominated, so that in Rogers v. Richmond 310 Justice Frankfurter spoke for six other Justices in writing: ‘‘Our decisions under that [Fourteenth] Amend- ment have made clear that convictions following the admission into evidence of confessions which are involuntary, i.e., the product of coercion, either physical or psychological, cannot stand. This is so not because such confessions are unlikely to be true but because the methods used to extract them offend an underlying principle in the enforcement of our criminal law: that ours is an accusatorial and not an inquisitorial system—a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charges against an accused out of his own mouth.’’ Nevertheless, the Justice said in another case, ‘‘[n]o single litmus-paper test for constitutionally impermissible interro- gation has been evolved.’’ 311 Three years later, however, in Malloy v. Hogan, 312 in the process of applying the self-incrimination clause to the States, Justice Brennan for the Court reinterpreted the line

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313 297 U.S. 278 (1936). 314 314 U.S. 219 (1941). 315 Malloy v. Hogan, 378 U.S. 1, 6–7 (1964). Protesting that this was ‘‘post

facto reasoning at best,’’ Justice Harlan contended that the ‘‘majority is simply wrong’’ in asserting that any of the state confession cases represented anything like a self-incrimination basis for the conclusions advanced. Id. at 17–19. Bram v. United States, 168 U.S. 532 (1897), is discussed under ‘‘Confessions: Police Interrogation, Due Process, and Self-Incrimination,’’ supra.

316 378 U.S. 478 (1964). Joining Justice Goldberg in the majority were Chief Jus- tice Warren and Justices Black, Douglas, and Brennan. Justices Clark, Harlan, Stewart, and White dissented. Id. at 492, 493, 495.

317 Previously, it had been held that a denial of a request to consult counsel was but one of the factors to be considered in assessing voluntariness. Crooker v. Cali- fornia, 357 U.S. 433 (1958); Cicenia v. Lagay, 357 U.S. 504 (1958). Chief Justice Warren and Justices Black, Douglas, and Brennan were prepared in these cases to impose a requirement of right to counsel per se. Post-indictment interrogation with- out the presence of counsel seemed doomed after Spano v. New York, 360 U.S. 315 (1959), and this was confirmed in Massiah v. United States, 377 U.S. 201 (1964). See discussion of ‘‘Custodial Interrogation’’ under Sixth Amendment, infra.

318 Escobedo v. Illinois, 378 U.S. 478, 485, 491 (1964) (both pages containing as- sertions of the suspect’s ‘‘absolute right to remain silent’’ in the context of police warnings prior to interrogation).

of cases since Brown v. Mississippi 313 to conclude that the Court had initially based its rulings on the common-law confession ration- ale, but that beginning with Lisenba v. California, 314 a ‘‘federal standard’’ had been developed. The Court had engaged in a ‘‘shift [which] reflects recognition that the American system of criminal prosecution is accusatorial, not inquisitorial, and that the Fifth Amendment privilege is its essential mainstay.’’ Today, continued Justice Brennan, ‘‘the admissibility of a confession in a state crimi- nal prosecution is tested by the same standard applied in federal prosecutions since 1897,’’ when Bram v. United States had an- nounced that the self-incrimination clause furnished the basis for admitting or excluding evidence in federal courts. 315

One week after the decision in Malloy v. Hogan, the Court de- fined the rules of admissibility of confessions in different terms; while it continued to emphasize voluntariness, it did so in self-in- crimination terms rather than in due process terms. In Escobedo v. Illinois, 316 it held inadmissible the confession obtained from a suspect in custody who had repeatedly requested and had repeat- edly been refused an opportunity to consult with his retained coun- sel, who was present at the police station seeking to gain access to Escobedo. 317 While Escobedo appeared in the main to be a Sixth Amendment right-to-counsel case, the Court at several points em- phasized, in terms that clearly implicated self-incrimination consid- erations, that the suspect had not been warned of his constitutional rights. 318

Miranda v. Arizona.—The Sixth Amendment holding of Escobedo was deemphasized and the Fifth Amendment self-incrimi-

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319 384 U.S. 436, 444–45 (1966). In Johnson v. New Jersey, 384 U.S. 719 (1966), the Court held that neither Escobedo nor Miranda was to be applied retroactively. In cases where trials commenced after the decisions were announced, the due proc- ess ‘‘totality of circumstances’’ test was to be the key. Cf. Davis v. North Carolina, 384 U.S. 737 (1966).

nation rule made preeminent in Miranda v. Arizona, 319 in which the Court summarized its holding as follows: ‘‘[T]he prosecution may not use statements, whether exculpatory or inculpatory, stem- ming from custodial interrogation of the defendant unless it dem- onstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a per- son has been taken into custody or otherwise deprived of his free- dom of action in any significant way. As for the procedural safe- guards to be employed, unless other fully effective means are de- vised to inform accused persons of their right of silence and to as- sure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, how- ever, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indi- cates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have an- swered some questions or volunteered some statements on his own does not deprive him of the right of refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.’’

The basis for the Court’s conclusions was the determination that police interrogation as conceived and practiced was inherently coercive and that this compulsion, though informal and legally sanctionless, was contrary to the protection assured by the self-in- crimination clause, the protection afforded in a system of criminal justice which convicted a defendant on the basis of evidence inde- pendently secured and not out of his own mouth. In the Court’s view, this had been the law in the federal courts since 1897, and the application of the clause to the States in 1964 necessitated the application of the principle in state courts as well. Therefore, the clause requires that police interrogation practices be so structured as to secure to suspects that they not be stripped of the ability to

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320 Justices Clark, Harlan, Stewart, and White dissented, finding no historical support for the application of the clause to police interrogation and rejecting the pol- icy considerations for the extension put forward by the majority. Miranda v. Ari- zona, 384 U.S. 436, 499, 504, 526 (1966). Justice White argued that while the Court’s decision was not compelled or even strongly suggested by the Fifth Amend- ment, its history, and the judicial precedents, this did not preclude the Court from making new law and new public policy grounded in reason and experience, but he contended that the change made in Miranda was ill-conceived because it arose from a view of interrogation as inherently coercive and because the decision did not ade- quately protect society’s interest in detecting and punishing criminal behavior. Id. at 531–45.

321 384 U.S. at 457. For the continuing recognition of the difference between the traditional involuntariness test and the Miranda test, see Michigan v. Tucker, 417 U.S. 433, 443–46 (1974); Mincey v. Arizona, 437 U.S. 385, 396–402 (1978).

322 Johnson v. New Jersey, 384 U.S. 719, 731 (1966). 323 See, e.g., Rhode Island v. Innis, 446 U.S. 291, 304 (1980) (Chief Justice Burg-

er concurring) (‘‘The meaning of Miranda has become reasonably clear and law en- forcement practices have adjusted to its strictures; I would neither overrule Mi- randa, disparage it, nor extend it at this late date.’’)

make a free and rational choice between speaking and not speak- ing. The warnings and the provision of counsel were essential, the Court said, to this type of system. 320 ‘‘In these cases,’’ said Chief Justice Warren, ‘‘we might not find the defendants’ statements to have been involuntary in traditional terms.’’ 321 The acknowledg- ment that the decision considerably expanded upon previous doc- trine, even if the assimilation of self-incrimination values by the confession-exclusion rule be considered complete, was more clearly made a week after Miranda when, in denying retroactivity to that case and to Escobedo, the Court asserted that law enforcement offi- cers had relied justifiably upon prior cases, ‘‘now no longer bind- ing,’’ which treated the failure to warn a suspect of his rights or the failure to grant access to counsel as one of the factors to be con- sidered. 322 It was thus not the application of the self-incrimination clause to police interrogation in Miranda that constituted a major change from precedent but rather the series of warnings and guar- antees which the Court imposed as security for the observance of the privilege.

While the Court’s decision rapidly became highly controversial and the source of much political agitation, including a prominent role in the 1968 presidential election, the Court has continued to adhere to it, 323 albeit not without considerable qualification. For years, the constitutional status of the Miranda warnings was clouded in uncertainty. Had the Court announced a constitutional rule, or merely set forth supervisory rules that could be superseded by statutory rules? The fact that Miranda itself applied the rules to a state court proceeding, and that the Court in subsequent cases consistently applied the warnings to state proceedings, was strong evidence of constitutional moorings. In 1968, however, Congress en-

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324 Pub. L. No. 90-351, § 701(a), 82 Stat. 210, 18 U.S.C. § 3501. See S. Rep. No. 1097, 90th Cong., 2d Sess. 37-53 (1968). An effort to enact a companion measure applicable to the state courts was defeated.

325 New York v. Quarles, 467 U.S. 549, 653 (1984). 326 Michigan v. Tucker, 417 U.S. 433, 444 (1974). 327 , 530 U.S. 428 (2000). 328 530 U.S. at 438. 329 530 U.S. at 439 (quoting from Miranda, 384 U.S. at 441-42). 330 530 U.S. at 443.

acted a statute designed to set aside Miranda in the federal courts and to reinstate the traditional voluntariness test. 324 The statute lay unimplemented, for the most part, due to constitutional doubts about it. The Court also created exceptions to the Miranda warn- ings over the years, and referred to the warnings as ‘‘prophy- lactic’’ 325 and ‘‘not themselves rights protected by the Constitu- tion.’’ 326 There were even hints that some Justices might be willing to overrule the decision.

In Dickerson v. United States, 327 the Court resolved the basic issue, holding that Miranda was a constitutional decision that could not be overturned by statute, and consequently that 18 U.S.C. § 3501 was unconstitutional. Application of Miranda warn- ings to state proceedings necessarily implied a constitutional base, the Court explained, since federal courts ‘‘hold no supervisory au- thority over state judicial proceedings.’’ 328 Moreover, Miranda itself had purported to ‘‘give concrete constitutional guidance to law en- forcement agencies and courts to follow.’’ 329 That the Miranda rules are constitution-based does not mean that they are ‘‘immu- table,’’ however. The Court repeated its invitation for legislative ac- tion that would be ‘‘at least as effective’’ in protecting a suspect’s right to remain silent during custodial interrogation. Section 3501, however, merely reinstated the ‘‘totality-of-the-circumstances’’ rule held inadequate in Miranda, so that provision could not be consid- ered as effective as the Miranda warnings.

The Dickerson Court also rejected a request to overrule Mi- randa. ‘‘Whether or not we would agree with Miranda’s reasoning and its resulting rule, were we addressing the issue in the first in- stance,’’ Chief Justice Rehnquist wrote for a seven-Justice majority, ‘‘the principles of stare decisis weigh heavily against overruling it now.’’ There was no special justification for overruling the decision; subsequent cases had not undermined the decision’s doctrinal underpinnings, but rather had ‘‘reaffirm[ed]’’ its ‘‘core ruling.’’ Moreover, Miranda warnings had ‘‘become so embedded in routine police practice [that they] have become part of our national cul- ture.’’ 330

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331 In Michigan v. Tucker, 417 U.S. 433, 439 (1974), the Court had suggested a distinction between a constitutional violation and a violation of ‘‘the prophylactic rules developed to protect that right.’’ The actual holding in Tucker, however, had turned on the fact that the interrogation had preceded the Miranda decision and that warnings—albeit not full Miranda warnings—had been given.

332 428 U.S. 465 (1976). 333 507 U.S. 680 (1993). 334 367 U.S. 643 (1961). 335 507 U.S. at 691–92. 336 507 U.S. at 693. 337 Miranda v. Arizona, 384 U.S. 436, 444 (1966). 338 Mathis v. United States, 391 U.S. 1 (1968) (suspect in state jail questioned

by federal officer about a federal crime). But even though a suspect is in jail, hence in custody ‘‘in a technical sense,’’ a conversation with an undercover agent does not create a coercive, police-dominated environment and does not implicate Miranda if the suspect does not know that he is conversing with a government agent. Illinois v. Perkins, 496 U.S. 292 (1990).

339 Orozco v. Texas, 394 U.S. 324 (1969) (four policemen entered suspect’s bed- room at 4 a.m. and questioned him; though not formally arrested, he was in cus- tody).

Although the Court had suggested in 1974 that most Mi- randa claims could be disallowed in federal habeas corpus cases, 331 such a course was squarely rejected in 1993. The Stone v. Pow- ell 332 rule, precluding federal habeas corpus review of a state pris- oner’s claim that his conviction rests on evidence obtained through an unconstitutional search or seizure, does not extend to preclude federal habeas review of a state prisoner’s Miranda claim, the Court ruled in Withrow v. Williams. 333 The Miranda rule differs from the Mapp v. Ohio 334 exclusionary rule denied enforcement in Stone, the Court explained. While both are prophylactic rules, Mi- randa unlike Mapp, safeguards a fundamental trial right, the privilege against self-incrimination. Miranda also protects against the use at trial of unreliable statements, hence, unlike Mapp, re- lates to the correct ascertainment of guilt. 335 A further consider- ation was that eliminating review of Miranda claims would not sig- nificantly reduce federal habeas review of state convictions, since most Miranda claims could be recast in terms of due process deni- als resulting from admission of involuntary confessions. 336

In any event, the Court has established several lines of deci- sions interpreting Miranda.

First, persons who are questioned while they are in custody must be given the Miranda warnings. Miranda applies to ‘‘ques- tioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of ac- tion in any significant way.’’ 337 Clearly, a suspect detained in jail is in custody, even if the detention is for some offense other than the one about which he is questioned. 338 If he is placed under ar- rest, even if he is in his own home, the questioning is custodial. 339

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340 Oregon v. Mathiason, 429 U.S. 492 (1977) (suspect came voluntarily to police station to be questioned, he was not placed under arrest while there, and he was allowed to leave at end of interview, even though he was named by victim as culprit, questioning took place behind closed doors, and he was falsely informed his finger- prints had been found at scene of crime). See also Minnesota v. Murphy, 465 U.S. 420 (1984) (required reporting to probationary officer is not custodial situation).

341 Beckwith v. United States, 425 U.S. 341 (1976) (IRS agents’ interview with taxpayer in private residence was not a custodial interrogation, although inquiry had ‘‘focused’’ on him).

342 Cf. United States v. Mendenhall, 446 U.S. 544 (1980); Reid v. Georgia, 448 U.S. 438 (1980); Brown v. Texas, 443 U.S. 47 (1979); Berkemer v. McCarty, 468 U.S. 420, 440 (1984) (roadside questioning of a motorist stopped for traffic violation is not custodial interrogation until his ‘‘freedom of action is curtailed to a ‘degree asso- ciated with formal arrest’’’).

343 Stansbury v. California, 511 U.S. 318 (1994). 344 446 U.S. 291 (1980). A remarkably similar factual situation was presented

in Brewer v. Williams, 430 U.S. 387 (1977), which was decided under the Sixth Amendment. In Brewer, and also in Massiah v. United States, 377 U.S. 201 (1964), and United States v. Henry, 447 U.S. 264 (1980), the Court has had difficulty in expounding on what constitutes interrogation for Sixth Amendment counsel pur- poses. The Innis Court indicated that the definitions are not the same for each Amendment. 446 U.S. at 300 n.4.

But the fact that a suspect may be present in a police station does not, in the absence of indicia that he was in custody, mean that the questioning is custodial, 340 and the fact that he is in his home or other familiar surroundings will ordinarily lead to a conclusion that the inquiry was noncustodial. 341 As with investigative stops under the Fourth Amendment, there is a wide variety of police-citizen contacts, and the Supreme Court has not explored at any length the application of Miranda to questioning on the street and else- where in situations in which the police have not asserted authority sufficient to place the citizen in custody. 342 Whether a person is ‘‘in custody’’ is an objective test assessed in terms of how a reasonable person in the suspect’s shoes would perceive his or her freedom to leave; a police officer’s subjective and undisclosed view that a per- son being interrogated is a suspect is not relevant for Miranda pur- poses. 343

Second, persons who are interrogated while they are in custody must be given the Miranda warnings. It is not necessary under Mi- randa that the police squarely ask a question. The breadth of the interrogation concept is demonstrated in Rhode Island v. Innis. 344 There, police had apprehended the defendant as a murder suspect but had not found the weapon used. While he was being trans- ported to police headquarters in a squad car, the defendant, who had been given the Miranda warnings and had asserted he wished to consult a lawyer before submitting to questioning, was not asked questions by the officers. However, the officers engaged in con- versation among themselves, in which they indicated that a school for handicapped children was near the crime scene and that they

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345 Rhode Island v. Innis, 446 U.S. 291, 300–01 (1980). 346 446 U.S. at 302–04. Justices Marshall, Brennan, and Stevens dissented, id.

at 305, 307. Similarly, the Court found no functional equivalent of interrogation when police allowed a suspect’s wife to talk to him in the presence of a police officer who openly tape recorded the conversation. Arizona v. Mauro, 481 U.S. 520 (1987). See also Illinois v. Perkins, 496 U.S. 292 (1990) (absence of coercive environment makes Miranda inapplicable to jail cell conversation between suspect and police un- dercover agent).

347 451 U.S. 454 (1981). 348 451 U.S. at 467.

hoped the weapon was found before a child discovered it and was injured. The defendant then took them to the weapon’s hiding place.

Unanimously rejecting a contention that Miranda would have been violated only by express questioning, the Court said: ‘‘We con- clude that the Miranda safeguards come into play whenever a per- son in custody is subjected to either express questioning or its func- tional equivalent. That is to say, the term ‘interrogation’ under Mi- randa refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally at- tendant to arrest and custody) that the police should know are rea- sonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the per- ceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police.’’ 345 A divided Court then con- cluded that the officers’ conversation did not amount to a func- tional equivalent of questioning and that the evidence was admis- sible. 346

In Estelle v. Smith, 347 the Court held that a court-ordered jail- house interview with the defendant by a psychiatrist seeking to de- termine his competency to stand trial, when the defense had raised no issue of insanity or incompetency, constituted interrogation for Miranda purposes; the psychiatrist’s conclusions about the defend- ant’s dangerousness were inadmissible at the capital sentencing phase of the trial because the defendant had not been given his Mi- randa warnings prior to the interview. That the defendant had been questioned by a psychiatrist designated to conduct a neutral competency examination, rather than by a police officer, was ‘‘im- material,’’ the Court concluded, since the psychiatrist’s testimony at the penalty phase changed his role from one of neutrality to that of an agent of the prosecution. 348 Other instances of questioning in less formal contexts in which the issues of custody and interroga-

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349 Miranda v. Arizona, 384 U.S. 436, 444 (1966). See id. at 469–73. 350 384 U.S. at 444. 351 384 U.S. at 469. 352 California v. Prysock, 453 U.S. 355 (1981). Rephrased, the test is whether

the warnings ‘‘reasonably conveyed’’ a suspect’s rights, the Court adding that re- viewing courts ‘‘need not examine Miranda warnings as if construing a will or defin- ing the terms of an easement.’’ Duckworth v. Eagan, 492 U.S. 195, 203 (1989) (up- holding warning that included possibly misleading statement that a lawyer would be appointed ‘‘if and when you go to court’’).

353 Miranda v. Arizona, 384 U.S. 436, 472, 473–74 (1966). 354 451 U.S. 477 (1981).

tion intertwine, e.g., in on-the-street encounters, await explication by the Court.

Third, before a suspect in custody is interrogated, he must be given full warnings, or the equivalent, of his rights. Miranda, of course, required express warnings to be given to an in-custody sus- pect of his right to remain silent, that anything he said may be used as evidence against him, that he has a right to counsel, and that if he cannot afford counsel he is entitled to an appointed attor- ney. 349 The Court recognized that ‘‘other fully effective means’’ could be devised to convey the right to remain silent, 350 but it was firm that the prosecution was not permitted to show that an unwarned suspect knew of his rights in some manner. 351 But it is not necessary that the police give the warnings as a verbatim re- cital of the words in the Miranda opinion itself, so long as the words used ‘‘fully conveyed’’ to a defendant his rights. 352

Fourth, once a warned suspect asserts his right to silence and requests counsel, the police must scrupulously respect his assertion of right. The Miranda Court strongly stated that once a warned suspect ‘‘indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.’’ Further, if the suspect indicates he wishes the assist- ance of counsel before interrogation, the questioning must cease until he has counsel. 353 At least with respect to counsel, the Court has created practically a per se rule barring the police from con- tinuing or from reinitiating interrogation with a suspect requesting counsel until counsel is present, save only that the suspect himself may initiate further proceedings. Thus, in Edwards v. Arizona, 354 the Court ruled that Miranda had been violated when police re- initiated questioning after the suspect had requested counsel. Questioning had ceased as soon as the suspect had requested coun- sel, and the suspect had been returned to his cell. Questioning had resumed the following day only after different police officers had confronted the suspect and again warned him of his rights; the sus- pect agreed to talk and thereafter incriminated himself. Nonethe- less, the Court held, ‘‘when an accused has invoked his right to

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355 451 U.S. at 484–85. The decision was unanimous, but three concurrences ob- jected to a special rule limiting waivers with respect to counsel to suspect-initiated further exchanges. Id. at 487, 488 (Chief Justice Burger and Justices Powell and Rehnquist). In Oregon v. Bradshaw, 462 U.S. 1039 (1983), the Court held, albeit without a majority of Justices in complete agreement as to rationale, that an ac- cused who had initiated further conversations with police had knowingly and intel- ligently waived his right to have counsel present. So too, an accused who expressed a willingness to talk to police, but who refused to make a written statement without presence of counsel, was held to have waived his rights with respect to his oral statements. Connecticut v. Barrett, 479 U.S. 523 (1987). The Court has held that Edwards should not be applied retroactively to a conviction that had become final, Solem v. Stumes, 465 U.S. 638 (1984), but that Edwards does apply to cases pend- ing on appeal at the time it was decided. Shea v. Louisiana, 470 U.S. 51 (1985).

356 Arizona v. Roberson, 486 U.S. 675 (1988). By contrast, the Sixth Amendment right to counsel is offense-specific, and does not bar questioning about a crime unre- lated to the crime for which the suspect has been charged. See McNeil v. Wisconsin, 501 U.S. 171 (1991).

357 Fare v. Michael C., 442 U.S. 707 (1979) (juvenile requested to see his parole officer, rather than counsel). Also, waivers signed by the accused following Mi- randa warnings are not vitiated by police having kept from the accused information that an attorney had been retained for him by a relative. Moran v. Burbine, 475 U.S. 412 (1986).

358 Michigan v. Mosley, 423 U.S. 96 (1975) (suspect given Miranda warnings at questioning for robbery, requested cessation of interrogation, and police complied; some two hours later, a different policeman interrogated suspect about a murder, gave him a new Miranda warning, and suspect made incriminating admission; since police ‘‘scrupulously honored’’ suspect’s request, admission valid).

have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he re- sponded to further police-initiated custodial interrogation even if he has been advised of this rights. We further hold that an accused . . . , having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the au- thorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or con- versations with the police.’’ 355 The Edwards rule bars police-initi- ated questioning stemming from a separate investigation as well as questioning relating to the crime for which the suspect was ar- rested. 356

However, the suspect must specifically ask for counsel; if he re- quests the assistance of someone else he thinks may be helpful to him, that is not a valid assertion of Miranda rights. 357 Moreover, the rigid Edwards rule is not applicable to other aspects of the warnings. That is, if the suspect asserts his right to remain silent, the questioning must cease, but officers are not precluded from subsequently initiating a new round of interrogation, provided only that they again give the Miranda warnings. 358

Fifth, a properly warned suspect may waive his Miranda rights and submit to custodial interrogation. Miranda recognized that a suspect may voluntarily and knowingly give up his rights and re-

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359 Miranda v. Arizona, 384 U.S. 436, 475 (1966). 360 North Carolina v. Butler, 441 U.S. 369 (1979). 361 441 U.S. at 373. But silence, ‘‘coupled with an understanding of his rights

and a course of conduct indicating waiver,’’ may support a conclusion of waiver. Id. 362 Tague v. Louisiana, 444 U.S. 469 (1980). A knowing and intelligent waiver

need not be predicated on complete disclosure by police of the intended line of ques- tioning, hence an accused’s signed waiver following arrest for one crime is not in- validated by police having failed to inform him of intent to question him about an- other crime. Colorado v. Spring, 479 U.S. 564 (1987).

363 North Carolina v. Butler, 441 U.S. 369, 374–75 (1979) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). In Oregon v. Elstad, 470 U.S. 298 (1985), the Court held that a confession following a Miranda warning is not necessarily tainted by an earlier confession obtained without a warning, as long as the earlier confes- sion had been voluntary. And see Moran v. Burbine, 475 U.S. 412 (1986) (signed waivers following Miranda warnings not vitiated by police having kept from suspect information that attorney had been retained for him by relative).

364 Davis v. United States, 512 U.S. 452 (1994) (suspect’s statement that ‘‘maybe I should talk to a lawyer,’’ uttered after Miranda waiver and after an hour and a half of questioning, did not constitute such a clear request for an attorney when, in response to a direct follow-up question, he said ‘‘no, I don’t want a lawyer’’).

365 Miranda v. Arizona, 384 U.S. 436, 479 (1966). 366 Estelle v. Smith, 451 U.S. 454 (1981). The Court has yet to consider the ap-

plicability of the ruling in a noncapital, nonbifurcated trial case. 367 Cf. Harrison v. United States, 392 U.S. 219 (1968) (after confessions obtained

in violation of McNabb-Mallory were admitted against him, defendant took the stand to rebut them and made damaging admissions; after his first conviction was reversed, he was retried without the confessions, but the prosecutor introduced his rebuttal testimony from the first trial; Court reversed conviction because testimony was tainted by the admission of the confessions). But see Michigan v. Tucker, 417 U.S. 433 (1974). Confessions may be the poisonous fruit of other constitutional viola-

spond to questioning, but the Court cautioned that the prosecution bore a ‘‘heavy burden’’ to establish that a valid waiver had oc- curred. 359 While the waiver need not be express in order for it to be valid, 360 neither may a suspect’s silence or similar conduct con- stitute a waiver. 361 It must be shown that the suspect was com- petent to understand and appreciate the warning and to be able to waive his rights. 362 Essentially, resolution of the issue of waiver ‘‘must be determined on ‘the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’’’ 363 After a suspect has knowingly and vol- untarily waived his Miranda rights, police officers may continue questioning until and unless the suspect clearly requests an attor- ney. 364

Sixth, the admissions of an unwarned or improperly warned suspect may not be used directly against him at trial, but the Court has permitted some use for other purposes, such as impeachment. A confession or other incriminating admissions obtained in viola- tion of Miranda may not, of course, be introduced against him at trial for purposes of establishing guilt 365 or for determining the sentence, at least in bifurcated trials in capital cases, 366 and nei- ther may the ‘‘fruits’’ of such a confession or admission be used. 367

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1430 AMENDMENT 5—RIGHTS OF PERSONS

tions, such as illegal searches or arrests. E.g., Brown v. Illinois, 422 U.S. 590 (1975); Dunaway v. New York, 442 U.S. 200 (1979); Taylor v. Alabama, 457 U.S. 687 (1982).

368 Under Walter v. United States, 347 U.S. 62 (1954), the defendant not only denied the offense of which he was accused (sale of drugs), but also asserted he had never dealt in drugs. The prosecution was permitted to impeach him concerning her- oin seized illegally from his home two years before. The Court observed that the de- fendant could have denied the offense without making the ‘‘sweeping’’ assertions, as to which the government could impeach him.

369 401 U.S. 222 (1971). The defendant had denied only the commission of the offense. The Court observed that it was only ‘‘speculative’’ to think that impermis- sible police conduct would be encouraged by permitting such impeachment, a resort to deterrence analysis being contemporaneously used to ground the Fourth Amend- ment exclusionary rule, whereas the defendant’s right to testify was the obligation to testify truthfully and the prosecution could impeach him for committing perjury. See also United States v. Havens, 446 U.S. 620 (1980) (Fourth Amendment).

370 420 U.S. 714 (1975). By contrast, a defendant may not be impeached by evi- dence of his silence after police have warned him of his right to remain silent. Doyle v. Ohio, 426 U.S. 610 (1976).

371 E.g., Mincey v. Arizona, 437 U.S. 385 (1978); New Jersey v. Portash, 440 U.S. 450 (1979).

372 467 U.S. 649 (1984). 373 The Court’s opinion was joined by Chief Justice Burger and by Justices

White, Blackmun, and Powell. Justice O’Connor would have ruled inadmissible the suspect’s response, but not the gun retrieved as a result of the response, and Jus- tices Marshall, Brennan, and Stevens dissented.

The Court, in opinions which bespeak a sense of necessity to nar- rowly construe Miranda, has broadened the permissible impeach- ment purposes for which unlawful confessions and admissions may be used. 368 Thus, in Harris v. New York, 369 the Court held that the prosecution could use statements, obtained in violation of Mi- randa, to impeach the defendant’s testimony if he voluntarily took the stand and denied commission of the offense. Subsequently, in Oregon v. Hass, 370 the Court permitted impeachment use of a statement made by the defendant after police had ignored his re- quest for counsel following his Miranda warning. Such impeach- ment material, however, must still meet the standard of voluntari- ness associated with the pre-Miranda tests for the admission of confessions and statements. 371

The Court has created a ‘‘public safety’’ exception to the Mi- randa warning requirement, but has refused to create another ex- ception for misdemeanors and lesser offenses. In New York v. Quarles, 372 the Court held admissible a recently apprehended sus- pect’s response in a public supermarket to the arresting officer’s de- mand to know the location of a gun that the officer had reason to believe the suspect had just discarded or hidden in the super- market. The Court, in an opinion by Justice Rehnquist, 373 declined to place officers in the ‘‘untenable position’’ of having to make in- stant decisions as to whether to proceed with Miranda warnings and thereby increase the risk to themselves or to the public or whether to dispense with the warnings and run the risk that re-

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374 467 U.S. at 658–59. 375 Berkemer v. McCarty, 468 U.S. 420, 432 (1984). 376 468 U.S. at 434. 377 Culombe v. Connecticut, 367 U.S. 568, 603–06 (1961). 378 367 U.S. at 603. See Ashcraft v. Tennessee, 322 U.S. 143, 152–53 (1944);

Lyons v. Oklahoma, 322 U.S. 596, 602–03 (1944); Watts v. Indiana, 338 U.S. 49, 50–52 (1949); Gallegos v. Nebraska, 342 U.S. 55, 60–62 (1951); Stein v. New York, 346 U.S. 156, 180–82 (1953); Payne v. Arkansas, 356 U.S. 560, 561–62 (1958).

sulting evidence will be excluded at trial. While acknowledging that the exception itself will ‘‘lessen the desirable clarity of the rule,’’ the Court predicted that confusion would be slight: ‘‘[w]e think that police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect.’’ 374 No such compelling justification was offered for a Miranda exception for lesser offenses, however, and protecting the rule’s ‘‘simplicity and clarity’’ counseled against creating one. 375 ‘‘[A] person subjected to custodial interrogation is entitled to the benefit of the procedural safeguards enunciated in Miranda, re- gardless of the nature or severity of the offense of which he is sus- pected or for which he was arrested.’’ 376

The Operation of the Exclusionary Rule

Supreme Court Review.—The Court’s review of the question of admissibility of confessions or other incriminating statements is designed to prevent the foreclosure of the very question to be de- cided by it, the issue of voluntariness under the due process stand- ard, the issue of the giving of the requisite warnings and the subse- quent waiver, if there is one, under the Miranda rule. Recurring to Justice Frankfurter’s description of the inquiry as a ‘‘three- phased process’’ in due process cases at least, 377 it can be seen that the Court’s self-imposed rules of restraint on review of lower-court factfinding greatly influenced the process. The finding of facts sur- rounding the issue of coercion—the length of detention, cir- cumstances of interrogation, use of violence or of tricks and ruses, et cetera—is the proper function of the trial court which had the advantage of having the witnesses before it. ‘‘This means that all testimonial conflict is settled by the judgment of the state courts. Where they have made explicit findings of fact, those findings con- clude us and form the basis of our review—with the one caveat, necessarily, that we are not to be bound by findings wholly lacking support in evidence.’’ 378

However, the conclusions of the lower courts as to how the ac- cused reacted to the circumstances of his interrogation, and as to the legal significance of how he reacted, are subject to open review.

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379 Culombe v. Connecticut, 367 U.S. 568, 605 (1961). See Watts v. Indiana, 338 U.S. 49, 51 (1949); Malinski v. New York, 324 U.S. 401, 404, 417 (1945).

380 ‘‘In cases in which there is a claim of denial of rights under the Federal Con- stitution this Court is not bound by the conclusions of lower courts, but will re-ex- amine the evidentiary basis on which those conclusions are founded.’’ Niemotko v. Maryland, 340 U.S. 268, 271 (1951); Time, Inc. v. Pape, 401 U.S. 279, 284 (1971), and cases cited therein.

381 507 U.S. 680 (1993). 382 428 U.S. 465 (1976). See discussion of Stone v. Powell under the Fourth

Amendment, infra.

‘‘No more restricted scope of review would suffice adequately to protect federal constitutional rights. For the mental state of involuntariness upon which the due process question turns can never be affirmatively established other than circumstantially— that is, by inference; and it cannot be competent to the trier of fact to preclude our review simply be declining to draw inferences which the historical facts compel. Great weight, of course, is to be accorded to the inferences which are drawn by the state courts. In a dubious case, it is appropriate . . . that the state court’s deter- mination should control. But where, on the uncontested external happenings, coercive forces set in motion by state law enforcement officials are unmistakably in action; where these forces, under all the prevailing states of stress, are powerful enough to draw forth a confession; where, in fact, the confession does come forth and is claimed by the defendant to have been extorted from him; and where he has acted as a man would act who is subjected to such an extracting process—where this is all that appears in the record—a State judgment that the confession was voluntary cannot stand.’’ 379 Miranda, of course, does away with the judgments about the effect of lack of warnings, and the third phase, the legal deter- mination of the interaction of the first two phases, is determined solely by two factual determinations: whether the warnings were given and if so whether there was a valid waiver. Presumably, sup- ported determinations of these two facts by trial courts would pre- clude independent review by the Supreme Court. Yet, the Court has been clear that it may and will independently review the facts when the factfinding has such a substantial effect on constitutional rights. 380

In Withrow v. Williams, 381 the Court held that the rule of Stone v. Powell, 382 precluding federal habeas corpus review of a state prisoner’s claim that his conviction rests on evidence obtained through an unconstitutional search or seizure, does not extend to preclude federal habeas review of a state prisoner’s claim that his conviction rests on statements obtained in violation of the safe- guards mandated by Miranda.

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383 Jackson v. Denno, 378 U.S. 368, 410–23 (1964) (appendix to opinion of Jus- tice Black concurring in part and dissenting in part).

384 346 U.S. 156, 170–79 (1953). Significant to the Court’s conclusion on this matter was the further conclusion of the majority that coerced confessions were in- admissible solely because of their unreliability; if their trustworthiness could be es- tablished the utilization of an involuntary confession violated no constitutional pro- hibition. This conception was contrary to earlier cases and was subsequently repudi- ated. See Jackson v. Denno, 378 U.S. 368, 383–87 (1964).

385 378 U.S. 368 (1964). On the sufficiency of state court determinations, see Swenson v. Stidham, 409 U.S. 224 (1972); La Vallee v. Della Rose, 410 U.S. 690 (1973).

Procedure in the Trial Courts.—The Court has placed con- stitutional limitations upon the procedures followed by trial courts for determining the admissibility of confessions and other incrimi- nating admissions. Three procedures were developed over time to deal with the question of admissibility when involuntariness was claimed. By the orthodox method, the trial judge heard all the evi- dence on voluntariness in a separate and preliminary hearing, and if he found the confession involuntary the jury never received it, while if he found it voluntary the jury received it with the right to consider its weight and credibility, which consideration included the circumstances of its making. By the New York method, the judge first reviewed the confession under a standard leading to its exclusion only if he found it not possible that ‘‘reasonable men could differ over the [factual] inferences to be drawn’’ from it; oth- erwise, the jury would receive the confession with instructions to first determine its voluntariness and to consider it if it were vol- untary and to disregard it if it were not. By the Massachusetts method, the trial judge himself determined the voluntariness ques- tion and if he found the confession involuntary the jury never re- ceived it; if he found it to have been voluntarily made he permitted the jury to receive it with instructions that the jurors should make their own independent determination of voluntariness. 383

The New York method was upheld against constitutional at- tack in Stein v. New York, 384 but eleven years later a five-to-four decision in Jackson v. Denno, 385 found it inadequate to protect the due process rights of defendants. The procedure did not, the Court held, ensure a ‘‘reliable determination on the issue of voluntari- ness’’ and did not sufficiently guarantee that convictions would not be grounded on involuntary confessions. Since there was only a general jury verdict of guilty, it was impossible to determine whether the jury had first focused on the issue of voluntariness and then either had found the confession voluntary and considered it on the question of guilt or had found it involuntary, disregarded it, and reached a conclusion of guilt on wholly independent evi- dence. It was doubtful that a jury could appreciate the values

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386 385 U.S. 538 (1967). 387 Jackson v. Denno, 378 U.S. 368 and n.8 (1964); Lego v. Twomey, 404 U.S.

477, 489–90 (1972) (rejecting contention that jury should be required to pass on vol- untariness following judge’s determination).

388 Lego v. Twomey, 404 U.S. 477 (1972). 389 Colorado v. Connelly, 479 U.S. 157 (1986). 390 Solesbee v. Balkcom, 339 U.S. 9, 16 (1950) (Justice Frankfurter dissenting).

Due process is violated if a practice or rule ‘‘offends some principle of justice so root- ed in the traditions and conscience of our people as to be ranked as fundamental.’’ Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).

391 Jackman v. Rosenbaum Co., 260 U.S. 22, 31 (1922). 392 Text and commentary on this chapter may be found in W. MCKECHNIE,

MAGNA CARTA—A COMMENTARY ON THE GREAT CHARTER OF KING JOHN 375–95 (Glasgow, 2d rev. ed. 1914). The chapter became chapter 29 in the Third Reissue of Henry III in 1225. Id. at 504, and see 139–59. As expanded, it read: ‘‘No free man shall be taken or imprisoned or deprived of his freehold or his liberties or free cus- toms, or outlawed or exiled, or in any manner destroyed, nor shall we come upon him or send against him, except by a legal judgment of his peers or by the law of the land.’’ See also J. HOLT, MAGNA CARTA 226–29 (1965). The 1225 reissue also

served by the exclusion of involuntary confessions and put out of mind the content of the confession no matter what was determined with regard to its voluntariness. The rule was reiterated in Sims v. Georgia, 386 in which the Court voided a state practice permitting the judge to let the confession go to the jury for the ultimate deci- sion on voluntariness, upon an initial determination merely that the prosecution had made out a prima facie case that the confes- sion was voluntary. The Court has interposed no constitutional ob- jection to utilization of either the orthodox or the Massachusetts method for determining admissibility. 387 It has held that the pros- ecution bears the burden of establishing voluntariness by a prepon- derance of the evidence, rejecting a contention that it should be de- termined only upon proof beyond a reasonable doubt, 388 or by clear and convincing evidence. 389

DUE PROCESS

History and Scope

‘‘It is now the settled doctrine of this Court that the Due Proc- ess Clause embodies a system of rights based on moral principles so deeply imbedded in the traditions and feelings of our people as to be deemed fundamental to a civilized society as conceived by our whole history. Due Process is that which comports with the deepest notions of what is fair and right and just.’’ 390 The content of due process is ‘‘a historical product’’ 391 that traces all the way back to chapter 39 of Magna Carta, in which King John promised that ‘‘[n]o free man shall be taken or imprisoned or disseized or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.’’ 392 The phrase ‘‘due process of law’’ first appeared in a

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added to chapter 29 the language of chapter 40 of the original text: ‘‘To no one will we sell, to no one will we deny or delay right or justice.’’ This 1225 reissue became the standard text thereafter.

393 28 Edw. III, c. 3. See F. THOMPSON, MAGNA CARTA—ITS ROLE IN THE MAKING OF THE ENGLISH CONSTITUTION, 1300–1629, 86–97 (1948), recounting several statu- tory reconfirmations. Note that the limitation of ‘‘free man’’ had given way to the all-inclusive delineation.

394 W. MCKECHNIE, MAGNA CARTA—A COMMENTARY ON THE GREAT CHARTER OF KING JOHN (Glasgow, 2d rev. ed. 1914); J. HOLT, MAGNA CARTA (1965).

395 F. THOMPSON, MAGNA CARTA—ITS ROLE IN THE MAKING OF THE ENGLISH CONSTITUTION, 1300–1629 (1948).

396 SIR EDWARD COKE, INSTITUTES OF THE LAWS OF ENGLAND, Part II, 50–51 (1641). For a review of the influence of Magna Carta and Coke on the colonies and the new nation, see, e.g., A. HOWARD, THE ROAD FROM RUNNYMEDE—MAGNA CARTA AND CONSTITUTIONALISM IN AMERICA (1968).

397 The 1776 Constitution of Maryland, for example, in its declaration of rights, used the language of Magna Carta including the ‘‘law of the land’’ phrase in a sepa- rate article, 3 F. Thorpe, The Federal and State Constitutions, H. Doc. No. 357, 59th

statutory rendition of this chapter in 1354. ‘‘No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law.’’ 393 Though Magna Carta was in es- sence the result of a struggle over interest between the King and his barons, 394 this particular clause over time transcended any such limitation of scope, and throughout the fourteenth century parliamentary interpretation expanded far beyond the intention of any of its drafters. 395 The understanding which the founders of the American constitutional system, and those who wrote the due proc- ess clauses, brought to the subject they derived from Coke, who in his Second Institutes expounded the proposition that the term ‘‘by law of the land’’ was equivalent to ‘‘due process of law,’’ which he in turn defined as ‘‘by due process of the common law,’’ that is, ‘‘by the indictment or presentment of good and lawful men . . . or by writ original of the Common Law.’’ 396 The significance of both terms was procedural, but there was in Coke’s writings on chapter 29 a rudimentary concept of substantive restrictions, which did not develop in England because of parliamentary supremacy, but which was to flower in the United States.

The term ‘‘law of the land’’ was early the preferred expression in colonial charters and declarations of rights, which gave way to the term ‘‘due process of law,’’ although some state constitutions continued to employ both terms. Whichever phraseology was used, the expression seems generally to have occurred in close associa- tion with precise safeguards of accused persons, but, as is true of the Fifth Amendment here under consideration, the provision also suggests some limitations on substance because of its association with the guarantee of just compensation upon the taking of private property for public use. 397

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Congress, 2d Sess. 1688 (1909), whereas Virginia used the clause in a section of guarantees of procedural rights in criminal cases. 7 id. at 3813. New York in its con- stitution of 1821 was the first State to pick up ‘‘due process of law’’ from the United States Constitution. 5 id. at 2648.

398 Murray’s Lessee v. Hoboken Land and Improvement Co., 59 U.S. (18 How.) 272, 276 (1856). Webster had made the argument as counsel in Trustees of Dart- mouth College v. Woodward, 17 U.S. (4 Wheat.) 518 (1819). And see Chief Justice Shaw’s opinion in Jones v. Robbins, 74 Mass. (8 Gray) 329 (1857).

399 Sinking Fund Cases, 99 U.S. 700, 719 (1879). 400 Wong Wing v. United States, 163 U.S. 228, 238 (1896). 401 United States v. Ju Toy, 198 U.S. 253, 263 (1905); cf. Quon Quon Poy v.

Johnson, 273 U.S. 352 (1927). 402 South Carolina v. Katzenbach, 383 U.S. 301, 323–24 (1966). 403 Wight v. Davidson, 181 U.S. 371, 384 (1901). 404 Lovato v. New Mexico, 242 U.S. 199, 201 (1916). 405 Public Utility Comm’rs v. Ynchausti & Co., 251 U.S. 401, 406 (1920). 406 Johnson v. Eisentrager, 339 U.S. 763 (1950); In re Yamashita, 327 U.S. 1

(1946). Justices Rutledge and Murphy in the latter case argued that the due process clause applies to every human being, including enemy belligerents.

407 Compare the remarks of Justices Chase and Iredell in Calder v. Bull, 3 U.S. (3 Dall.) 386, 388–89, 398–99 (1798).

Scope of the Guaranty.—Standing by itself, the phrase ‘‘due process’’ would seem to refer solely and simply to procedure, to process in court, and therefore to be so limited that ‘‘due process of law’’ would be what the legislative branch enacted it to be. But that is not the interpretation which has been placed on the term. ‘‘It is manifest that it was not left to the legislative power to enact any process which might be devised. The article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave congress free to make any process ‘due process of law’ by its mere will.’’ 398 All persons within the territory of the United States are entitled to its protection, including corporations, 399 aliens, 400 and presump- tively citizens seeking readmission to the United States, 401 but States as such are not so entitled. 402 It is effective in the District of Columbia 403 and in territories which are part of the United States, 404 but it does not apply of its own force to unincorporated territories. 405 Nor does it reach enemy alien belligerents tried by military tribunals outside the territorial jurisdiction of the United States. 406

Early in our judicial history, a number of jurists attempted to formulate a theory of natural rights—natural justice, which would limit the power of government, especially with regard to the prop- erty rights of persons. 407 State courts were the arenas in which this struggle was carried out prior to the Civil War. Opposing the ‘‘vested rights’’ theory of protection of property were jurists who ar- gued first, that the written constitution was the supreme law of the State and that judicial review could look only to that document in scrutinizing legislation and not to the ‘‘unwritten law’’ of ‘‘natural

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408 The full account is related in E. CORWIN, LIBERTY AGAINST GOVERNMENT ch. 3 (1948). The pathbreaking decision of the era was Wynhamer v. The People, 13 N.Y. 378 (1856).

409 Scott v. Sandford, 60 U.S. (19 How.) 393, 450 (1857). 410 French v. Barber Asphalt Paving Co., 181 U.S. 324, 328 (1901).

rights,’’ and second, that the ‘‘police power’’ of government enabled legislatures to regulate the use and holding of property in the pub- lic interest, subject only to the specific prohibitions of the written constitution. The ‘‘vested rights’’ jurists thus found in the ‘‘law of the land’’ and the ‘‘due process’’ clauses of the state constitutions a restriction upon the substantive content of legislation, which pro- hibited, regardless of the matter of procedure, a certain kind or de- gree of exertion of legislative power altogether. 408 Thus, Chief Jus- tice Taney was not innovating when in his opinion in the Dred Scott case he pronounced, without elaboration, that one of the rea- sons the Missouri Compromise was unconstitutional was that an act of Congress which deprived ‘‘a citizen of his liberty or property merely because he came himself or brought his property into a par- ticular territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.’’ 409 Following the War, with the ratification of the Fourteenth Amendment’s due process clause, substantive due process interpretations were urged on the Supreme Court with regard to state legislation; first resisted, the arguments came in time to be accepted, and they imposed upon both federal and state legislation a firm judicial hand which was not to be removed until the crisis of the 1930’s, and which today in non-economic legislation continues to be reasserted.

‘‘It may prevent confusion, and relieve from repetition, if we point out that some of our cases arose under the provisions of the Fifth and others under those of the Fourteenth Amendment to the Constitution of the United States. While the language of those Amendments is the same, yet as they were engrafted upon the Constitution at different times and in widely different cir- cumstances of our national life, it may be that questions may arise in which different constructions and applications of their provisions may be proper.’’ 410 The most obvious difference between the two due process clauses is that the Fifth Amendment clause as it binds the Federal Government coexists with a number of other express provisions in the Bill of Rights guaranteeing fair procedure and non-arbitrary action, such as jury trials, grand jury indictments, and nonexcessive bail and fines, as well as just compensation, whereas the Fourteenth Amendment clause as it binds the States has been held to contain implicitly not only the standards of fair-

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411 Murray’s Lessee v. Hoboken Land and Improvement Co., 59 U.S. (18 How.) 272, 276–77, 280 (1856). A similar approach was followed in Fourteenth Amendment due process interpretation in Davidson v. City of New Orleans, 96 U.S. 97 (1878), and Munn v. Illinois, 94 U.S. 113 (1877).

ness and justness found within the Fifth Amendment’s clause but also to contain many guarantees that are expressly set out in the Bill of Rights. In that sense, the two clauses are not the same thing, but insofar as they do impose such implicit requirements of fair trials, fair hearings, and the like, which exist separately from, though they are informed with, express constitutional guarantees, the interpretation of the two clauses is substantially if not wholly the same. Save for areas in which the particularly national char- acter of the Federal Government requires separate treatment, dis- cussion of the meaning of due process is largely reserved for the section on the Fourteenth Amendment. Finally, it should be noted that some Fourteenth Amendment interpretations have been car- ried back to broaden interpretations of the Fifth Amendment’s due process clause, such as, e.g., the development of equal protection standards as an aspect of Fifth Amendment due process.

Procedural Due Process

In 1855, the Court first attempted to assess its standards for judging what was due process. At issue was the constitutionality of summary proceedings under a distress warrant to levy on the lands of a government debtor. The Court first ascertained that Congress was not free to make any process ‘‘due process.’’ ‘‘To what principles, then are we to resort to ascertain whether this process, enacted by congress, is due process? To this the answer must be twofold. We must examine the constitution itself, to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of pro- ceedings existing in the common and statute law of England, before the emigration of our ancestors and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country.’’ A survey of history disclosed that the law in England seemed always to have contained a summary method for recovering debts owned the Crown not unlike the law in question. Thus, ‘‘tested by the common and statute law of England prior to the emigration of our ances- tors, and by the laws of many of the States at the time of the adop- tion of this amendment, the proceedings authorized by the act of 1820 cannot be denied to be due process of law. . . .’’ 411

This formal approach to the meaning of due process could obvi- ously have limited both Congress and the state legislatures in the

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412 Hurtado v. California, 110 U.S. 516, 528–29 (1884). 413 110 U.S. at 531–32, 535, 537. This flexible approach has been the one fol-

lowed by the Court. E.g., Twining v. New Jersey, 211 U.S. 78 (1908); Powell v. Ala- bama, 287 U.S. 45 (1932); Palko v. Connecticut, 302 U.S. 319 (1937); Snyder v. Mas- sachusetts, 291 U.S. 97 (1934).

414 Davidson v. City of New Orleans, 96 U.S. 97, 102 (1878); Public Clearing House v. Coyne, 194 U.S. 497, 508 (1904).

415 Ex parte Wall, 107 U.S. 265, 289 (1883). 416 Compare Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18

How.) 272 (1856), with Ng Fung Ho v. White, 259 U.S. 276 (1922).

development of procedures unknown to English law. But when California’s abandonment of indictment by grand jury was chal- lenged, the Court refused to be limited by the fact that such pro- ceeding was the English practice and that Coke had indicated that it was a proceeding required as ‘‘the law of the land.’’ The meaning of the Court in Murray’s Lessee s was ‘‘that a process of law, which is not otherwise forbidden, must be taken to be due process of law, if it can show the sanction of settled usage both in England and in this country; but it by no means follows that nothing else can be due process of law.’’ To hold that only historical, traditional pro- cedures can constitute due process, the Court said, ‘‘would be to deny every quality of the law but its age, and to render it incapable of progress or improvement.’’ 412 Therefore, in observing the due process guarantee, it was concluded, the Court must look ‘‘not [to] particular forms of procedures, but [to] the very substance of indi- vidual rights to life, liberty, and property.’’ The due process clause prescribed ‘‘the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institu- tions. . . . It follows that any legal proceeding enforced by public authority, whether sanctioned by age and custom, or newly devised in the discretion of the legislative power, in furtherance of the gen- eral public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law.’’ 413

Generally.—The phrase ‘‘due process of law’’ does not nec- essarily imply a proceeding in a court or a plenary suit and trial by jury in every case where personal or property rights are in- volved. 414 ‘‘In all cases, that kind of procedure is due process of law which is suitable and proper to the nature of the case, and sanc- tioned by the established customs and usages of the courts.’’ 415 What is unfair in one situation may be fair in another. 416 ‘‘The pre- cise nature of the interest that has been adversely affected, the manner in which this was done, the reasons for doing it, the avail- able alternatives to the procedure that was followed, the protection implicit in the office of the functionary whose conduct is chal- lenged, the balance of hurt complained of and good accomplished—

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417 Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 163 (1951) (Jus- tice Frankfurter concurring).

418 Opp Cotton Mills v. Administrator, 312 U.S. 126, 152, 153 (1941). 419 321 U.S. 503, 521 (1944). 420 Consolidated Edison Co. v. NLRB, 305 U.S. 197 (1938). 421 Central of Georgia Ry. v. Wright, 207 U.S. 127 (1907); Lipke v. Lederer, 259

U.S. 557 (1922). 422 Phillips v. Commissioner, 283 U.S. 589 (1931). Cf. Springer v. United States,

102 U.S. 586, 593 (1881); Passavant v. United States, 148 U.S. 214 (1893). The col- lection of taxes is, however, very nearly a wholly unique area. See Perez v. Ledesma, 401 U.S. 82, 127 n.17 (1971) (Justice Brennan concurring in part and dissenting in part). On the limitations on private prejudgment collection, see Sniadach v. Family Finance Corp., 395 U.S. 337 (1969).

423 Wong Yang Sung v. McGrath, 339 U.S. 33, 50 (1950). But see Arnett v. Ken- nedy, 416 U.S. 134, 170 n.5 (Justice Powell), 196–99 (Justice White) (1974) (hearing before probably-partial officer at pretermination stage).

424 Margan v. United States, 304 U.S. 1, 18–19 (1938). The Court has experi- enced some difficulty with application of this principle to administrative hearings and subsequent review in selective service cases. Compare Gonzales v. United

these are some of the considerations that must enter into the judi- cial judgment.’’ 417

Administrative Proceedings: A Fair Hearing.—With re- spect to action taken by administrative agencies, the Court has held that the demands of due process do not require a hearing at the initial stage, or at any particular point in the proceeding, so long as a hearing is held before the final order becomes effective. 418 In Bowles v. Willingham, 419 the Court sustained orders fixing max- imum rents issued without a hearing at any stage, saying ‘‘where Congress has provided for judicial review after the regulations or orders have been made effective it has done all that due process under the war emergency requires.’’ But where, after consideration of charges brought against an employer by a complaining union, the National Labor Relations Board undertook to void an agree- ment between an employer and another independent union, the lat- ter was entitled to notice and an opportunity to participate in the proceedings. 420 Although a taxpayer must be afforded a fair oppor- tunity for hearing in connection with the collection of taxes, 421 col- lection by distraint of personal property is lawful if the taxpayer is allowed a hearing thereafter. 422

When the Constitution requires a hearing it requires a fair one, held before a tribunal which meets currently prevailing stand- ards of impartiality. 423 A party must be given an opportunity not only to present evidence, but also to know the claims of the oppos- ing party and to meet them. Those who are brought into contest with the Government in a quasi-judicial proceeding aimed at con- trol of their activities are entitled to be fairly advised of what the Government proposes and to be heard upon the proposal before the final command is issued. 424 But a variance between the charges

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States, 348 U.S. 407 (1955) (conscientious objector contesting his classification be- fore appeals board must be furnished copy of recommendation submitted by Depart- ment of Justice; only by being appraised of the arguments and conclusions upon which recommendations were based would he be enabled to present his case effec- tively), with United States v. Nugent, 346 U.S. 1 (1953) (in auxiliary hearing which culminated in Justice Department’s report and recommendation, it is sufficient that registrant be provided with resume of adverse evidence in FBI report because the ‘‘imperative needs of mobilization and national vigilance’’ mandate a minimum of ‘‘litigious interruption’’), and Gonzales v. United States, 364 U.S. 59 (1960) (five-to- four decision finding no due process violation when petitioner (1) at departmental proceedings was not permitted to rebut statements attributed to him by his local board, because the statements were in his file and he had opportunity to rebut both before hearing officer and appeal board, nor (2) at trial was denied access to hearing officer’s notes and report, because he failed to show any need and did have Depart- ment recommendations).

425 NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333, 349–50 (1938). 426 Western Chem. Co. v. United States, 271 U.S. 268 (1926). See also United

States v. Abilene & So. Ry., 265 U.S. 274, 288 (1924). 427 Richardson v. Perales, 402 U.S. 389 (1971). 428 Londoner v. Denver, 210 U.S. 373 (1908). 429 FCC v. WJR, 337 U.S. 265, 274–77 (1949). See also Inland Empire Council

v. Millis, 325 U.S. 697, 710 (1945). See Administrative Procedure Act, 60 Stat. 237 (1946), 5 U.S.C §§ 1001–1011. Cf. Link v. Wabash R.R., 370 U.S. 626, 637, 646 (1962), wherein the majority rejected Justice Black’s dissenting thesis that the dis- missal with prejudice of a damage suit without notice to the client and grounded upon the dilatory tactics of his attorney, and the latter’s failure to appear at a pre- trial conference, amounted to a taking of property without due process of law.

and findings will not invalidate administrative proceedings where the record shows that at no time during the hearing was there any misunderstanding as to the basis of the complaint. 425 The mere ad- mission of evidence which would be inadmissible in judicial pro- ceedings does not vitiate the order of an administrative agency. 426 A provision that such a body shall not be controlled by rules of evi- dence does not, however, justify orders without a foundation in evi- dence having rational probative force. Hearsay may be received in an administrative hearing and may constitute by itself substantial evidence in support of an agency determination, provided that there are present factors which assure the underlying reliability and probative value of the evidence and, at least in the case at hand, where the claimant before the agency had the opportunity to subpoena the witnesses and cross-examine them with regard to the evidence. 427 While the Court has recognized that in some cir- cumstances a ‘‘fair hearing’’ implies a right to oral argument, 428 it has refused to lay down a general rule that would cover all cases. 429

In the light of the historically unquestioned power of a com- manding officer summarily to exclude civilians from the area of his command, and applicable Navy regulations which confirm this au- thority, together with a stipulation in the contract between a res- taurant concessionaire and the Naval Gun Factory forbidding em-

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430 Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 900–01 (1961). Four dissenters, Justices Brennan, Black, Douglas, and Chief Justice War- ren, emphasized the inconsistency between the Court’s acknowledgment that the cook had a right not to have her entry badge taken away for arbitrary reasons, and its rejection of her right to be told in detail the reasons for such action. The case has subsequently been cited as involving an ‘‘extraordinary situation.’’ Boddie v. Connecticut, 401 U.S. 371, 379 (1971); Goldberg v. Kelly, 397 U.S. 254, 264 n.10 (1970).

Manifesting a disposition to adjudicate on non-constitutional grounds dismissals of employees under the Federal Loyalty Program, the Court, in Peters v. Hobby, 349 U.S. 331 (1955), invalidated, as in excess of its delegated authority, a finding of rea- sonable doubt as to the loyalty of the petitioner by a Loyalty Review Board which, on its own initiative, reopened his case after he had twice been cleared by his Agen- cy Loyalty Board, and arrived at its conclusion on the basis of adverse information not offered under oath and supplied by informants, not all of whom were known to the Review Board and none of whom was disclosed to petitioner for cross-examina- tion by him. The Board was found not to possess any power to review on its own initiative. Concurring, Justices Douglas and Black condemned as irreconcilable with due process and fair play the use of faceless informers whom the petitioner is un- able to confront and cross-examine.

In Cole v. Young, 351 U.S. 536 (1956), also decided on the basis of statutory interpretation, there is an intimation that grave due process issues would be raised by the application to federal employees, not occupying sensitive positions, of a meas- ure which authorized, in the interest of national security, summary suspensions and unreviewable dismissals of allegedly disloyal employees by agency heads. In Service v. Dulles, 354 U.S. 363 (1957), and Vitarelli v. Seaton, 359 U.S. 535 (1959), the Court nullified dismissals for security reasons by invoking an established rule of ad- ministrative law to the effect that an administrator must comply with procedures outlined in applicable agency regulations, notwithstanding that such regulations conform to more rigorous substantive and procedural standards than are required by Congress or that the agency action is discretionary in nature. In both of the last cited decisions, dismissals of employees as security risks were set aside by reason of the failure of the employing agency to conform the dismissal to its established security regulations. See Accardi v. Shaughnessy, 347 U.S. 260 (1954).

Again avoiding constitutional issues, the Court, in Greene v. McElroy, 360 U.S. 474 (1959), invalidated the security clearance procedure required of defense contrac- tors by the Defense Department as being unauthorized either by law or presidential order. However, the Court suggested that it would condemn, on grounds of denial of due process, any enactment or Executive Order which sanctioned a comparable department security clearance program, under which a defense contractor’s em- ployee could have his security clearance revoked without a hearing at which he had the right to confront and cross-examine witnesses. Justices Frankfurter, Harlan, and Whittaker concurred without passing on the validity of such procedure, if au- thorized. Justice Clark dissented. See also the dissenting opinions of Justices Doug- las and Black in Beard v. Stahr, 370 U.S. 41, 43 (1962), and in Williams v. Zuckert, 371 U.S. 531, 533 (1963).

431 363 U.S. 420, 493, 499 (1960). Justices Douglas and Black dissented on the ground that when the Commission summons a person accused of violating a federal

ployment on the premises of any person not meeting security re- quirements, due process was not denied by the summary exclusion on security grounds of the concessionaire’s cook, without hearing or advice as to the basis for the exclusion. The Fifth Amendment does not require a trial-type hearing in every conceivable case of govern- mental impairment of private interest. 430 Since the Civil Rights Commission acts solely as an investigative and fact-finding agency and makes no adjudications, the Court, in Hannah v. Larche, 431

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election law with a view to ascertaining whether the accusation may be sustained, it acts in lieu of a grand jury or a committing magistrate, and therefore should be obligated to afford witnesses the procedural protection herein denied. Congress sub- sequently amended the law to require that any person who is defamed, degraded, or incriminated by evidence or testimony presented to the Commission be afforded the opportunity to appear and be heard in executive session, with a reasonable num- ber of additional witnesses requested by him, before the Commission can make pub- lic such evidence or testimony. Further, any such person, before the evidence or tes- timony is released, must be afforded an opportunity to appear publicly to state his side and to file verified statements with the Commission which it must release with any report or other document containing defaming, degrading, or incriminating evi- dence or testimony. Pub. L. No. 91–521, § 4, 84 Stat. 1357 (1970), 42 U.S.C. § 1975a(e). Cf. Jenkins v. McKeithen, 395 U.S. 411 (1969).

432 United States v. Ju Toy, 198 U.S. 253, 263 (1905). See also The Japanese Immigrant Case, 189 U.S. 86, 100 (1903). Cf. United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950).

433 Shaughnessy v. United States ex rel. Mezel, 345 U.S. 206 (1953). The long continued detention on Ellis Island of a non-deportable alien does not change his status or give rise to any right of judicial review. In dissent, Justices Black and Douglas maintained that the protracted confinement on Ellis Island without a hear- ing could not be reconciled with due process. Also dissenting, Justices Frankfurter and Jackson contended that when indefinite commitment on Ellis Island becomes the means of enforcing exclusion, due process requires that a hearing precede such deprivation of liberty.

Cf. Kwong Hai Chew v. Colding, 344 U.S. 590, 596 (1953), wherein the Court, after acknowledging that resident aliens held for deportation are entitled to proce- dural due process, ruled that as a matter of law the Attorney General must accord notice of the charges and a hearing to a resident alien seaman who is sought to be ‘‘expelled’’ upon his return from a voyage overseas. The Knauff case was distin- guished on the ground that the seaman’s status was not that of an entrant, but

upheld supplementary rules of procedure adopted by the Commis- sion, independently of statutory authorization, under which state electoral officials and others accused of discrimination and sum- moned to appear at its hearings, are not apprised of the identity of their accusers, and witnesses, including the former, are not ac- corded a right to confront and cross-examine witnesses or accusers testifying at such hearings. Such procedural rights, the Court maintained, have not been granted by grand juries, congressional committees, or administrative agencies conducting purely fact-find- ing investigations in no way determining private rights.

Aliens: Entry and Deportation.—To aliens who have never been naturalized or acquired any domicile or residence in the United States, the decision of an executive or administrative offi- cer, acting within powers expressly conferred by Congress, with re- gard to whether or not they shall be permitted to enter the coun- try, is due process of law. 432 Since the status of a resident alien returning from abroad is equivalent to that of an entering alien, his exclusion by the Attorney General without a hearing, on the basis of secret, undisclosed information, also is deemed consistent with due process. 433 The complete authority of Congress in the

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rather that of a resident alien. And see Leng May Ma v. Barber, 357 U.S. 185 (1958).

434 Oceanic Navig. Co. v. Stranahan, 214 U.S. 320 (1909). 435 Kwock Jan Fat v. White, 253 U.S. 454, 457 (1920). See also Chin Yow v.

United States, 208 U.S. 8 (1908). 436 United States v. Sing Tuck, 194 U.S. 161 (1904). See also Quon Quon Poy

v. Johnson, 273 U.S. 352, 358 (1927). 437 Harisiades v. Shaughnessy, 342 U.S. 580 (1952). But this fact does not mean

that a person may be deported on the basis of judgment reached on the civil stand- ard of proof, that is, by a preponderance of the evidence. Rather, the Court has held, a deportation order may only be entered if it is found by clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true. Woodby v. INS, 385 U.S. 276 (1966). Woodby, and similar rulings, were the result of statutory interpretation and were not constitutionally compelled. Vance v. Terrazas, 444 U.S. 252, 266–67 (1980).

438 Zakonaite v. Wolf, 226 U.S. 272 (1912). See Jay v. Boyd, 351 U.S. 345 (1956), wherein the Court emphasized that suspension of deportation is not a matter of right, but of grace, like probation or parole, and accordingly an alien is not entitled to a hearing which contemplates full disclosure of the considerations, specifically, in- formation of a confidential nature pertaining to national security, which induced ad- ministrative officers to deny suspension. In four dissenting opinions, Chief Justice Warren, together with Justices Black, Frankfurter, and Douglas, found irreconcil- able with a fair hearing and due process the delegation by the Attorney General of his discretion to an inferior officer and the vesting of the latter with power to deny a suspension on the basis of undisclosed evidence which may amount to no more than uncorroborated hearsay.

439 339 U.S. 33 (1950). See also Kimm v. Rosenberg, 363 U.S. 405, 408, 410, 415 (1960), wherein the Court ruled that when, at a hearing on his petition for suspen- sion of a deportation order, an alien invoked the Fifth Amendment in response to questions as to Communist Party membership, and contended that the burden of

matter of admission of aliens justifies delegation of power to execu- tive officers to enforce the exclusion of aliens afflicted with con- tagious diseases by imposing upon the owner of the vessel bringing any such alien into the country a money penalty, collectible before and as a condition of the grant of clearance. 434 If the person seek- ing admission claims American citizenship, the decision of the Sec- retary of Labor may be made final, but it must be made after a fair hearing, however summary, and must find adequate support in the evidence. A decision based upon a record from which relevant and probative evidence has been omitted is not a fair hearing. 435 Where the statute made the decision of an immigration inspector final un- less an appeal was taken to the Secretary of the Treasury, a person who failed to take such an appeal did not, by an allegation of citi- zenship, acquire a right to a judicial hearing on habeas corpus. 436

Deportation proceedings are not criminal prosecutions within the meaning of the Bill of Rights. 437 The authority to deport is drawn from the power of Congress to regulate the entrance of aliens and impose conditions upon their continued liberty to reside within the United States. Findings of fact reached by executive offi- cers after a fair, though summary deportation hearing may be made conclusive. 438 In Wong Yang Sung v. McGrath, 439 however,

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proving such affiliation was on the Government, it was incumbent on the alien to supply the information inasmuch as the Government had no statutory discretion to suspend deportation of a Communist. Justices Douglas, Black, Brennan, and Chief Justice Warren dissented on the ground that exercise of the privilege is a neutral act, supporting neither innocence nor guilt and may not be utilized as evidence of dubious character. Justice Brennan also thought the Government was requiring the alien to prove non-membership when no one had intimated that he was a Com- munist.

440 5 U.S.C. §§ 551 et seq. 441 Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 106 (1927). See

also Mahler v. Eby, 264 U.S. 32, 41 (1924). Although in Heikkila v. Barber, 345 U.S. 229 (1953), the Court held that a de-

portation order under the Immigration Act of 1917 might be challenged only by ha- beas corpus, in Shaughnessy v. Pedreiro, 349 U.S. 48 (1955), it established that, under the Immigration Act of 1952, 8 U.S.C. § 1101, the validity of a deportation order also may be contested in an action for declaratory judgment and injunctive relief. Also, a collateral challenge must be permitted to the use of a deportation pro- ceeding as an element of a criminal offense where effective judicial review of the deportation order has been denied. United States v. Mendoza-Lopez, 481 U.S. 828 (1987).

442 198 U.S. 253 (1905). 443 Ng Fung Ho v. White, 259 U.S. 276, 281 (1922). 444 Zadvydas v. Davis, 533 U.S. 678, 691 (2001) (construing a statute so as to

avoid a ‘‘serious constitutional threat’’ (id. at 699), and recognizing a ‘‘presumptively reasonable’’ detention period of six months for removable aliens).

445 Ludecke v. Watkins, 335 U.S. 160 (1948). Three of the four dissenting Jus- tices, Douglas, Murphy, and Rutledge, argued that even an enemy alien could not be deported without a fair hearing.

the Court intimated that a hearing before a tribunal which did not meet the standards of impartiality embodied in the Administrative Procedure Act 440 might not satisfy the requirements of due process of law. To avoid such constitutional doubts, the Court construed the law to disqualify immigration inspectors as presiding officers in deportation proceedings. Except in time of war, deportation without a fair hearing or on charges unsupported by any evidence is a de- nial of due process which may be corrected on habeas corpus. 441 In contrast with the decision in United States v. Ju Toy 442 that a per- son seeking entrance to the United States was not entitled to a ju- dicial hearing on his claim of citizenship, a person arrested and held for deportation is entitled to a day in court if he denies that he is an alien. 443 Because aliens within the United States are pro- tected by due process, Congress must give ‘‘clear indication’’ of an intent to authorize indefinite detention of illegal aliens, and prob- ably must also cite ‘‘special justification,’’ as, e.g., for ‘‘suspected terrorists.’’ 444 A closely divided Court has ruled that in time of war the deportation of an enemy alien may be ordered summarily by executive action; due process of law does not require the courts to determine the sufficiency of any hearing which is gratuitously af- forded to the alien. 445

Judicial Review of Administrative Proceedings.—To the extent that constitutional rights are involved, due process of law

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446 298 U.S. 38 (1936). 447 298 U.S. at 51–54. Justices Brandeis, Stone, and Cardozo, while concurring

in the result, took exception to this proposition. 448 FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 586 (1942); FPC v. Hope Gas

Co., 320 U.S. 591 (1944). 449 FPC v. Hope Gas Co., 320 U.S. 591, 602 (1944). 450 327 U.S. 1 (1946). 451 339 U.S. 763 (1950). Justices Douglas, Black, and Burton dissented. 452 339 U.S. 103 (1950).

imports a judicial review of the action of administrative or execu- tive officers. This proposition is undisputed so far as questions of law are concerned, but the extent to which the courts should and will go in reviewing determinations of fact has been a highly con- troversial issue. In St. Joseph Stock Yards Co. v. United States, 446 the Court held that upon review of an order of the Secretary of Ag- riculture establishing maximum rates for services rendered by a stockyard company, due process required that the court exercise its independent judgment upon the facts to determine whether the rates were confiscatory. 447 Subsequent cases sustaining rate orders of the Federal Power Commission have not dealt explicitly with this point. 448 The Court has said simply that a person assailing such an order ‘‘carries the heavy burden of making a convincing showing that it is invalid because it is unjust and unreasonable in its consequences.’’ 449

There has been a division of opinion in the Supreme Court with regard to what extent, if at all, proceedings before military tri- bunals should be reviewed by the courts for the purpose of deter- mining compliance with the due process clause. In In re Yamashita, 450 the majority denied a petition for certiorari and peti- tions for writs of habeas corpus to review the conviction of a Japa- nese war criminal by a military commission sitting in the Phil- ippine Islands. It held that since the military commission, in ad- mitting evidence to which objection was made, had not violated any act of Congress, a treaty, or a military command defining its au- thority, its ruling on evidence and on the mode of conducting the proceedings were not reviewable by the courts. Again, in Johnson v. Eisentrager, 451 the Court overruled a lower court decision, which in reliance upon the dissenting opinion in the Yamashita case, had held that the due process clause required that the legality of the conviction of enemy alien belligerents by military tribunals should be tested by the writ of habeas corpus.

Without dissent, the Court, in Hiatt v. Brown, 452 reversed the judgment of a lower court which had discharged a prisoner serving a sentence imposed by a court-martial because of errors whereby the prisoner had been deprived of due process of law. The Court

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453 339 U.S. at 111. 454 346 U.S. 137, 140–41, 146, 147, 148, 150, 153 (1953). 455 367 U.S. 497, 540, 541 (1961). The internal quotation is from Hurtado v.

California, 110 U.S. 516, 532 (1884). Development of substantive due process is briefly noted, above under ‘‘Scope of the Guaranty’’ and is treated more extensively under the Fourteenth Amendment.

held that the court below had erred in extending its review, for the purpose of determining compliance with the due process clause, to such matters as the propositions of law set forth in the staff judge advocate’s report, the sufficiency of the evidence to sustain convic- tion, the adequacy of the pre-trial investigation, and the com- petence of the law member and defense counsel. In summary, Jus- tice Clark wrote: ‘‘In this case the court-martial had jurisdiction of the person accused and the offense charged, and acted within its lawful powers. The correction of any errors it may have committed is for the military authorities which are alone authorized to review its decision.’’ 453 Similarly, in Burns v. Wilson, 454 the Court denied a petition for the writ to review a conviction by a military tribunal on the Island of Guam wherein the petitioners asserted that their imprisonment resulted from proceedings violative of their basic constitutional rights. Four Justices, with whom Justice Minton con- curred, maintained that judicial review is limited to determining whether the military tribunal, or court-martial, had given fair con- sideration to each of petitioners’ allegations, and does not embrace an opportunity ‘‘to prove de novo’’ what petitioners had ‘‘failed to prove in the military courts.’’ According to Justice Minton, however, if the military court had jurisdiction, its action is not reviewable.

Substantive Due Process

Justice Harlan, dissenting in Poe v. Ullman, 455 observed that one view of due process, ‘‘ably and insistently argued . . . , sought to limit the provision to a guarantee of procedural fairness.’’ But, he continued, due process ‘‘in the consistent view of this Court has ever been a broader concept . . . . Were due process merely a proce- dural safeguard it would fail to reach those situations where the deprivation of life, liberty or property was accomplished by legisla- tion which by operating in the future could, given even the fairest possible procedure in application to individuals, nevertheless de- stroy the enjoyment of all three. . . . Thus the guaranties of due process, though having their roots in Magna Carta’s ‘per legem terrae‘ and considered as procedural safeguards ‘against executive usurpation and tyranny,’ have in this country ‘become bulwarks also against arbitrary legislation.’’’

Discrimination.—‘‘Unlike the Fourteenth Amendment, the Fifth contains no equal protection clause and it provides no guar-

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456 Detroit Bank v. United States, 317 U.S. 329, 337 (1943); Helvering v. Lerner Stores Corp., 314 U.S. 463, 468 (1941).

457 Steward Machine Co. v. Davis, 301 U.S. 548, 585 (1937). See also Currin v. Wallace, 306 U.S. 1, 13–14 (1939).

458 Truax v. Corrigan, 257 U.S. 312, 331 (1921). See also Hirabayashi v. United States, 320 U.S. 81, 100 (1943).

459 347 U.S. 497, 499–500 (1954). 460 347 U.S. 483 (1954). With respect to race discrimination, the Court had ear-

lier utilized its supervisory authority over the lower federal courts and its power to construe statutes to reach results it might have based on the equal protection clause if the cases had come from the States. E.g., Hurd v. Hodge, 334 U.S. 24 (1948); Steele v. Louisville & Nashville R.R., 323 U.S. 192 (1944); Railroad Trainmen v. Howard, 343 U.S. 768 (1952). See also Thiel v. Southern Pacific Co., 328 U.S. 217 (1946).

anty against discriminatory legislation by Congress.’’ 456 At other times, however, the Court assumed that ‘‘discrimination, if gross enough, is equivalent to confiscation and subject under the Fifth Amendment to challenge and annulment.’’ 457 The theory that was to prevail seems first to have been enunciated by Chief Justice Taft, who observed that the due process and equal protection clauses are ‘‘associated’’ and that ‘‘[i]t may be that they overlap, that a violation of one may involve at times the violation of the other, but the spheres of the protection they offer are not cotermi- nous. . . . [Due process] tends to secure equality of law in the sense that it makes a required minimum of protection for every one’s right of life, liberty and property, which the Congress or the legis- lature may not withhold. Our whole system of law is predicated on the general, fundamental principle of equality of application of the law.’’ 458 Thus, in Bolling v. Sharpe, 459 a companion case to Brown v. Board of Education, 460 the Court held that segregation of pupils in the public schools of the District of Columbia violated the due process clause. ‘‘The Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause as does the Fourteenth Amendment which applies only to the states. But the concepts of equal protection and due process, both stem- ming from our American ideal of fairness, are not mutually exclu- sive. The ‘equal protection of the laws’ is a more explicit safeguard of prohibited unfairness than ‘due process of law,’ and, therefore, we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so un- justifiable as to be violative of due process.’’

‘‘Although the Court has not assumed to define ‘liberty’ with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of con- duct which the individual is free to pursue, and it cannot be re- stricted except for a proper governmental objective. Segregation in public education is not reasonably related to any proper govern-

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461 Buckley v. Valeo, 424 U.S. 1, 93 (1976); Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 214-18 (1995).

462 Frontiero v. Richardson, 411 U.S. 677 (1973); Califano v. Goldfarb, 430 U.S. 199 (1977). But see Rostker v. Goldberg, 453 U.S. 57 (1981); Califano v. Jobst, 434 U.S. 47 (1977).

463 Compare Jiminez v. Weinberger, 417 U.S. 628 (1974) with Mathews v. Lucas, 427 U.S. 495 (1976).

464 Department of Agriculture v. Murry, 413 U.S. 508 (1973). See also Depart- ment of Agriculture v. Moreno, 413 U.S. 528 (1973).

465 Richardson v. Belcher, 404 U.S. 78, 81 (1971); FCC v. Beach Communica- tions, 508 U.S. 307 (1993) (exemption from cable TV regulation of facilities that serve only dwelling units under common ownership); Lyng v. Castillo, 477 U.S. 635 (1986) (Food Stamp Act limitation of benefits to households of related persons who prepare meals together). With respect to courts and criminal legislation, see Hurtado v. United States, 410 U.S. 578 (1973); Marshall v. United States, 414 U.S. 417 (1974); United States v. MacCollom, 426 U.S. 317 (1976).

466 Hill v. United States ex rel. Weiner, 300 U.S. 105, 109 (1937). See also Dis- trict of Columbia v. Brooke, 214 U.S. 138 (1909); Panama R.R. v. Johnson, 264 U.S. 375 (1924); Detroit Bank v. United States, 317 U.S. 329 (1943).

mental objective and thus it imposes on Negro children of the Dis- trict of Columbia a burden that constitutes an arbitrary depriva- tion of their liberty in violation of the Due Process Clause.’’

‘‘In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.’’

‘‘Equal protection analysis in the Fifth Amendment area, is the same as that under the Fourteenth Amendment.’’ 461 So saying, the court has applied much of its Fourteenth Amendment jurispru- dence to strike down sex classifications in federal legislation, 462 reached classifications with an adverse impact upon illegitimates, 463 and invalidated some welfare assistance provisions with some interesting exceptions. 464 However, almost all legislation involves some degree of classification among particular categories of persons, things, or events, and, just as the equal protection clause itself does not outlaw ‘‘reasonable’’ classifications, neither is the due process clause any more intolerant of the great variety of social and economic legislation typically containing what must be arbitrary line-drawing. 465 Thus, for example, the Court has sus- tained a law imposing greater punishment for an offense involving rights of property of the United States than for a like offense in- volving the rights of property of a private person. 466 A veterans’ law which extended certain educational benefits to all veterans who had served ‘‘on active duty’’ and thereby excluded conscien- tious objectors from eligibility was held to be sustainable, it being rational for Congress to have determined that the disruption caused by military service was qualitatively and quantitatively dif-

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467 Johnson v. Robison, 415 U.S. 361 (1974). See also Schlesinger v. Ballard, 419 U.S. 498 (1975) (military law that classified men more adversely than women deemed rational because it had the effect of compensating for prior discrimination against women). Wayte v. United States, 470 U.S. 598 (1985) (selective prosecution of persons who turned themselves in or were reported by others as having failed to register for the draft does not deny equal protection, there being no showing that these men were selected for prosecution because of their protest activities).

468 Hampton v. Mow Sun Wong, 426 U.S. 88, 100 (1976). Thus, the power over immigration and aliens permitted federal discrimination on the basis of alienage, Hampton, supra (employment restrictions like those previously voided when im- posed by States), durational residency, Mathews v. Diaz, 426 U.S. 67 (1976) (similar rules imposed by States previously voided), and illegitimacy, Fiallo v. Bell, 430 U.S. 787 (1977) (similar rules by States would be voided). Racial preferences and dis- criminations in immigration have had a long history, e.g., The Chinese Exclusion Cases, 130 U.S. 581 (1889), and the power continues today, e.g., Dunn v. INS, 499 F.2d 856, 858 (9th Cir.), cert. denied, 419 U.S. 1106 (1975); Narenji v. Civiletti, 617 F.2d 745, 748 (D.C. Cir. 1979), cert. denied, 446 U.S. 957 (1980), although Congress has removed most such classifications from the statute books.

469 United States v. New York S.S. Co., 269 U.S. 304 (1925). 470 United States v. Carolene Products Co., 304 U.S. 144 (1938); Carolene Prod-

ucts Co. v. United States, 323 U.S. 18 (1944). 471 Kentucky Whip & Collar Co. v. Illinois Cent. R.R., 299 U.S. 334 (1937).

ferent from that caused by alternative service, and for Congress to have so provided to make military service more attractive. 467

‘‘The federal sovereign, like the States, must govern impar- tially. . . . [B]ut . . . there may be overriding national interests which justify selective federal legislation that would be unaccept- able for an individual State.’’ 468 The paramount federal power over immigration and naturalization is the principal example, although there are undoubtedly others, of the national government being able to classify upon some grounds—alienage, naturally, but also other suspect and quasi-suspect categories as well—that would re- sult in invalidation were a state to enact them. The instances may be relatively few, but they do exist.

Congressional Police Measures.—Numerous regulations of a police nature, imposed under powers specifically granted to the Federal Government, have been sustained over objections based on the due process clause. Congress may require the owner of a vessel entering United States ports, and on which alien seamen are af- flicted with specified diseases, to bear the expense of hospitalizing such persons. 469 It may prohibit the transportation in interstate commerce of filled milk 470 or the importation of convict-made goods into any State where their receipt, possession, or sale is a violation of local law. 471 It may require employers to bargain collectively with representatives of their employees chosen in a manner pre- scribed by law, to reinstate employees discharged in violation of law, and to permit use of a company-owned hall for union meet-

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472 E.g., Virginian Ry. v. System Federation No. 40, 300 U.S. 515 (1937); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937); Railway Employees’ Dep’t v. Hanson, 351 U.S. 225 (1956); NLRB v. Stowe Spinning Co., 336 U.S. 226 (1949); NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333 (1938).

473 Ex parte Jackson, 96 U.S. 727 (1878); Rowan v. Post Office Dep’t, 397 U.S. 728 (1970).

474 St. Joseph Stock Yards Co. v. United States, 298 U.S. 38 (1936); Denver Union Stock Yards Co. v. United States, 304 U.S. 470 (1938).

475 320 U.S. 591 (1944). The result of this case had been foreshadowed by the opinion of Justice Stone in FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 586 (1942), to the effect that the Commission was not bound to the use of any single formula or combination of formulas in determining rates.

476 A. T. & T. Co. v. United States, 299 U.S. 232 (1936); United States v. New York Tel. Co., 326 U.S. 638 (1946); Northwestern Co. v. FPC, 321 U.S. 119 (1944).

477 Valvoline Oil Co. v. United States, 308 U.S. 141 (1939); Champlin Rfg. Co. v. United States, 329 U.S. 29 (1946).

ings. 472 Subject to First Amendment considerations, Congress may regulate the postal service to deny its facilities to persons who would use them for purposes contrary to public policy. 473

Congressional Regulation of Public Utilities.—Inasmuch as Congress, in giving federal agencies jurisdiction over various public utilities, usually has prescribed standards substantially identical with those by which the Supreme Court has tested the va- lidity of state action, the review of agency orders seldom has turned on constitutional issues. In two cases, however, maximum rates prescribed by the Secretary of Agriculture for stockyard com- panies were sustained only after detailed consideration of numer- ous items excluded from the rate base or from operating expenses, apparently on the assumption that error with respect to any such item would render the rates confiscatory and void. 474 A few years later, in FPC v. Hope Gas Co., 475 the Court adopted an entirely dif- ferent approach. It took the position that the validity of the Com- mission’s order depended upon whether the impact or total effect of the order is just and reasonable, rather than upon the method of computing the rate base. Rates which enable a company to oper- ate successfully, to maintain its financial integrity, to attract cap- ital, and to compensate its investors for the risks assumed cannot be condemned as unjust and unreasonable even though they might produce only a meager return in a rate base computed by the ‘‘present fair value’’ method.

Orders prescribing the form and contents of accounts kept by public utility companies, 476 and statutes requiring a private carrier to furnish the Interstate Commerce Commission with information for valuing its property 477 have been sustained against the objec- tion that they were arbitrary and invalid. An order of the Secretary of Commerce directed to a single common carrier by water requir-

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478 Isbrandtsen-Moller Co. v. United States, 300 U.S. 146 (1937). 479 St. Louis S.W. Ry. v. United States, 245 U.S. 136, 143 (1917). 480 New England Divisions Case, 261 U.S. 184 (1923). 481 Dayton-Goose Creek Ry. v. United States, 263 U.S. 456, 481, 483 (1924). 482 Chicago, I. & L. Ry. v. United States, 270 U.S. 287 (1926). Cf. Seaboard Air

Line Ry. v. United States, 254 U.S. 57 (1920). 483 Assigned Car Cases, 274 U.S. 564, 575 (1927). 484 United States v. Delaware & Hudson Co., 213 U.S. 366, 405, 411, 415 (1909). 485 United States v. Lowden, 308 U.S. 225 (1939). 486 Louisville & Nashville R.R. v. Mottley, 219 U.S. 467 (1911).

ing it to file a summary of its books and records pertaining to its rates was also held not to violate the Fifth Amendment. 478

Congressional Regulation of Railroads.—Legislation or ad- ministrative orders pertaining to railroads have been challenged re- peatedly under the due process clause but seldom with success. Or- ders of the Interstate Commerce Commission establishing through routes and joint rates have been sustained, 479 as has its division of joint rates to give a weaker group of carriers a greater share of such rates where the proportion allotted to the stronger group was adequate to avoid confiscation. 480 The recapture of one half of the earnings of railroads in excess of a fair net operating income, such recaptured earnings to be available as a revolving fund for loans to weaker roads, was held valid on the ground that any carrier earning an excess held it as trustee. 481 An order enjoining certain steam railroads from discriminating against an electric railroad by denying it reciprocal switching privileges did not violate the Fifth Amendment even through its practical effect was to admit the elec- tric road to a part of the business being adequately handled by the steam roads. 482 Similarly, the fact that a rule concerning the allot- ment of coal cars operated to restrict the use of private cars did not amount to a taking of property. 483 Railroad companies were not de- nied due process of law by a statute forbidding them to transport in interstate commerce commodities which have been manufac- tured, mined or produced by them. 484 An order approving a lease of one railroad by another, upon condition that displaced employees of the lessor should receive partial compensation for the loss suf- fered by reason of the lease 485 is consonant with due process of law. A law prohibiting the issuance of free passes was held con- stitutional even as applied to abolish rights created by a prior agreement whereby the carrier bound itself to issue such passes annually for life, in settlement of a claim for personal injuries. 486 A non-arbitrary Interstate Commerce Commission order estab- lishing a non-compensatory rate for carriage of certain commodities does not violate the due process or just compensation clauses as

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487 Baltimore & Ohio R.R. v. United States, 345 U.S. 146 (1953). 488 Chicago, R.I. & P. Ry. v. United States, 284 U.S. 80 (1931). 489 Railroad Retirement Bd. v. Alton R.R., 295 U.S. 330 (1935). But cf. Usery v.

Turner Elkhorn Mining Co., 428 U.S. 1, 19 (1976). 490 United States v. Bennett, 232 U.S. 299, 307 (1914). 491 Cook v. Tait, 265 U.S. 47 (1924). 492 Helvering v. Lerner Stores Co., 314 U.S. 463, 468 (1941). But see discussion

of ‘‘Discrimination’’ supra. 493 Brushaber v. Union Pac. R.R., 240 U.S. 1, 24 (1916). 494 McCray v. United States, 195 U.S. 27, 61 (1904). 495 Treat v. White, 181 U.S. 264 (1901). 496 Flint v. Stone Tracy Co., 220 U.S. 107 (1911).

long as the public interest thereby is served and the rates as a whole yield just compensation. 487

Occasionally, however, regulatory action has been held invalid under the due process clause. An order issued by the Interstate Commerce Commission relieving short line railroads from the obli- gation to pay the usual fixed sum per day rental for cars used on foreign roads for a space of two days was held to be arbitrary and invalid. 488 A retirement act which made eligible for pensions all persons who had been in the service of any railroad within one year prior to the adoption of the law, counted past unconnected service of an employee toward the requirement for a pension with- out any contribution therefor, and treated all carriers as a single employer and pooled their assets, without regard to their indi- vidual obligations, was held unconstitutional. 489

Taxation.—In laying taxes, the Federal Government is less narrowly restricted by the Fifth Amendment than are the States by the Fourteenth. The Federal Government may tax property belong- ing to its citizens, even if such property is never situated within the jurisdiction of the United States, 490 and it may tax the income of a citizen resident abroad, which is derived from property located at his residence. 491 The difference is explained by the fact that pro- tection of the Federal Government follows the citizen wherever he goes, whereas the benefits of state government accrue only to per- sons and property within the State’s borders. The Supreme Court has said that, in the absence of an equal protection clause, ‘‘a claim of unreasonable classification or inequality in the incidence or ap- plication of a tax raises no question under the Fifth Amendment. . . .’’ 492 It has sustained, over charges of unfair differentiation be- tween persons, a graduated income tax, 493 a higher tax on oleo- margarine than on butter, 494 an excise tax on ‘‘puts’’ but not on ‘‘call,’’ 495 a tax on the income of business operated by corporations but not on similar enterprises carried on by individuals, 496 an in- come tax on foreign corporations, based on their income from sources within the United States, while domestic corporations are

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497 National Paper Co. v. Bowers, 266 U.S. 373 (1924). 498 Billings v. United States, 232 U.S. 261, 282 (1914). 499 Steward Machine Co. v. Davis, 301 U.S. 548 (1937); Helvering v. Davis, 301

U.S. 619 (1937). 500 Bromley v. McCaughn, 280 U.S. 124 (1929). 501 Haavik v. Alaska Packers’ Ass’n, 263 U.S. 510 (1924). 502 Alaska Fish Co. v. Smith, 255 U.S. 44 (1921). 503 LaBelle Iron Works v. United States, 256 U.S. 377 (1921). 504 Helvering v. Northwest Steel Mills, 311 U.S. 46 (1940). 505 Fernandez v. Wiener, 326 U.S. 340 (1945); cf. Coolidge v. Long, 282 U.S. 582

(1931). 506 United States v. Maryland Savings-Share Ins. Corp., 400 U.S. 4 (1970). 507 United States v. Darusmont, 449 U.S. 292, 296–97 (1981). 508 Stockdale v. Insurance Companies, 87 U.S. (20 Wall.) 323, 331, 332 (1874);

Brushaber v. Union Pac. R.R., 240 U.S. 1, 20 (1916); Cooper v. United States, 280 U.S. 409, 411 (1930); Milliken v. United States, 283 U.S. 15, 21 (1931); Reinecke v. Smith, 289 U.S. 172, 175 (1933); United States v. Hudson, 299 U.S. 498, 500– 01 (1937); Welch v. Henry, 305 U.S. 134, 146, 148–50 (1938); Fernandez v. Wiener, 326 U.S. 340, 355 (1945); United States v. Darusmont, 449 U.S. 292, 297 (1981).

taxed on income from all sources, 497 a tax on foreign-built but not upon domestic yachts, 498 a tax on employers of eight or more per- sons, with exemptions for agricultural labor and domestic serv- ice, 499 a gift tax law embodying a plan of graduations and exemp- tions under which donors of the same amount might be liable for different sums, 500 an Alaska statute imposing license taxes only on nonresident fisherman, 501 an act which taxed the manufacture of oil and fertilizer from herring at a higher rate than similar proc- essing of other fish or fish offal, 502 an excess profits tax which de- fined ‘‘invested capital’’ with reference to the original cost of the property rather than to its present value, 503 an undistributed prof- its tax in the computation of which special credits were allowed to certain taxpayers, 504 an estate tax upon the estate of a deceased spouse in respect of the moiety of the surviving spouse where the effect of the dissolution of the community is to enhance the value of the survivor’s moiety, 505 and a tax on nonprofit mutual insurers although such insurers organized before a certain date were ex- empt inasmuch as a continuing exemption for all insurers would have led to their multiplication to the detriment of other federal programs. 506

Retroactive Taxes.—It has been customary from the begin- ning for Congress to give some retroactive effect to its tax laws, usually making them effective from the beginning of the tax year or from the date of introduction of the bill that became the law. 507 Application of an income tax statute to the entire calendar year in which enactment took place has never, barring some peculiar cir- cumstance, been deemed to deny due process. 508 ‘‘Taxation is nei- ther a penalty imposed on the taxpayer nor a liability which he as- sumes by contract. It is but a way of apportioning the cost of gov-

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509 Welch v. Henry, 305 U.S. 134, 146–47 (1938). 510 United States v. Hudson, 299 U.S. 498 (1937). See also Stockdale v. Insur-

ance Companies, 87 U.S. (20 Wall.) 323, 331, 341 (1874); Brushaber v. Union Pac. R.R., 240 U.S. 1, 20 (1916); Lynch v. Hornby, 247 U.S. 339, 343 (1918).

511 Cooper v. United States, 280 U.S. 409 (1930); see also Reinecke v. Smith, 289 U.S. 172 (1933).

512 Helvering v. Mitchell, 303 U.S. 391 (1938). 513 Helvering v. National Grocery Co., 304 U.S. 282 (1938). 514 Patton v. Brady, 184 U.S. 608 (1902). 515 Tyler v. United States, 281 U.S. 497 (1930); United States v. Jacobs, 306

U.S. 363 (1939). 516 Reinecke v. Smith, 289 U.S. 172 (1933). 517 Untermyer v. Anderson, 276 U.S. 440 (1928); Blodgett v. Holden, 275 U.S.

142 (1927), modified, 276 U.S. 594 (1928); Nichols v. Coolidge, 274 U.S. 531 (1927). See also Heiner v. Donnan, 285 U.S. 312 (1932) (invalidating as arbitrary and capri- cious a conclusive presumption that gifts made within two years of death were made in contemplation of death).

ernment among those who in some measure are privileged to enjoy its benefits and must bear its burdens. Since no citizen enjoys im- munity from that burden, its retroactive imposition does not nec- essarily infringe due process, and to challenge the present tax it is not enough to point out that the taxable event, the receipt of in- come, antedated the statute.’’ 509 A special income tax on profits re- alized by the sale of silver, retroactive for 35 days, which was ap- proximately the period during which the silver purchase bill was before Congress, was held valid. 510 An income tax law, made retro- active to the beginning of the calendar year in which it was adopt- ed, was found constitutional as applied to the gain from the sale, shortly before its enactment, of property received as a gift during the year. 511 Retroactive assessment of penalties for fraud or neg- ligence, 512 or of an additional tax on the income of a corporation used to avoid a surtax on its shareholder, 513 does not deprive the taxpayer of property without due process of law.

An additional excise tax imposed upon property still held for sale, after one excise tax had been paid by a previous owner, does not violate the due process clause. 514 Similarly upheld were a transfer tax measured in part by the value of property held jointly by a husband and wife, including that which comes to the joint ten- ancy as a gift from the decedent spouse 515 and the inclusion in the gross income of the settlor of income accruing to a revocable trust during any period when the settlor had power to revoke or modify it. 516

Although the Court during the 1920s struck down gift taxes imposed retroactively upon gifts that were made and completely vested before the enactment of the taxing statute, 517 those deci- sions have recently been distinguished, and their precedential

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518 Untermyer was distinguished in United States v. Hemme, 476 U.S. 558, 568 (1986), upholding retroactive application of unified estate and gift taxation to a tax- payer as to whom the overall impact was minimal and not oppressive. All three cases were distinguished in United States v. Carlton, 512 U.S. 26, 30 (1994), as hav- ing been ‘‘decided during an era characterized by exacting review of economic legis- lation under an approach that ‘has long since been discarded.’’’ The Court noted fur- ther that Untermyer and Blodgett had been limited to situations involving creation of a wholly new tax, and that Nichols had involved a retroactivity period of 12 years. Id.

519 512 U.S. 26, 30 (1994) (quoting Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 16–17 (1976)). These principles apply to estate and gift taxes as well as to income taxes, the Court added. 512 U.S. at 34.

520 512 U.S. at 33. 521 Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 14–20 (1976). But see id.

at 38 (Justice Powell concurring) (questioning application of retroactive cost-spread- ing).

value limited. 518 In United States v. Carlton, the Court declared that ‘‘[t]he due process standard to be applied to tax statutes with retroactive effect . . . is the same as that generally applicable to retroactive economic legislation’’– retroactive application of legisla- tion must be shown to be ‘‘’justified by a rational legislative pur- pose.’’’ 519 Applying that principle, the Court upheld retroactive ap- plication of a 1987 amendment limiting application of a federal es- tate tax deduction originally enacted in 1986. Congress’ purpose was ‘‘neither illegitimate nor arbitrary,’’ the Court noted, since Congress had acted ‘‘to correct what it reasonably viewed as a mis- take in the original 1986 provision that would have created a sig- nificant and unanticipated revenue loss.’’ Also, ‘‘Congress acted promptly and established only a modest period of retroactivity.’’ The fact that the taxpayer had transferred stock in reliance on the original enactment was not dispositive, since ‘‘[t]ax legislation is not a promise, and a taxpayer has no vested right in the Internal Revenue Code.’’ 520

Deprivation of Property: Retroactive Legislation.—Federal regulation of future action, based upon rights previously acquired by the person regulated, is not prohibited by the Constitution. So long as the Constitution authorizes the subsequently enacted legis- lation, the fact that its provisions limit or interfere with previously acquired rights does not ordinarily condemn it. The imposition upon coal mine operators, and ultimately coal consumers, of the li- ability of compensating former employees, who had terminated work in the industry before passage of the law, for black lung dis- abilities contracted in the course of their work, was sustained by the Court as a rational measure to spread the costs of the employ- ees’ disabilities to those who had profited from the fruits of their labor. 521 Legislation readjusting rights and burdens is not unlawful solely because it upsets otherwise settled expectations, but it must

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522 Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 730 (1984). Accord, United States v. Sperry Corp., 493 U.S. 52, 65 (1989) (upholding im- position of user fee on claimants paid by Iran-United States Claims Tribunal prior to enactment of fee statute). Concrete Pipe & Products v. Construction Laborers Pension Trust, 508 U.S. 602, 636–41 (1993) (imposition of multiemployer pension plan withdrawal liability on an employer is not irrational, even though none of its employees had earned vested benefits by the time of withdrawal). In Eastern Enter- prises v. Apfel, 524 U.S. 498 (1998), the challenge was to a statutory requirement that companies formerly engaged in mining pay miner retiree health benefits, as ap- plied to a company that had placed its mining operations in a wholly owned sub- sidiary three decades earlier, before labor agreements included an express promise of lifetime benefits. In a fractured opinion, the justices ruled 5–4 that the scheme’s severe retroactive effect offended the Constitution, though differing on the governing clause. Four of the majority justices based the judgment solely on takings law, while opining that ‘‘there is a question’’ whether the statute violated due process as well. The remaining majority justice, and the four dissenters, viewed substantive due process as the sole appropriate framework for resolving the case, but disagreed on whether a violation had occurred.

523 Fleming v. Rhodes, 331 U.S. 100, 107 (1947). 524 FHA v. The Darlington, Inc., 358 U.S. 84, 89–91, 92–93 (1958). Dissenting,

Justices Harlan, Frankfurter, and Whittaker maintained that under the due process clause the United States, in its contractual relations, is bound by the same rules as private individuals unless the action taken falls within the general federal regu- latory power.

take account of the realities previously existing, i.e., that the dan- ger may not have been known or appreciated, or that actions might have been taken in reliance upon the current state of the law; therefore, legislation imposing liability on the basis of deterrence or of blameworthiness might not have passed muster. The Court has applied Turner Elkhorn in upholding retroactive application of pen- sion plan termination provisions to cover the period of congres- sional consideration, declaring that the test for retroactive applica- tion of legislation adjusting economic burdens is merely whether ‘‘the retroactive application . . . is itself justified by a rational legis- lative purpose.’’ 522

Rent regulations were sustained as applied to prevent execu- tion of a judgment of eviction rendered by a state court before the enabling legislation was passed. 523 For the reason that ‘‘those who do business in the regulated field cannot object if the legislative scheme is buttressed by subsequent amendments to achieve the legislative end,’’ no vested right to use housing, built with the aid of FHA mortgage insurance for transient purposes, was acquired by one obtaining insurance under an earlier section of the National Housing Act, which, though silent in this regard, was contempora- neously construed as barring rental to transients, and was later modified by an amendment which expressly excluded such use. 524 An order by an Area Rent Director reducing an unapproved rental and requiring the landlord to refund the excess previously col- lected, was held, with one dissenting vote, not to be the type of

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525 Woods v. Stone, 333 U.S. 472 (1948). 526 Mulford v. Smith, 307 U.S. 38 (1939). An increase in the penalty for produc-

tion of wheat in excess of quota was valid as applied retroactively to wheat already planted, where Congress concurrently authorized a substantial increase in the amount of the loan that might be made to cooperating farmers upon stored ‘‘farm marketing excess wheat.’’ Wickard v. Filburn, 317 U.S. 111 (1942).

527 Legal Tender Cases (Knox v. Lee ), 79 U.S. (12 Wall.) 457, 551 (1871). 528 Norman v. Baltimore & Ohio R.R., 294 U.S. 240 (1935). 529 Perry v. United States, 294 U.S. 330 (1935). 530 Lynch v. United States, 292 U.S. 571 (1934). See also De La Rama S.S. Co.

v. United States, 344 U.S. 386 (1953). Notice that these kinds of cases are precisely the ones that would be condemned under the contract clause, even under the re- laxed scrutiny now employed, if the action were taken by a State. E.g., United States Trust Co. v. New Jersey, 431 U.S. 1 (1977). ‘‘Less searching standards’’ are imposed by the Due Process Clauses than by the Contract Clause. Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 733 (1984). Also, statutory res- ervation of the right to amend an agreement can defuse most such constitutional issues. Bowen v. Public Agencies Opposed to Social Security Entrapment, 477 U.S. 41 (1986) (amendment of Social Security Act to prevent termination by state when termination notice already filed). The Court has addressed similar issues under breach of contract theory. United States v. Winstar Corp., 518 U.S. 839 (1996).

531 Noble v. Union River Logging R.R., 147 U.S. 165 (1893).

retroactivity which is condemned by law. 525 The application of a statute providing for tobacco marketing quotas, to a crop planted prior to its enactment, was held not to deprive the producers of property without due process of law since it operated, not upon pro- duction, but upon the marketing of the product after the act was passed. 526

In the exercise of its comprehensive powers over revenue, fi- nance, and currency, Congress may make Treasury notes legal ten- der in payment of debts previously contracted 527 and may invali- date provisions in private contracts calling for payment in gold coin, 528 but rights against the United States arising out of contract are more strongly protected by the due process clause. Hence, a law purporting to abrogate a clause in government bonds calling for payment in gold coin was invalid, 529 and a statute abrogating con- tracts of war risk insurance was held unconstitutional as applied to outstanding policies. 530

The due process clause has been successfully invoked to defeat retroactive invasion or destruction of property rights in a few cases. A revocation by the Secretary of the Interior of previous approval of plats and papers showing that a railroad was entitled to land under a grant was held void as an attempt to deprive the company of its property without due process of law. 531 The exception of the period of federal control from the time limit set by law upon claims against carriers for damages caused by misrouting of goods, was read as prospective only because the limitation was an integral

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532 Danzer Co. v. Gulf R.R., 268 U.S. 633 (1925). 533 E.g., Hanover National Bank v. Moyses, 186 U.S. 181, 188 (1902); Conti-

nental Illinois Nat’l Bank & Trust Co. v. Chicago, R.I. & P. Ry., 294 U.S. 648, 673– 75 (1935).

534 Holt v. Henley, 232 U.S. 637, 639–40 (1914). See also Auffm’ordt v. Rasin, 102 U.S. 620, 622 (1881).

535 Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935). 536 Wright v. Vinton Branch, 300 U.S. 440 (1937). The relatively small modifica-

tions that the Court accepted as making the difference in validity, and the fact that subsequently the Court interpreted the statute so as to make smaller the modifica- tions, John Hancock Mut. Life Ins. Co. v. Bartels, 308 U.S. 180, 184 & n.3 (1939); Wright v. Union Central Ins. Co., 311 U.S. 273, 278–79 (1940), has created dif- ferences of opinion with respect to whether Radford remains sound law. Cf. Helvering v. Griffiths, 318 U.S. 371, 400–01 & n.52 (1943) (suggesting Radford might not have survived Vinton Branch).

537 Continental Illinois Nat’l Bank & Trust Co. v. Chicago, R.I. & P. Ry., 294 U.S. 648 (1935).

part of the liability, not merely a matter of remedy, and would vio- late the Fifth Amendment if retroactive. 532

Bankruptcy Legislation.—In acting pursuant to its power to enact uniform bankruptcy legislation, Congress has regularly au- thorized retrospective impairment of contractual obligations, 533 but the due process clause (by itself or infused with takings principles) constitutes a limitation upon Congress’ power to deprive persons of more secure forms of property, such as the rights secured creditors have to obtain repayment of a debt. The Court had long followed a rule of construction favoring prospective-only application of bank- ruptcy laws, absent a clear showing of congressional intent, 534 but it was not until 1935 that the Court actually held unconstitutional a retrospective law. Struck down by the Court was the Frazier- Lemke Act, which by its terms applied only retrospectively, and which authorized a court to stay proceedings for the foreclosure of a mortgage for five years, the debtor to remain in possession at a reasonable rental, with the option of purchasing the property at its appraised value at the end of the stay. The Act offended the Fifth Amendment, the Court held, because it deprived the creditor of substantial property rights acquired prior to the passage of the act. 535 However, a modified law, under which the stay was subject to termination by the court and which continued the right of the creditor to have the property sold to pay the debt, was sus- tained. 536

Without violation of the due process clause, the sale of collat- eral under the terms of a contract may be enjoined, if such sale would hinder the preparation or consummation of a proposed rail- road reorganization, provided the injunction does no more than delay the enforcement of the contract. 537 A provision that claims resulting from rejection of an unexpired lease should be treated as

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538 Kuchner v. Irving Trust Co., 299 U.S. 445 (1937). 539 In re 620 Church Street Corp., 299 U.S. 24 (1936). In the context of Con-

gress’ plan to save major railroad systems, see Regional Rail Reorganization Act Cases, 419 U.S. 102 (1974).

540 Lynch v. United States, 292 U.S. 571, 581 (1934). 541 Dodge v. Osborn, 240 U.S. 118 (1916). 542 Graham & Foster v. Goodcell, 282 U.S. 409 (1931). 543 Anniston Mfg. Co. v. Davis, 301 U.S. 337 (1937). 544 United States v. Heinszen & Co., 206 U.S. 370, 386 (1907). 545 Second Employers’ Liability Cases, 223 U.S. 1, 50 (1912). See also Silver v.

Silver, 280 U.S. 117, 122 (1929) (a state case).

on a parity with provable debts, but limited to an amount equal to three years rent, was held not to amount to a taking of property without due process of law, since it provided a new and more cer- tain remedy for a limited amount, in lieu of an existing remedy in- efficient and uncertain in result. 538 A right of redemption allowed by state law upon foreclosure of a mortgage was unavailing to de- feat a plan for reorganization of a debtor corporation where the trial court found that the claims of junior lienholders had no value. 539

Right to Sue the Government.—A right to sue the Govern- ment on a contract is a privilege, not a property right protected by the Constitution. 540 The right to sue for recovery of taxes paid may be conditioned upon an appeal to the Commissioner and his refusal to refund. 541 There was no denial of due process when Congress took away the right to sue for recovery of taxes, where the claim for recovery was without substantial equity, having arisen from the mistake of administrative officials in allowing the statute of limita- tions to run before collecting a tax. 542 The denial to taxpayers of the right to sue for refund of processing and floor stock taxes col- lected under a law subsequently held unconstitutional, and the substitution of a new administrative procedure for the recovery of such sums, was held valid. 543 Congress may cut off the right to re- cover taxes illegally collected by ratifying the imposition and collec- tion thereof, where it could lawfully have authorized such exactions prior to their collection. 544

Congressional Power to Abolish Common Law Judicial Actions.—Similarly, it is clearly settled that ‘‘[a] person has no property, no vested interest, in any rule of the common law.’’ 545 It follows, therefore, that Congress in its discretion may abolish com- mon law actions, replacing them with other judicial actions or with administrative remedies at its discretion. There is slight intimation in some of the cases that if Congress does abolish a common law action it must either duplicate the recovery or provide a reasonable

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546 The intimation stems from New York Central R.R. v. White, 243 U.S. 188 (1917) (a state case, involving the constitutionality of a workmen’s compensation law). While denying any person’s vested interest in the continuation of any par- ticular right to sue, id. at 198, the Court did seem twice to suggest that abolition without a reasonable substitute would raise due process problems. Id. at 201. In Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 87–92 (1978), it no- ticed the contention but passed it by because the law at issue was a reasonable sub- stitute.

547 It is more likely with respect to congressional provision of a statutory sub- stitute for a cause of action arising directly out of a constitutional guarantee. E.g., Carlson v. Green, 446 U.S. 14, 18–23 (1980).

548 Paramino Co. v. Marshall, 309 U.S. 370 (1940). 549 See ‘‘Liberty of Contract’’ heading under Fourteenth Amendment, infra. 550 Adair v. United States, 208 U.S. 161 (1908), overruled in substance by

Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941); Adkins v. Children’s Hospital, 261 U.S. 525 (1923), overruled by West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).

551 E.g., United States Railroad Retirement Board v. Fritz, 449 U.S. 166 (1981); Schweiker v. Wilson, 450 U.S. 221 (1981).

552 United States v. Carmack, 329 U.S. 230, 241–42 (1946). The same is true of ‘‘just compensation’’ clauses in state constitutions. Boom Co. v. Patterson, 98 U.S.

substitute remedy. 546 Such a holding seems only remotely likely, 547 but some difficulties may be experienced with respect to legislation that retrospectively affects rights to sue, such as shortening or lengthening statutes of limitation, and the like, although these have typically risen in state contexts. In one interesting decision, the Court did sustain an award of additional compensation under the Longshoremen’s and Harbor Workers’ Compensation Act, made pursuant to a private act of Congress passed after expiration of the period for review of the original award, directing the Commission to review the case and issue a new order, the challenge being made by the employer and insurer. 548

Deprivation of Liberty: Economic Legislation.—The pro- scription of deprivation of liberty without due process, insofar as substantive due process was involved, was long restricted to invoca- tion against legislation deemed to abridge liberty of contract. 549 The two leading cases invalidating federal legislation, however, have both been overruled, as the Court adopted a very restrained standard of review of economic legislation. 550 The Court’s ‘‘hands- off’’ policy with regard to reviewing economic legislation is quite pronounced. 551

NATIONAL EMINENT DOMAIN POWER

Overview

‘‘The Fifth Amendment to the Constitution says ‘nor shall pri- vate property be taken for public use, without just compensation.’ This is a tacit recognition of a preexisting power to take private property for public use, rather than a grant of new power.’’ 552 Emi-

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403, 406 (1879). For in-depth analysis of the eminent domain power, see 1 NICHOLS’ THE LAW OF EMINENT DOMAIN (J. Sackman, 3d rev. ed. 1973); and R. Meltz, When the United States Takes Property: Legal Principles, CONGRESSIONAL RESEARCH SERV- ICE REPORT 91–339 A (1991).

553 Boom Co. v. Patterson, 98 U.S. 403, 406 (1879). 554 Prior to this time, the Federal Government pursued condemnation pro-

ceedings in state courts and commonly relied on state law. Kohl v. United States, 91 U.S. 367, 373 (1876); United States v. Jones, 109 U.S. 513 (1883). The first gen- eral statutory authority for proceedings in federal courts was not enacted until 1888. Act of Aug. 1, 1888, ch. 728, 25 Stat. 357. See 1 NICHOLS’ THE LAW OF EMINENT DOMAIN § 1.24 (J. Sackman, 3d rev. ed. 1973).

555 91 U.S. 367 (1876). 556 United States v. Gettysburg Electric Ry., 160 U.S. 668, 679 (1896). 557 E.g., California v. Central Pacific Railroad, 127 U.S. 1, 39 (1888) (highways);

Luxton v. North River Bridge Co., 153 U.S. 525 (1894) (interstate bridges); Cherokee Nation v. Southern Kansas Ry., 135 U.S. 641 (1890) (railroads); Albert Hanson Lumber Co. v. United States, 261 U.S. 581 (1923) (canal); Ashwander v. TVA, 297 U.S. 288 (1936) (hydroelectric power). ‘‘Once the object is within the authority of Congress, the right to realize it through the exercise of eminent domain is clear. For the power of eminent domain is merely the means to the end.’’ Berman v. Parker, 348 U.S. 26, 33 (1954).

558 Kohl v. United States, 91 U.S. 367 374 (1876). 559 Chappell v. United States, 160 U.S. 499, 510 (1896). The fact that land in-

cluded in a federal reservoir project is owned by a state, or that its taking may im- pair the state’s tax revenue, or that the reservoir will obliterate part of the state’s boundary and interfere with the state’s own project for water development and con- servation, constitutes no barrier to the condemnation of the land by the United States. Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508 (1941). So too, land held in trust and used by a city for public purposes may be condemned. United States v. Carmack, 329 U.S. 230 (1946).

nent domain ‘‘appertains to every independent government. It re- quires no constitutional recognition; it is an attribute of sov- ereignty.’’ 553 In the early years of the nation the federal power of eminent domain lay dormant, 554 and it was not until 1876 that its existence was recognized by the Supreme Court. In Kohl v. United States 555 any doubts were laid to rest, as the Court affirmed that the power was as necessary to the existence of the National Gov- ernment as it was to the existence of any State. The federal power of eminent domain is, of course, limited by the grants of power in the Constitution, so that property may only be taken for the effec- tuation of a granted power, 556 but once this is conceded the ambit of national powers is so wide-ranging that vast numbers of objects may be effected. 557 This prerogative of the National Government can neither be enlarged nor diminished by a State. 558 Whenever lands in a State are needed for a public purpose, Congress may au- thorize that they be taken, either by proceedings in the courts of the State, with its consent, or by proceedings in the courts of the United States, with or without any consent or concurrent act of the State. 559

‘‘Prior to the adoption of the Fourteenth Amendment,’’ the power of eminent domain of state governments ‘‘was unrestrained

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560 Green v. Frazier, 253 U.S. 233, 238 (1920). 561 Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833). 562 Davidson v. City of New Orleans, 96 U.S. 97 (1878). The Court attached most

weight to the fact that both due process and just compensation were guaranteed in the Fifth Amendment while only due process was contained in the Fourteenth, and refused to equate the missing term with the present one.

563 Chicago B. & Q. R.R. v. City of Chicago, 166 U.S. 226, 233, 236–37 (1897). See also Sweet v. Rechel, 159 U.S. 380, 398 (1895).

564 Noble v. Oklahoma City, 297 U.S. 481 (1936); Luxton v. North River Bridge Co., 153 U.S. 525 (1895). One of the earliest examples is Curtiss v. Georgetown & Alexandria Turnpike Co., 10 U.S. (6 Cr.) 233 (1810).

565 Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 158–59 (1896); Cole v. La Grange, 113 U.S. 1, 6 (1885).

by any federal authority.’’ 560 The just compensation provision of the Fifth Amendment did not apply to the States, 561 and at first the contention that the due process clause of the Fourteenth Amendment afforded property owners the same measure of protec- tion against the States as the Fifth Amendment did against the Federal Government was rejected. 562 However, within a decade the Court rejected the opposing argument that the amount of com- pensation to be awarded in a state eminent domain case is solely a matter of local law. On the contrary, the Court ruled, although a state ‘‘legislature may prescribe a form of procedure to be ob- served in the taking of private property for public use, . . . it is not due process of law if provision be not made for compensation. . . . The mere form of the proceeding instituted against the owner . . . cannot convert the process used into due process of law, if the necessary result be to deprive him of his property without com- pensation.’’ 563 While the guarantees of just compensation flow from two different sources, the standards used by the Court in dealing with the issues appear to be identical, and both federal and state cases will be dealt with herein without expressly continuing to rec- ognize the two different bases for the rulings.

It should be borne in mind that while the power of eminent do- main, though it is inherent in organized governments, may only be exercised through legislation or through legislative delegation, usu- ally to another governmental body, the power may be delegated as well to private corporations, such as public utilities, railroad and bridge companies, when they are promoting a valid public purpose. Such delegation has long been approved. 564

Public Use

Explicit in the just compensation clause is the requirement that the taking of private property be for a public use; the Court has long accepted the principle that one is deprived of his property in violation of this guarantee if a State takes the property for any reason other than a public use. 565 The question whether a par-

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566 ‘‘It is well established that in considering the application of the Fourteenth Amendment to cases of expropriation of private property, the question what is a public use is a judicial one.’’ City of Cincinnati v. Vester, 281 U.S. 439, 444 (1930).

567 Berman v. Parker, 348 U.S. 26, 32 (1954) (federal eminent domain power in District of Columbia).

568 Green v. Frazier, 253 U.S. 283, 240 (1920); City of Cincinnati v. Vester, 281 U.S. 439, 446 (1930). And see Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1984) (appeals court erred in applying more stringent standard to action of state legisla- ture).

569 Hairston v. Danville & Western Ry., 208 U.S. 598, 607 (1908). An act of con- demnation was voided as not for a public use in Missouri Pac. Ry. v. Nebraska, 164 U.S. 403 (1896), but the Court read the state court opinion as acknowledging this fact, thus not bringing it within the literal content of this statement.

570 United States ex rel. TVA v. Welch, 327 U.S. 546, 551–52 (1946). Justices Reed and Frankfurter and Chief Justice Stone disagreed with this view. Id. at 555, 557 (concurring).

571 327 U.S. at 552. 572 So it seems to have been considered in Berman v. Parker, 348 U.S. 26, 32

(1954). 573 Rindge Co. v. Los Angeles County, 262 U.S. 700, 709 (1923); Bragg v. Wea-

ver, 251 U.S. 57, 58 (1919); Berman v. Parker, 358 U.S. 26, 33 (1954). ‘‘When the

ticular intended use is a public use is clearly a judicial one, 566 but the Court has always insisted on a high degree of judicial deference to the legislative determination. ‘‘The role of the judiciary in deter- mining whether that power is being exercised for a public purpose is an extremely narrow one.’’ 567 When it is state action being chal- lenged under the Fourteenth Amendment, there is the additional factor of the Court’s willingness to defer to the highest court of the State in resolving such an issue. 568 As early as 1908, the Court was obligated to admit that notwithstanding its retention of the power of judicial review, ‘‘no case is recalled where this Court has condemned as a violation of the Fourteenth Amendment a taking upheld by the State court as a taking for public uses . . . .’’ 569 How- ever, in a 1946 case involving federal eminent domain power, the Court cast considerable doubt upon the power of courts to review the issue of public use. ‘‘We think that it is the function of Con- gress to decide what type of taking is for a public use and that the agency authorized to do the taking may do so to the full extent of its statutory authority.’’ 570 There is some suggestion that ‘‘the scope of the judicial power to determine what is a ‘public use’’’ may be different as between Fifth and Fourteenth Amendment cases, with greater power in the latter type of cases than in the former, 571 but it may well be that the case simply stands for the necessity for great judicial restraint. 572 Once it is admitted or de- termined that the taking is for a public use and is within the granted authority, the necessity or expediency of the particular taking is exclusively in the legislature or the body to which the leg- islature has delegated the decision, and is not subject to judicial re- view. 573

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legislature’s purpose is legitimate and its means are not irrational, our cases make clear that empirical debates over the wisdom of takings . . . are not to be carried out in federal courts.’’ Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 242–43 (1984).

574 Clark v. Nash, 198 U.S. 361 (1905); Mt. Vernon-Woodberry Cotton Duck Co., v. Alabama Interstate Power Co., 240 U.S. 30, 32 (1916).

575 Berman v. Parker, 348 U.S. 26, 32, 33 (1954). 576 E.g., Kohl v. United States, 91 U.S. 367 (1876) (public buildings); Chicago M.

& S.P. Ry. v. City of Minneapolis, 232 U.S. 430 (1914) (canal): Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685 (1897) (condemnation of privately owned water supply system formerly furnishing water to municipality under contract); Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power Co., 240 U.S. 30 (1916) (land, water, and water rights condemned for production of electric power by public utility); Dohany v. Rogers, 281 U.S. 362 (1930) (land taken for purpose of ex- change with a railroad company for a portion of its right-of-way required for wid- ening a highway); Delaware, L. & W.R.R. v. Morristown, 276 U.S. 182 (1928) (estab- lishment by a municipality of a public hack stand upon driveway maintained by railroad upon its own terminal grounds to afford ingress and egress to its patrons); Clark v. Nash, 198 U.S. 361 (1905) (right-of-way across neighbor’s land to enlarge irrigation ditch for water without which land would remain valueless); Strickley v. Highland Boy Mining Co., 200 U.S. 527 (1906) (right of way across a placer mining claim for aerial bucket line). In Missouri Pacific Ry. v. Nebraska, 164 U.S. 403 (1896), however, the Court held that it was an invalid use when a State attempted to compel, on payment of compensation, a railroad, which had permitted the erec- tion of two grain elevators by private citizens on its right-of-way, to grant upon like terms a location to another group of farmers to erect a third grain elevator for their own benefit.

577 E.g., Shoemaker v. United States, 147 U.S. 282 (1893) (establishment of pub- lic park in District of Columbia); Rindge Co. v. Los Angeles County, 262 U.S. 700

At an earlier time, the factor of judicial review would have been vastly more important than it is now, inasmuch as the pre- vailing judicial view was that the term ‘‘public use’’ was synony- mous with ‘‘use by the public’’ and that if there was no duty upon the taker to permit the public as of right to use or enjoy the prop- erty taken, the taking was invalid. But this view was rejected some time ago. 574 The modern conception of public use equates it with the police power in the furtherance of the public interest. No defini- tion of the reach or limits of the power is possible, the Court has said, because such ‘‘definition is essentially the product of legisla- tive determinations addressed to the purposes of government, pur- poses neither abstractly nor historically capable of complete defini- tion. . . . Public safety, public health, morality, peace and quiet, law and order—these are some of the . . . traditional application[s] of the police power . . . .’’ Effectuation of these matters being within the authority of the legislature, the power to achieve them through the exercise of eminent domain is established. ‘‘For the power of eminent domain is merely the means to the end.’’ 575 Traditionally, eminent domain has been utilized to facilitate transportation, the supplying of water, and the like, 576 but the use of the power to es- tablish public parks, to preserve places of historic interest, and to promote beautification has substantial precedent. 577

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(1923) (scenic highway); Brown v. United States, 263 U.S. 78 (1923) (condemnation of property near town flooded by establishment of reservoir in order to locate a new townsite, even though there might be some surplus lots to be sold); United States v. Gettysburg Electric Ry., 160 U.S. 668 (1896), and Roe v. Kansas ex rel. Smith, 278 U.S. 191 (1929) (historic sites). When time is deemed to be of the essence, Con- gress takes land directly by statute, authorizing procedures by which owners of ap- propriated land may obtain just compensation. See, e.g., Pub. L. No. 90–545, § 3, 82 Stat. 931 (1968), 16 U.S.C. § 79(c) (taking land for creation of Redwood National Park); Pub. L. No. 93–444, 88 Stat. 1304 (1974) (taking lands for addition to Piscataway Park, Maryland); Pub. L. No. 100–647, § 10002 (1988) (taking lands for addition to Manassas National Battlefield Park).

578 348 U.S. 26, 32–33 (1954) (citations omitted). Rejecting the argument that the project was illegal because it involved the turning over of condemned property to private associations for redevelopment, the Court said: ‘‘Once the object is within the authority of Congress, the means by which it will be attained is also for Con- gress to determine. Here one of the means chosen is the use of private enterprise for redevelopment of the area. Appellants argue that this makes the project a taking from one businessman for the benefit of another businessman. But the means of executing the project are for Congress and Congress alone to determine, once the public purpose has been established. The public end may be as well or better served through an agency of private enterprise than through a department of govern- ment—or so the Congress might conclude.’’ Id. at 33–34 (citations omitted).

579 467 U.S. 229, 243 (1984). 580 467 U.S. at 243. 581 467 U.S. at 240. See also Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1014

(1984) (required data disclosure by pesticide registrants, primarily for benefit of later registrants, has a ‘‘conceivable public character’’).

The Supreme Court has approved generally the widespread use of the power of eminent domain by federal and state governments in conjunction with private companies to facilitate urban renewal, destruction of slums, erection of low-cost housing in place of dete- riorated housing, and the promotion of aesthetic values as well as economic ones. In Berman v. Parker, 578 a unanimous Court ob- served: ‘‘The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to de- termine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully pa- trolled.’’ For ‘‘public use,’’ then, it may well be that ‘‘public interest’’ or ‘‘public welfare’’ is the more correct phrase. Berman was applied in Hawaii Housing Auth. v. Midkiff, 579 upholding the Hawaii Land Reform Act as a ‘‘rational’’ effort to ‘‘correct deficiencies in the mar- ket determined by the state legislature to be attributable to land oligopoly.’’ Direct transfer of land from lessors to lessees was per- missible, the Court held, there being no requirement ‘‘that govern- ment possess and use property at some point during a taking.’’ 580 ‘‘The ‘public use’ requirement is . . . coterminous with the scope of a sovereign’s police powers,’’ the Court concluded. 581

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582 Backus v. Fort Street Union Depot Co., 169 U.S. 557, 573, 575 (1898). 583 Armstrong v. United States, 364 U.S. 40, 49 (1960). ‘‘The political ethics re-

flected in the Fifth Amendment reject confiscation as a measure of justice.’’ United States v. Cors, 337 U.S. 325, 332 (1949). There is no constitutional prohibition against confiscation of enemy property, but aliens not so denominated are entitled to the protection of this clause. Compare United States v. Chemical Foundation, 272 U.S. 1, 11 (1926) and Stoehr v. Wallace, 255 U.S. 239 (1921), with Silesian-Amer- ican Corp. v. Clark, 332 U.S. 469 (1947), Russian Volunteer Fleet v. United States, 282 U.S. 481 (1931), and Guessefeldt v. McGrath, 342 U.S. 308, 318 (1952). Takings Clause protections for such aliens may be invoked, however, only ‘‘when they have come within the territory of the United States and developed substantial connec- tions with this country.’’ United States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990).

584 Monongahela Navigation Co. v. United States, 148 U.S. 312, 326 (1893). The owner’s loss, not the taker’s gain, is the measure of such compensation. United States ex rel. TVA v. Powelson, 319 U.S. 266, 281 (1943); United States v. Miller, 317 U.S. 369, 375 (1943); Roberts v. New York City, 295 U.S. 264 (1935). The value of the property to the government for its particular use is not a criterion. United States v. Chandler-Dunbar Co., 229 U.S. 53 (1913); United States v. Twin City Power Co., 350 U.S. 222 (1956). Attorneys’ fees and expenses are not embraced in the concept. Dohany v. Rogers, 281 U.S. 362 (1930).

585 Van Horne’s Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 315 (C.C. Pa. 1795); United States v. Miller, 317 U.S. 369, 373 (1943).

586 Regional Rail Reorganization Act Cases, 419 U.S. 102, 150–51 (1974). 587 Chicago B. & Q. R.R. v. Chicago, 166 U.S. 226, 250 (1897); McGovern v. City

of New York, 229 U.S. 363, 372 (1913). See also Boom Co. v. Patterson, 98 U.S. 403 (1879); McCandless v. United States, 298 U.S. 342 (1936).

588 United States v. Miller, 317 U.S. 369, 374 (1943); United States ex rel. TVA v. Powelson, 319 U.S. 266, 275 (1943). See also United States v. New River Col-

Just Compensation

‘‘When . . . [the] power [of eminent domain] is exercised it can only be done by giving the party whose property is taken or whose use and enjoyment of such property is interfered with, full and ade- quate compensation, not excessive or exorbitant, but just com- pensation.’’ 582 The Fifth Amendment’s guarantee ‘‘that private property shall not be taken for a public use without just compensa- tion was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’’ 583

The just compensation required by the Constitution is that which constitutes ‘‘a full and perfect equivalent for the property taken.’’ 584 Originally the Court required that the equivalent be in money, not in kind, 585 but more recently has cast some doubt on this assertion. 586 Just compensation is measured ‘‘by reference to the uses for which the property is suitable, having regard to the existing business and wants of the community, or such as may be reasonably expected in the immediate future,. . . [but] ‘mere pos- sible or imaginary uses or the speculative schemes of its proprietor, are to be excluded.’’’ 587 The general standard thus is the market value of the property, i.e., what a willing buyer would pay a willing seller. 588 If fair market value does not exist or cannot be cal-

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lieries Co., 262 U.S. 341 (1923); Olson v. United States, 292 U.S. 264 (1934); Kimball Laundry Co. v. United States, 338 U.S. 1 (1949). Exclusion of the value of improvements made by the Government under a lease was held constitutional. Old Dominion Land Co. v. United States, 269 U.S. 55 (1925).

589 United States v. Miller, 317 U.S. 369, 374 (1943). 590 United States v. 564.54 Acres of Land, 441 U.S. 506 (1979) (condemnation

of church-run camp; United States v. 50 Acres of Land, 469 U.S. 24 (1984) (con- demnation of city-owned landfill). In both cases the Court determined that market value was ascertainable.

591 United States v. Felin & Co., 334 U.S. 624 (1948); United States v. Commod- ities Trading Corp., 339 U.S. 121 (1950). And see Vogelstein & Co. v. United States, 262 U.S. 337 (1923).

592 United States v. Cors, 337 U.S. 325 (1949). And see United States v. Toronto Navigation Co., 338 U.S. 396 (1949).

593 Almota Farmers Elevator & Warehouse Co. v. United States, 409 U.S. 470 (1973). The dissent argued that since upon expiration of the lease only salvage value of the improvements could be claimed by the lessee, just compensation should be limited to that salvage value. Id. at 480.

culated, resort must be had to other data which will yield a fair compensation. 589 However, the Court is resistant to alternative standards, having repudiated reliance on the cost of substitute fa- cilities. 590 Just compensation is especially difficult to compute in wartime, when enormous disruptions in supply and governmentally imposed price ceilings totally skew market conditions. Holding that the reasons which underlie the rule of market value when a free market exists apply as well where value is measured by a govern- ment-fixed ceiling price, the Court permitted owners of cured pork and black pepper to recover only the ceiling price for the commod- ities, despite findings by the Court of Claims that the replacement cost of the meat exceeded its ceiling price and that the pepper had a ‘‘retention value’’ in excess of that price. 591 By a five-to-four deci- sion, the Court ruled that the Government was not obliged to pay the present market value of a tug when the value had been greatly enhanced as a consequence of the Government’s wartime needs. 592

Illustrative of the difficulties in applying the fair market standard of just compensation are two cases decided by five-to-four votes, one in which compensation was awarded and one in which it was denied. Held entitled to compensation for the value of im- provements on leased property for the life of the improvements and not simply for the remainder of the term of the lease was a com- pany that, while its lease had no renewal option, had occupied the land for nearly 50 years and had every expectancy of continued oc- cupancy under a new lease. Just compensation, the Court said, re- quired taking into account the possibility that the lease would be renewed, inasmuch as a willing buyer and a willing seller would certainly have placed a value on the possibility. 593 However, when the Federal Government condemned privately owned grazing land of a rancher who had leased adjacent federally owned grazing land,

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594 United States v. Fuller, 409 U.S. 488 (1973). The dissent argued that the principle denying compensation for governmentally created value should apply only when the Government was in fact acting in the use of its own property; here the Government was acting only as a condemnor. Id. at 494.

595 Danforth v. United States, 308 U.S. 271, 284 (1939); Kirby Forest Industries v. United States, 467 U.S. 1 (1984) (no interest due in straight condemnation action for period between filing of notice of lis pendens and date of taking).

596 United States v. Klamath Indians, 304 U.S. 119, 123 (1938); Jacobs v. United States, 290 U.S. 13, 17 (1933); Kirby Forest Industries v. United States, 467 U.S. 1 (1984) (substantial delay between valuation and payment necessitates procedure for modifying award to reflect value at time of payment).

597 Albrecht v. United States, 329 U.S. 599 (1947). 598 Henkels v. Sutherland, 271 U.S. 298 (1926); see also Phelps v. United States,

274 U.S. 341 (1927). 599 United States v. Welch, 217 U.S. 333 (1910). 600 United States v. General Motors, 323 U.S. 373 (1945). 601 Bauman v. Ross, 167 U.S. 548 (1897); Sharp v. United States, 191 U.S. 341,

351–52, 354 (1903). Where the taking of a strip of land across a farm closed a pri-

it was held that the compensation owed need not include the value attributable to the proximity to the federal land. The result would have been different if the adjacent grazing land had been privately owned, but the general rule is that government need not pay for value that it itself creates. 594

Interest.—Ordinarily, property is taken under a condemnation suit upon the payment of the money award by the condemner, and no interest accrues. 595 If, however, the property is taken in fact be- fore payment is made, just compensation includes an increment which, to avoid use of the term ‘‘interest,’’ the Court has called ‘‘an amount sufficient to produce the full equivalent of that value paid contemporaneously with the taking.’’ 596 If the owner and the Gov- ernment enter into a contract which stipulates the purchase price for lands to be taken, with no provision for interest, the Fifth Amendment is inapplicable and the landowner cannot recover in- terest even though payment of the purchase price is delayed. 597 Where property of a citizen has been mistakenly seized by the Gov- ernment and it is converted into money which is invested, the owner is entitled in recovering compensation to an allowance for the use of his property. 598

Rights for Which Compensation Must Be Made.—If real property is condemned the market value of that property must be paid to the owner. But there are many kinds of property and many uses of property which cause problems in computing just compensa- tion. It is not only the full fee simple interest in land that is com- pensable ‘‘property,’’ but also such lesser interests as easements 599 and leaseholds. 600 If only a portion of a tract is taken, the owner’s compensation includes any element of value arising out of the rela- tion of the part taken to the entire tract. 601 On the other hand, if

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vate right-of-way, an allowance was properly made for the value of the easement. United States v. Welch, 217 U.S. 333 (1910).

602 Bauman v. Ross, 167 U.S. 548 (1897). 603 Monongahela Navigation Co. v. United States, 148 U.S. 312, 326 (1893). 604 Reichelderfer v. Quinn, 287 U.S. 315, 318 (1932). 605 Lynch v. United States, 292 U.S. 571, 579 (1934); Omnia Commercial Corp.

v. United States, 261 U.S. 502, 508 (1923). 606 James v. Campbell, 104 U.S. 356, 358 (1882). See also Hollister v. Benedict

Mfg. Co., 113 U.S. 59, 67 (1885). 607 Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984). 608 Monongahela Navigation Co. v. United States, 148 U.S. 312, 345 (1983). 609 Omnia Commercial Co. v. United States, 261 U.S. 502 (1923). 610 International Paper Co. v. United States, 282 U.S. 399 (1931). 611 Armstrong v. United States, 364 U.S. 40, 50 (1960). 612 Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 88 n.32 (1978).

the taking has in fact benefitted the owner, the benefit may be set off against the value of the land condemned, 602 although any sup- posed benefit which the owner may receive in common with all from the public use to which the property is appropriated may not be set off. 603 When certain lands were condemned for park pur- poses, with resulting benefits set off against the value of the prop- erty taken, the subsequent erection of a fire station on the property instead was held not to have deprived the owner of any part of his just compensation. 604

Interests in intangible as well as tangible property are subject to protection under the Taking Clause. Thus compensation must be paid for the taking of contract rights, 605 patent rights, 606 and trade secrets. 607 So too, the franchise of a private corporation is property that cannot be taken for public use without compensation. Upon condemnation of a lock and dam belonging to a navigation com- pany, the Government was required to pay for the franchise to take tolls as well as for the tangible property. 608 The frustration of a private contract by the requisitioning of the entire output of a steel manufacturer is not a taking for which compensation is re- quired, 609 but government requisitioning from a power company of all the electric power which could be produced by use of the water diverted through its intake canal, thereby cutting off the supply of a lessee which had a right, amounting to a corporeal hereditament under state law, to draw a portion of that water, entitles the lessee to compensation for the rights taken. 610 When, upon default of a ship-builder, the Government, pursuant to contract with him, took title to uncompleted boats, the material men, whose liens under state laws had attached when they supplied the shipbuilder, had a compensable interest equal to whatever value these liens had when the Government ‘‘took’’ or destroyed them in perfecting its title. 611 As a general matter, there is no property interest in the continuation of a rule of law. 612 And, even though state participa-

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613 Bowen v. Public Agencies Opposed to Social Security Entrapment, 477 U.S. 41 (1986).

614 ‘‘Congress is not, by virtue of having instituted a social welfare program, bound to continue it at all, much less at the same benefit level.’’ Bowen v. Gilliard, 483 U.S. 587, 604 (1987).

615 Mitchell v. United States, 267 U.S. 341 (1925); United States ex rel. TVA v. Powelson, 319 U.S. 266 (1943); United States v. Petty Motor Co., 327 U.S. 372 (1946). For consideration of the problem of fair compensation in government-super- vised bankruptcy reorganization proceedings, see New Haven Inclusion Cases, 399 U.S. 392, 489–95 (1970).

616 United States v. General Motors Corp., 323 U.S. 373, 382 (1945). 617 United States v. General Motors Corp., 323 U.S. 373 (1945). In Kimball

Laundry Co. v. United States, 338 U.S. 1 (1949), the Government seized the tenant’s plant for the duration of the war, which turned out to be less than the full duration of the lease, and, having no other means of serving its customers, the laundry sus- pended business for the period of military occupancy; the Court narrowly held that the Government must compensate for the loss in value of the business attributable to the destruction of its ‘‘trade routes,’’ that is, for the loss of customers built up over the years and for the continued hold of the laundry upon their patronage. See also United States v. Pewee Coal Co., 341 U.S. 114 (1951) (in temporary seizure, Government must compensate for losses attributable to increased wage payments by the Government).

tion in the social security system was originally voluntary, a state had no property interest in its right to withdraw from the program when Congress had expressly reserved the right to amend the law and the agreement with the state. 613 Similarly, there is no right to the continuation of governmental welfare benefits. 614

Consequential Damages.—The Fifth Amendment requires compensation for the taking of ‘‘property,’’ hence does not require payment for losses or expenses incurred by property owners or ten- ants incidental to or as a consequence of the taking of real prop- erty, if they are not reflected in the market value of the property taken. 615 ‘‘Whatever of property the citizen has the Government may take. When it takes the property, that is, the fee, the lease, whatever, he may own, terminating altogether his interest, under the established law it must pay him for what is taken, not more; and he must stand whatever indirect or remote injuries are prop- erly comprehended within the meaning of ‘consequential damage’ as that conception has been defined in such cases. Even so the con- sequences often are harsh. For these whatever remedy may exist lies with Congress.’’ 616 An exception to the general principle has been established by the Court where only a temporary occupancy is assumed; then the taking body must pay the value which a hypo- thetical long-term tenant in possession would require when leasing to a temporary occupier requiring his removal, including in the market value of the interest the reasonable cost of moving out the personal property stored in the premises, the cost of storage of goods against their sale, and the cost of returning the property to the premises. 617 Another exception to the general rule occurs with

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618 United States v. Miller, 317 U.S. 369, 375–76 (1943). ‘‘On the other hand,’’ the Court added, ‘‘if the taking has in fact benefitted the remainder, the benefit may be set off against the value of the land taken.’’ Id.

619 United States v. Jones, 109 U.S. 513 (1883); Bragg v. Weaver, 251 U.S. 57 (1919).

620 28 U.S.C. § 1403. On the other hand, inverse condemnation actions (claims that the United States has taken property without compensation) are governed by the Tucker Act, 28 U.S.C. § 1491(a)(1), which vests the Court of Federal Claims (for- merly the Claims Court) with jurisdiction over claims against the United States ‘‘founded . . . upon the Constitution.’’ See Preseault v. ICC, 494 U.S. 1 (1990).

621 Bauman v. Ross, 167 U.S. 548 (1897). Even when a jury is provided to deter- mine the amount of compensation, it is the rule at least in federal court that the trial judge is to instruct the jury with regard to the criteria and this includes deter- mination of ‘‘all issues’’ other than the precise issue of the amount of compensation, so that the judge decides those matters relating to what is computed in making the calculation. United States v. Reynolds, 397 U.S. 14 (1970).

622 Rule 71A(h), Fed. R. Civ. P. These commissions have the same powers as a court-appointed master.

623 Monongahela Navigation Co. v. United States, 148 U.S. 312, 327 (1893). 624 Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685 (1897). In federal

courts, reports of Rule 71A commissions are to be accepted by the court unless ‘‘clearly erroneous.’’ Fed. R. Civ. P. 53(e)(2).

625 Backus v. Fort Street Union Depot Co., 169 U.S. 557, 569 (1898).

a partial taking, in which the government takes less than the en- tire parcel of land and leaves the owner with a portion of what he had before; in such a case compensation includes any diminished value of the remaining portion (‘‘severance damages’’) as well as the value of the taken portion. 618

Enforcement of Right to Compensation.—The nature and character of the tribunal to determine compensation is in the dis- cretion of the legislature, and may be a regular court, a special leg- islative court, a commission, or an administrative body. 619 Pro- ceedings to condemn land for the benefit of the United States are brought in the federal district court for the district in which the land is located. 620 The estimate of just compensation is not re- quired to be made by a jury but may be made by a judge or en- trusted to a commission or other body. 621 Federal courts may ap- point a commission in condemnation actions to resolve the com- pensation issue. 622 If a body other than a court is designated to de- termine just compensation, its decision must be subject to judicial review, 623 although the scope of review may be limited by the legis- lature. 624 When the judgment of a state court with regard to the amount of compensation is questioned, the Court’s review is re- stricted. ‘‘All that is essential is that in some appropriate way, be- fore some properly constituted tribunal, inquiry shall be made as to the amount of compensation, and when this has been provided there is that due process of law which is required by the Federal Constitution.’’ 625 ‘‘[T]here must be something more than an ordi- nary honest mistake of law in the proceedings for compensation be-

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626 McGovern v. City of New York, 229 U.S. 363, 370–71 (1913). 627 229 U.S. at 371. And see Provo Bench Canal Co. v. Tanner, 239 U.S. 323

(1915); Appleby v. City of Buffalo, 221 U.S. 524 (1911). 628 Legal Tender Cases, 79 U.S. (12 Wall.) 457, 551 (1871). The Fifth Amend-

ment ‘‘has never been supposed to have any bearing upon, or to inhibit laws that indirectly work harm and loss to individuals,’’ the Court explained.

629 Meyer v. City of Richmond, 172 U.S. 82 (1898). 630 Sauer v. City of New York, 206 U.S. 536 (1907). But see the litigation in the

state courts cited by Justice Cardozo in Roberts v. City of New York, 295 U.S. 264, 278–82 (1935).

631 Chicago, B. & Q. R.R. v. City of Chicago, 166 U.S. 226 (1897). 632 Manigault v. Springs, 199 U.S. 473 (1905).

fore a party can make out that the State has deprived him of his property unconstitutionally.’’ 626 Unless, by its rulings of law, the state court prevented a complainant from obtaining substantially any compensation, its findings as to the amount of damages will not be overturned on appeal, even though as a consequence of error therein the property owner received less than he was entitled to. 627

When Property Is Taken

The issue whether one’s property has been ‘‘taken’’ with the consequent requirement of just compensation can hardly arise when government institutes condemnation proceedings directed to it. Where, however, physical damage results to property because of government action, or where regulatory action limits activity on the property or otherwise deprives it of value, whether there has been a taking in the Fifth Amendment sense becomes critical.

Government Activity Not Directed at the Property.—The older cases proceeded on the basis that the requirement of just compensation for property taken for public use referred only to ‘‘di- rect appropriation, and not to consequential injuries resulting from the exercise of lawful power.’’ 628 Accordingly, a variety of con- sequential injuries were held not to constitute takings: damage to abutting property resulting from the authorization of a railroad to erect tracts, sheds, and fences over a street; 629 similar depriva- tions, lessening the circulation of light and air and impairing ac- cess to premises, resulting from the erection of an elevated viaduct over a street, or resulting from the changing of a grade in the street. 630 Nor was government held liable for the extra expense which the property owner must obligate in order to ward off the consequence of the governmental action, such as the expenses in- curred by a railroad in planking an area condemned for a crossing, constructing gates, and posting gatemen, 631 or by a landowner in raising the height of the dikes around his land to prevent their par- tial flooding consequent to private construction of a dam under public licensing. 632

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633 Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166, 177–78 (1872). 634 United States v. Dickinson, 331 U.S. 745, 748 (1947). 635 Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327 (1922).

Cf. Portsmouth Harbor Land & Hotel Co. v. United States, 250 U.S. 1 (1919); Pea- body v. United States, 231 U.S. 530 (1913).

636 United States v. Causby, 328 U.S. 256 (1946); Griggs v. Allegheny County, 369 U.S. 84 (1962). A corporation chartered by Congress to construct a tunnel and operate railway trains therein was held liable for damages in a suit by one whose property was so injured by smoke and gas forced from the tunnel as to amount to a taking. Richards v. Washington Terminal Co., 233 U.S. 546 (1914).

637 ‘‘The phrase ‘inverse condemnation’ generally describes a cause of action against a government defendant in which a landowner may recover just compensa- tion for a ‘taking’ of his property under the Fifth Amendment, even though formal condemnation proceedings in exercise of the sovereign’s power of eminent domain have not been instituted by the government entity.’’ San Diego Gas & Electric Co. v. City of San Diego, 450 U.S. 621, 638 n.2 (1981) (Justice Brennan dissenting). See also United States v. Clarke, 445 U.S. 253, 257 (1980); Agins v. City of Tiburon, 447 U.S. 255, 258 n.2 (1980).

638 Gibson v. United States, 166 U.S. 269 (1897); Lewis Blue Point Oyster Co. v. Briggs, 229 U.S. 82 (1913); United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53 (1913); United States v. Appalachian Power Co., 311 U.S. 377 (1940);

But the Court also decided long ago that land can be ‘‘taken’’ in the constitutional sense by physical invasion or occupation by the government, as occurs when government floods land. 633 A later formulation was that ‘‘[p]roperty is taken in the constitutional sense when inroads are made upon an owner’s use of it to an ex- tent that, as between private parties, a servitude has been acquired either by agreement or in course of time.’’ 634 It was thus held that the government had imposed a servitude for which it must com- pensate the owner on land adjoining its fort when it repeatedly fired the guns at the fort across the land and had established a fire control service there. 635 In two major cases, the Court held that the lessees or operators of airports were required to compensate the owners of adjacent land when the noise, glare, and fear of injury occasioned by the low altitude overflights during takeoffs and land- ings made the land unfit for the use to which the owners had ap- plied it. 636 Eventually, the term ‘‘inverse condemnation’’ came to be used to refer to such cases where the government has not insti- tuted formal condemnation proceedings, but instead the property owner has sued for just compensation, claiming that governmental action or regulation has ‘‘taken’’ his property. 637

Navigable Waters.—The repeated holdings that riparian ownership is subject to the power of Congress to regulate commerce constitute an important reservation to the developing law of liabil- ity in the taking area. When damage results consequentially from an improvement to a river’s navigable capacity, or from an im- provement on a nonnavigable river designed to affect navigability elsewhere, it is generally not a taking of property but merely an exercise of a servitude to which the property is always subject. 638

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United States v. Commodore Park, Inc., 324 U.S. 386 (1945); United States v. Wil- low River Power Co., 324 U.S. 499 (1945); United States v. Twin City Power Co., 350 U.S. 222 (1956); United States v. Rands, 389 U.S. 121 (1967).

639 United States v. Virginia Elec. & Power Co., 365 U.S. 624, 628 (1961). 640 United States v. Lynah, 188 U.S. 445 (1903); United States v. Cress, 243

U.S. 316 (1917); Jacobs v. United States, 290 U.S. 13 (1933); United States v. Dick- inson, 331 U.S. 745 (1947); United States v. Kansas City Ins. Co., 339 U.S. 799 (1950); United States v. Virginia Electric & Power Co., 365 U.S. 624 (1961).

641 Kaiser Aetna v. United States, 444 U.S. 164 (1979); Vaughn v. Vermillion Corp., 444 U.S. 206 (1979).

642 Mugler v. Kansas, 123 U.S. 623, 668–69 (1887). See also The Legal Tender Cases, 79 U.S. (12 Wall.) 457, 551 (1871); Chicago, B. & Q. R.R. v. City of Chicago, 166 U.S. 226, 255 (1897); Omnia Commercial Co. v. United States, 261 U.S. 502 (1923); Norman v. Baltimore & Ohio R.R., 294 U.S. 240 (1935).

643 1 NICHOLS’ THE LAW OF EMINENT DOMAIN § 1.42 (J. Sackman, 3d rev. ed. 1973).

644 E.g., Hadacheck v. Sebastian, 239 U.S. 394 (1915) (ordinance upheld restrict- ing owner of brick factory from continuing his use after residential growth sur- rounding factory made use noxious, even though value of property was reduced by more than 90%); Miller v. Schoene, 276 U.S. 272 (1928) (no compensation due owner’s loss of red cedar trees ordered destroyed because they were infected with rust that threatened contamination of neighboring apple orchards: preferment of public interest in saving cash crop to property interest in ornamental trees was ra- tional).

This exception does not apply to lands above the ordinary high- water mark of a stream, 639 hence is inapplicable to the damage the Government may do to such ‘‘fast lands’’ by causing overflows, by erosion, and otherwise, consequent on erection of dams or other im- provements. 640 And, when previously nonnavigable waters are made navigable by private investment, government may not, with- out paying compensation, simply assert a navigation servitude and direct the property owners to afford public access. 641

Regulatory Takings.—While it is established that govern- ment may take private property, with compensation, to promote the public interest, that interest also may be served by regulation of property use pursuant to the police power, and for years there was broad dicta that no one may claim damages due to a police regulation designed to secure the common welfare, especially in the area of health and safety regulations. 642 ‘‘The distinguishing char- acteristic between eminent domain and the police power is that the former involves the taking of property because of its need for the public use while the latter involves the regulation of such property to prevent the use thereof in a manner that is detrimental to the public interest.’’ 643 But regulation may deprive an owner of most or all beneficial use of his property and may destroy the values of the property for the purposes to which it is suited. 644 The older cases flatly denied the possibility of compensation for this diminu-

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645 Mugler v. Kansas, 123 U.S. 623, 668–69 (1887) (ban on manufacture of liquor greatly devalued plaintiff’s plant and machinery; no taking possible simply because of legislation deeming a use injurious to public health and welfare).

646 Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). See also Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (a regulation that deprives a property owner of all beneficial use of his property requires compensation, unless the owner’s proposed use is one prohibited by background principles of property or nuisance law existing at the time the property was acquired).

647 260 U.S. at 414–15. 648 260 U.S. at 415. In dissent, Justice Brandeis argued that a restriction im-

posed to abridge the owner’s exercise of his rights in order to prohibit a noxious use or to protect the public health and safety simply could not be a taking, because the owner retained his interest and his possession. Id. at 416.

649 Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470 (1987). 650 Nashville, C. & St. L. Ry. v. Walters, 294 U.S. 405 (1935) (government may

not require railroad at its own expense to separate the grade of a railroad track from that of an interstate highway). See also Panhandle Eastern Pipe Line Co. v. State Comm’n, 294 U.S. 613 (1935); Atchison, T. & S. F. Ry. v. Public Utility Comm’n, 346 U.S. 346 (1953), and compare the Court’s two decisions in Georgia Ry. & Electric Co. v. City of Decatur, 295 U.S. 165 (1935), and 297 U.S. 620 (1936).

tion of property values, 645 but the Court in 1922 established as a general principle that ‘‘if regulation goes too far it will be recog- nized as a taking.’’ 646

In the Mahon case, Justice Holmes for the Court, over Justice Brandeis’ vigorous dissent, held unconstitutional a state statute prohibiting subsurface mining in regions where it presented a dan- ger of subsidence for homeowners. The homeowners had purchased by deeds that reserved to the coal companies ownership of sub- surface mining rights and that held the companies harmless for damage caused by subsurface mining operations. The statute thus gave the homeowners more than they had been able to obtain through contracting, and at the same time deprived the coal com- panies of the entire value of their subsurface estates. The Court ob- served that ‘‘[f]or practical purposes, the right to coal consists in the right to mine,’’ and that the statute, by making it ‘‘commer- cially impracticable to mine certain coal,’’ had essentially ‘‘the same effect for constitutional purposes as appropriating or destroying it.’’ 647 The regulation, therefore, in precluding the companies from exercising any mining rights whatever, went ‘‘too far.’’ 648 However, when presented 65 years later with a very similar restriction on coal mining, the Court upheld it, pointing out that, unlike its pred- ecessor, the newer law identified important public interests. 649

The Court had been early concerned with the imposition upon one or a few individuals of the costs of furthering the public inter- est. 650 But it was with respect to zoning, in the context of sub- stantive due process, that the Court first experienced some dif- ficulty in this regard. The Court’s first zoning case involved a real estate company’s challenge to a comprehensive municipal zoning

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651 Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). 652 272 U.S. at 395. See also Zahn v. Board of Public Works, 274 U.S. 325 (1927). 653 Nectow v. City of Cambridge, 277 U.S. 183 (1928). 654 Initially, the Court’s return to the land-use area involved substantive due

process, not takings. Village of Belle Terre v. Boraas, 416 U.S. 1 (1974) (sustaining single-family zoning as applied to group of college students sharing a house); Moore v. City of East Cleveland, 431 U.S. 494 (1977) (voiding single-family zoning so strict- ly construed as to bar a grandmother from living with two grandchildren of different children). See also City of Eastlake v. Forest City Enterprises, 426 U.S. 668 (1976).

655 Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978). The phrase appeared first in Goldblatt v. Town of Hempstead, 369 U.S. 590, 594 (1962).

656 Dunham, Griggs v. Allegheny County in Perspective: Thirty Years of Supreme Court Expropriation Law, SUP. CT. REV. 63 (1962). For an effort to ground taking jurisprudence in its philosophical precepts, see Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of ‘Just Compensation’ Law, 80 HARV. L. REV. 1165 (1967).

ordinance, alleging that the ordinance prevented development of its land for industrial purposes and thereby reduced its value from $10,000 an acre to $2,500 an acre. 651 Acknowledging that zoning was of recent origin, the Court observed that it must find its jus- tification in the police power and be evaluated by the constitutional standards applied to exercises of the police power. After consid- ering traditional nuisance law, the Court determined that the pub- lic interest was served by segregation of incompatible land uses and the ordinance was thus valid on its face; whether its applica- tion to diminish property values in any particular case was also valid would depend, the Court said, upon a finding that it was not ‘‘clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.’’ 652 A few years later the Court, again relying on due process rather than tak- ing law, did invalidate the application of a zoning ordinance to a tract of land, finding that the tract would be rendered nearly worthless and that to exempt the tract would impair no substantial municipal interest. 653 But then the Court withdrew from the land- use scene until the 1970s, giving little attention to States and their municipalities as they developed more comprehensive zoning tech- niques. 654

As governmental regulation of property has expanded over the years—in terms of zoning and land use controls, environmental regulations, and the like—the Court never developed, as it admit- ted, a ‘‘set formula to determine where regulation ends and taking begins.’’ 655 Rather, as one commentator remarked, its decisions constitute a ‘‘crazy quilt pattern’’ of judgments. 656 Nonetheless, the Court has now formulated general principles that guide many of its decisions in the area.

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657 438 U.S. 104 (1978). Justices Rehnquist and Stevens and Chief Justice Burg- er dissented. Id. at 138.

658 438 U.S. at 124 (citations omitted). 659 438 U.S. at 124–28, 135–38. 660 260 U.S. at 413. 661 United States v. Riverside Bayview Homes, 474 U.S. 121 (1985) (requirement

that permit be obtained for filling privately-owned wetlands is not a taking, al- though permit denial resulting in prevention of economically viable use of land may be).

In Penn Central Transportation Co. v. City of New York, 657 the Court, while cautioning that regulatory takings cases require ‘‘es- sentially ad hoc, factual inquiries,’’ nonetheless laid out general guidance for determining whether a regulatory taking has oc- curred. ‘‘The economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations are . . . relevant con- siderations. So too, is the character of the governmental action. A ‘taking’ may more readily be found when the interference with property can be characterized as a physical invasion by government than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.’’ 658

At issue in Penn Central was the City’s landmarks preserva- tion law, as applied to deny approval to construct a 53-story office building atop Grand Central Terminal. The Court upheld the land- marks law against Penn Central’s takings claim through applica- tion of the principles set forth above. The economic impact on Penn Central was considered: the Company could still make a ‘‘reason- able return’’ on its investment by continuing to use the facility as a rail terminal with office rentals and concessions, and the City specifically permitted owners of landmark sites to transfer to other sites the right to develop those sites beyond the otherwise permis- sible zoning restrictions, a valuable right that mitigated the burden otherwise to be suffered by the owner. As for the character of the governmental regulation, the Court found the landmarks law to be an economic regulation rather than a governmental appropriation of property, the preservation of historic sites being a permissible goal and one that served the public interest. 659

Justice Holmes began his analysis in Mahon with the observa- tion that ‘‘[g]overnment hardly could go on if to some extent values incident to property could not be diminished without paying for every . . . change in the general law,’’ 660 and Penn Central’s eco- nomic impact standard also leaves ample room for recognition of this principle. Thus, the Court can easily hold that a mere permit requirement does not amount to a taking, 661 nor does a simple rec-

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662 Texaco v. Short, 454 U.S. 516 (1982) (state statute deeming mineral claims lapsed upon failure of putative owners to take prescribed steps is not a taking); United States v. Locke, 471 U.S. 84 (1984) (reasonable regulation of recordation of mining claim is not a taking).

663 467 U.S. 986 (1984). 664 467 U.S. at 1011. 665 467 U.S. at 1006–07. Similarly, disclosure of data submitted before the con-

fidentiality guarantee was placed in the law did not frustrate reasonable expecta- tions, the Trade Secrets Act merely protecting against ‘‘unauthorized’’ disclosure. Id. at 1008–10.

666 475 U.S. 211 (1986). Accord, Concrete Pipe & Products v. Construction La- borers Pension Trust, 508 U.S. 602, 645–46 (1993). In addition, see Kaiser Aetna v. United States, 444 U.S. 164, 179 (1979) (involving frustration of ‘‘expectancies’’ developed through improvements to private land and governmental approval of per- mits), and PruneYard Shopping Center v. Robins, 447 U.S. 74, 84 (1980) (character- izing and distinguishing Kaiser Aetna as involving interference with ‘‘reasonable in- vestment backed expectations’’).

667 524 U.S. 498 (1998). The split doctrinal basis of Eastern Enterprises under- cuts its precedent value, and that of Connolly and Concrete Pipe, for takings law. A majority of the justices (one supporting the judgment and four dissenters) found substantive due process, not takings law, to provide the analytical framework

ordation requirement. 662 The tests become more useful, however, when compliance with regulation becomes more onerous.

Several times the Court has relied on the concept of ‘‘distinct [or, in later cases, ‘reasonable’] investment-backed expectations’’ first introduced in Penn Central. In Ruckelshaus v. Monsanto Co., 663 the Court used the concept to determine whether a taking had resulted from the government’s disclosure of trade secret infor- mation submitted with applications for pesticide registrations. Dis- closure of data that had been submitted from 1972 to 1978, a pe- riod when the statute guaranteed confidentiality and thus ‘‘formed the basis of a distinct investment-backed expectation,’’ would have destroyed the property value of the trade secret and constituted a taking. 664 Following 1978 amendments setting forth conditions of data disclosure, however, applicants voluntarily submitting data in exchange for the economic benefits of registration had no reason- able expectation of additional protections of confidentiality. 665 Rely- ing less heavily on the concept but rejecting an assertion that rea- sonable investment backed-expectations had been upset, the Court in Connolly v. Pension Benefit Guaranty Corp. 666 upheld retro- active imposition of liability for pension plan withdrawal on the basis that employers had at least constructive notice that Congress might buttress the legislative scheme to accomplish its legislative aim that employees receive promised benefits. However, where a statute imposes severe and ‘‘substantially disproportionate’’ retro- active liability based on conduct several decades earlier, on parties that could not have anticipated the liability, a taking (or violation of due process) may occur. On this rationale, the Court in Eastern Enterprises v. Apfel 667 struck down the Coal Miner Retiree Health

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where, as in Eastern Enterprises, the gravamen of the complaint is the unfairness and irrationality of the statute, rather than its economic impact.

668 Andrus v. Allard, 444 U.S. 51 (1979). 669 Similarly, the Court in Goldblatt had pointed out that the record contained

no indication that the mining prohibition would reduce the value of the property in question. 369 U.S. at 594. Contrast Hodel v. Irving, 481 U.S. 704 (1987), where the Court found insufficient justification for a complete abrogation of the right to pass on to heirs interests in certain fractionated property. Note as well the differing views expressed in Irving as to whether that case limits Andrus v. Allard to its facts. Id. at 718 (Justice Brennan concurring, 719 (Justice Scalia concurring). And see the suggestion in Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1027-28 (1992), that Allard may rest on a distinction between permissible regulation of personal property, on the one hand, and real property, on the other.

670 Penn Central, 438 U.S. at 130. The identical principle was reaffirmed in Key- stone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 497 (1987); Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust, 508 U.S. 602, 644 (1993); and Tahoe-Sierra, 122 S. Ct. at 1481.

Benefit Act’s requirement that companies formerly engaged in min- ing pay miner retiree health benefits, as applied to a company that spun off its mining operation in 1965 before collective bargaining agreements included an express promise of lifetime benefits.

On the other hand, a federal ban on the sale of artifacts made from eagle feathers was sustained as applied to the existing inven- tory of a commercial dealer in such artifacts, the Court not directly addressing the ban’s obvious interference with investment-backed expectations. 668 The Court merely noted that the ban served a sub- stantial public purpose in protecting the eagle from extinction, that the owner still had viable economic uses for his holdings, such as displaying them in a museum and charging admission, and that he still had the value of possession. 669

The Court has made plain that in applying the economic im- pact and investment-backed expectations factors of Penn Central, courts are to compare what the property owner has lost through the challenged government action with what the owner retains. Discharging this mandate requires a court to define the extent of plaintiff’s property—the ‘‘parcel as a whole’’—that sets the scope of analysis. The Supreme Court holds that takings law ‘‘does not di- vide a single parcel into discrete segments and attempt to deter- mine whether rights in a particular segment have been entirely ab- rogated.’’ 670 But while this apparently means that one may not ex- clude acreage from the relevant parcel solely to isolate the regu- lated portion, there are numerous arguments for excluding acreage (purchased by plaintiff at a different time, in different zoning sta- tus, etc.) that the Court has not addressed. And roiling the waters are persistent expressions of concern by the conservative justices, often in dicta, about the possible unfairness of an absolute par-

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671 See, e.g., Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1016 n.7 (1992) (‘‘answer ... may lie in how the owner’s reasonable expectations have been shaped by the State’s law of property’’). Justice Kennedy provided extended dicta in his majority opinion in Palazzolo v. Rhode Island, referring to this ‘‘difficult, per- sisting question’’ and noting that ‘‘we have at times expressed discomfort with the logic of this rule.’’ 533 U.S. 606, 631 (2001).

672 122 S. Ct. 1465 (2002). 673 The spatial dimension is illustrated by the takings analysis in Penn Cen-

tral, declining to segment Grand Central Terminal from the air rights over it. Func- tional parcel as a whole—refusing to segment one ‘‘stick’’ in the ‘‘bundle’’ of rights— was applied in Andrus v. Allard, 444 U.S. 51, 65-66 (1979), holding that denial of the right to sell Indian artifacts was not a taking in light of rights in the artifacts that were retained.

674 The dissent was based upon this test. 438 U.S. at 144–46. 675 369 U.S. 590 (1962). Hadacheck v. Sebastian, 239 U.S. 394 (1915), and, per-

haps, Miller v. Schoene, 276 U.S. 272 (1928), also fall under this heading, although Schoene may also be assigned to the public peril line of cases.

cel-as-a-whole rule. 671 Most recently, however, in Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, 672 a six-justice majority including Justices Kennedy and O’Connor of- fered a ringing endorsement of relevant-parcel doctrine. Tahoe-Sierra affirmed the established spatial (court must consider the entire relevant tract) and functional (court must consider plain- tiff’s full bundle of rights) dimensions of the doctrine, 673 and added a temporal one (court must consider the entire time span of plain- tiff’s property interest). Invoking this temporal dimension, the Court held that temporary land-use development moratoria do not effect a total elimination of use, since use and value return in the period following the moratorium’s expiration. Thus, such moratoria are to be tested under the ad hoc, multifactor Penn Central test, rather than the per se approach to ‘‘total takings’’ discussed further on.

In the course of its opinion in Penn Central the Court rejected the principle that no compensation is required when regulation bans a noxious or harmful effect of land use. 674 The principle, it had been contended, followed from several earlier cases, including Goldblatt v. Town of Hempstead. 675 In that case, after the town had expanded around an excavation used by a company for mining sand and gravel, the town enacted an ordinance that in effect ter- minated further mining at the site. Declaring that no compensation was owed, the Court stated that ‘‘[a] prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or an appropriation of property for the public benefit. Such legislation does not disturb the owner in the control or use of his property for lawful purposes, nor restrict his right to dispose of it, but is only a declaration by the State that its use by any one, for certain forbidden purposes,

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676 369 U.S. at 593 (quoting Mugler v. Kansas, 123 U.S. 623, 668–69 (1887). The Court posited a two-part test. First, the interests of the public required the inter- ference, and, second, the means were reasonably necessary for the accomplishment of the purpose and were not unduly oppressive of the individual. 369 U.S. at 595. The test was derived from Lawton v. Steele, 152 U.S. 133, 137 (1894) (holding that state officers properly destroyed fish nets that were banned by state law in order to preserve certain fisheries from extinction).

677 438 U.S. at 133–34 n.30. 678 505 U.S. 1003 (1992). 679 505 U.S. at 1026. The Penn Central majority also rejected the dissent’s con-

tention, 438 U.S. at 147–50, that regulation of property use constitutes a taking un- less it spreads its distribution of benefits and burdens broadly so that each person burdened has at the same time the enjoyment of the benefit of the restraint upon his neighbors. The Court deemed it immaterial that the landmarks law has a more severe impact on some landowners than on others: ‘‘Legislation designed to promote the general welfare commonly burdens some more than others.’’ Id. at 133–34.

680 By contrast, the per se rule is inapplicable to temporary physical occupations of land. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 428, 434 (1982); PruneYard Shopping Center v. Robins, 447 U.S. 74, 84 (1980).

681 The rule emerged from cases involving flooding of lands and erection of poles for telegraph lines, e.g., Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166 (1872); City of St. Louis v. Western Union Tel. Co., 148 U.S. 92 (1893); Western Union Tel. Co. v. Pennsylvania R.R., 195 U.S. 540 (1904).

is prejudicial to the public interests.’’ 676 In Penn Central, however, the Court denied that there was any such test and that prior cases had turned on the concept. ‘‘These cases are better understood as resting not on any supposed ‘noxious’ quality of the prohibited uses but rather on the ground that the restrictions were reasonably re- lated to the implementation of a policy—not unlike historic preser- vation—expected to produce a widespread public benefit and appli- cable to all similarly situated property.’’ 677 More recently, in Lucas v. South Carolina Coastal Council, 678 the Court explained ‘‘noxious use’’ analysis as merely an early characterization of police power measures that do not require compensation. ‘‘[N]oxious use logic cannot serve as a touchstone to distinguish regulatory ‘takings’— which require compensation—from regulatory deprivations that do not require compensation.’’ 679

Penn Central is not the only guide to when an inverse con- demnation has occurred; other criteria have emerged from other cases before and after Penn Central. The Court has long recognized a per se takings rule for certain physical invasions: when govern- ment permanently 680 occupies (or authorizes someone else to per- manently occupy property), the action constitutes a taking and compensation must be paid regardless of the public interests served by the occupation or the extent of damage to the parcel as a whole. 681 The modern case dealt with a law that required landlords to permit a cable television company to install its cable facilities upon their buildings; although the equipment occupied only about 1 c cubic feet of space on the exterior of each building and had only

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682 Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). Loretto was distinguished in FCC v. Florida Power Corp., 480 U.S. 245 (1987); regu- lation of the rates that utilities may charge cable companies for pole attachments does not constitute a taking in the absence of any requirement that utilities allow attachment and acquiesce in physical occupation of their property. See also Yee v. City of Escondido, 503 U.S. 519 (1992) (no physical occupation was occasioned by regulations in effect preventing mobile home park owners from setting rents or de- termining who their tenants would be; owners could still determine whether their land would be used for a trailer park and could evict tenants in order to change the use of their land).

683 Tahoe-Sierra, 122 S. Ct. at 1479. 684 This test was derived from Nectow v. City of Cambridge, 277 U.S. 183 (1928),

a due process case. 685 447 U.S. 255, 260 (1980). 686 Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1019 (1992) (em-

phasis in original). The Agins/ Lucas total deprivation rule does not create an all- or-nothing situation, since ‘‘the landowner whose deprivation is one step short of complete’’ may still be able to recover through application of the Penn Central eco- nomic impact and ‘‘distinct [or reasonable] investment-backed expectations’’ criteria. Id. at 1019 n.8 (1992). See also Palazzolo, 533 U.S. at 632.

de minimis economic impact, a divided Court held that the regula- tion authorized a permanent physical occupation of the property and thus constituted a taking. 682 Recently, the Court sharpened further the distinction between regulatory takings and permanent physical occupations by declaring it ‘‘inappropriate’’ to use case law from either realm as controlling precedent in the other. 683 Physical invasions falling short of permanent physical occupations remain subject to Penn Central.

A second per se taking rule is of more recent vintage. Land use controls constitute takings, the Court stated in Agins v. City of Tiburon, if they do not ‘‘substantially advance legitimate govern- mental interests,’’ 684 or if they deny a property owner ‘‘economi- cally viable use of his land.’’ 685 This second Agins criterion creates a categorical rule: when, with respect to the parcel as a whole, the landowner ‘‘has been called upon to sacrifice all economically bene- ficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking.’’ 686 The only exceptions, the Court explained in Lucas, are for those restrictions that come with the property as title encumbrances or other legally enforceable limitations. Regulations ‘‘so severe’’ as to prohibit all economically beneficial use of land ‘‘cannot be newly legislated or decreed (without compensation), but must inhere in the title itself, in the restrictions that background principles of the State’s law of property and nuisance already place upon land ownership. A law or decree with such an effect must, in other words, do no more than duplicate the result that could have been achieved in the courts— by adjacent land owners (or other uniquely affected persons) under the State’s law of private nuisance, or by the State under its com-

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687 505 U.S. at 1029. 688 533 U.S. 606 (2001). 689 533 U.S. at 627. 690 122 S. Ct. at 1486. 691 505 U.S. at 1029 n.16. 692 344 U.S. 149 (1952). In dissent, Justices Black and Douglas advocated the

applicability of a test formulated by Justice Brandeis in Nashville, C. & St. L. Ry. v. Walters, 294 U.S. 405, 429 (1935), a regulation case, to the effect that ‘‘when par- ticular individuals are singled out to bear the cost of advancing the public conven- ience, that imposition must bear some reasonable relation to the evils to be eradi- cated or the advantages to be secured.’’

693 357 U.S. 155 (1958).

plementary power to abate [public] nuisances . . . , or other- wise.’’ 687 Thus, while there is no broad ‘‘noxious use’’ exception sep- arating police power regulations from takings, there is a narrower ‘‘background principles’’ exception based on the law of nuisance and unspecified ‘‘property law’’ principles.

Together with the investment-backed expectations factor of Penn Central, background principles were viewed by many lower courts as supporting a ‘‘notice rule’’ under which a taking claim was absolutely barred if based on a restriction imposed under a regulatory regime predating plaintiff’s acquisition of the property. In Palazzolo v. Rhode Island, 688 the Court forcefully rejected the absolute version of the notice rule, regardless of rationale. Under such a rule, it said, ‘‘[a] State would be allowed, in effect, to put an expiration date on the Takings Clause.’’ 689 Whether any role is left for preacquisition regulation in the takings analysis, however, the Court’s majority opinion did not say, leaving the issue to duel- ing concurrences from Justice O’Connor (prior regulation remains a factor) and Justice Scalia (prior regulation is irrelevant). Less than a year later, Justice O’Connor’s concurrence carried the day in extended dicta in Tahoe-Sierra, 690 though the decision failed to elucidate the factors affecting the weighting to be accorded the pre-existing regime.

The ‘‘or otherwise’’ reference, the Court explained in Lucas, 691 was principally directed to cases holding that in times of great pub- lic peril, such as war, spreading municipal fires, and the like, prop- erty may be taken and destroyed without necessitating compensa- tion. Thus, in United States v. Caltex, 692 the owners of property de- stroyed by retreating United States armies in Manila during World War II were held not entitled to compensation, and in United States v. Central Eureka Mining Co., 693 the Court held that a fed- eral order suspending the operations of a nonessential gold mine for the duration of the war in order to redistribute the miners, un- accompanied by governmental possession and use or a forced sale of the facility, was not a taking entitling the owner to compensa-

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694 National Bd. of YMCA v. United States, 395 U.S. 85 (1969). ‘‘An undertaking by the Government to reduce the menace from flood damages which were inevitable but for the Government’s work does not constitute the Government a taker of all lands not fully and wholly protected. When undertaking to safeguard a large area from existing flood hazards, the Government does not owe compensation under the Fifth Amendment to every landowner which it fails to or cannot protect.’’ United States v. Sponenbarger, 308 U.S. 256, 265 (1939).

695 Agins v. City of Tiburon, 447 U.S. 255, 260 (1980). 696 483 U.S. 825 (1987). 697 483 U.S. at 837. 698 483 U.S. at 842. 699 Justice Scalia, author of the Court’s opinion in Nollan, amplified his views

in a concurring and dissenting opinion in Pennell v. City of San Jose, 485 U.S. 1 (1988), explaining that ‘‘common zoning regulations requiring subdividers to observe lot-size and set-back restrictions, and to dedicate certain areas to public streets, are in accord with [constitutional requirements] because the proposed property use would otherwise be the cause of’’ the social evil (e.g., congestion) that the regulation seeks to remedy. By contrast, the Justice asserted, a rent control restriction pegged to individual tenant hardship lacks such cause-and-effect relationship and is in re- ality an attempt to impose on a few individuals public burdens that ‘‘should be borne by the public as a whole.’’ 485 U.S. at 20, 22.

700 512 U.S. 374 (1994).

tion for loss of profits. Finally, the Court held that when federal troops occupied several buildings during a riot in order to dislodge rioters and looters who had already invaded the buildings, the ac- tion was taken as much for the owners’ benefit as for the general public benefit and the owners must bear the costs of the damage inflicted on the buildings subsequent to the occupation. 694

The first prong of the Agins test, 695 asking whether land use controls ‘‘substantially advance legitimate governmental interests,’’ has been applied by the Court only in Nollan v. California Coastal Commission. 696 There the Court held that extraction of a public ac- cess easement across a strip of beach as a condition for a permit to enlarge a beachfront home did not ‘‘substantially advance’’ the state’s legitimate interest in preserving public view of the beach from the street in front of the lot. The easement instead was de- signed to allow the public to walk back and forth along the beach between two public beaches. ‘‘[U]nless the permit condition serves the same governmental purpose as the development ban,’’ the Court concluded, ‘‘the building restriction is not a valid regulation of land use but ‘an out-and-out plan of extortion.’’’ 697 ‘‘If [the gov- ernment] wants an easement across the Nollans’ property, it must pay for it.’’ 698 Because the Nollan Court found no essential nexus between the permit condition and the asserted government inter- est, it did not address whether there is any additional requirement when such a nexus does exist. 699 Seven years later, however, the Court announced in Dolan v. City of Tigard 700 that conditions at- tached to development permits must be related to the impact of the proposed development not only in nature but also in degree. Gov-

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701 526 U.S. 687 (1999). 702 City of Monterey also appears to give a lax interpretation to the ‘‘substan-

tially advances a legitimate government interest’’ test of Agins, by endorsing jury instructions interpreting ‘‘substantially advance’’ to require only a ‘‘reasonable rela- tionship.’’ 526 U.S. at 704. Such a reading of City of Monterey, however, puts it squarely at odds with Nollan, 483 U.S. at 834 n.3, where the Court earlier stressed that ‘‘substantially advance’’ imposes a stricter standard than the due process one of rational basis.

703 See, e.g., Agins v. City of Tiburon, 447 U.S. 255 (1980) (issue not reached be- cause property owners challenging development density restrictions had not sub- mitted a development plan); Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264, 293–97 (1981), and Hodel v. Indiana, 452 U.S. 314, 333–36 (1981) (re- jecting facial taking challenges to federal strip mining law).

704 482 U.S. 304 (1987). The decision was 6–3, Chief Justice Rehnquist’s opinion of the Court being joined by Justices Brennan, White, Marshall, Powell, and Scalia,

ernment must establish a ‘‘rough proportionality’’ between the bur- den imposed by such conditions on the property owner, and the im- pact of the property owner’s proposed development on the commu- nity—at least in the context of adjudicated (rather than legislated) conditions.

Nollan and Dolan occasioned considerable debate over the breadth of what became known as the ‘‘heightened scrutiny’’ test. The stakes were plainly high in that the test, where it applies, lessens the traditional judicial deference to local police power and places the burden of proof as to rough proportionality on the gov- ernment. In City of Monterey v. Del Monte Dunes at Monterey, Ltd., 701 the Court unanimously confined the Dolan rough propor- tionality test, and, by implication, the Nollan nexus test, to the exaction context that gave rise to those cases. For certain, then, is that City of Monterey bars application of rough proportionality to outright denials of development. Still unclear, however, is whether the Court meant to place outside Dolan exactions of a purely mone- tary nature, in contrast with the dedication conditions involved in Nollan and Dolan. 702

Following the Penn Central decision, the Court grappled with the issue of the appropriate remedy property owners should pursue in objecting to land use regulations. 703 The remedy question arises because there are two possible constitutional objections to be made to regulations that go ‘‘too far’’ in reducing the value of property or which do not substantially advance a legitimate governmental interest. The regulation may be invalidated as a denial of due proc- ess, or may be deemed a taking requiring compensation, at least for the period in which the regulation was in effect. The Court fi- nally resolved the issue in First English Evangelical Lutheran Church v. County of Los Angeles, holding that when land use regu- lation is held to be a taking, compensation is due for the period of implementation prior to the holding. 704 The Court recognized that,

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and Justice Stevens’ dissent being joined in part by Justices Blackmun and O’Connor. The position the Court adopted had been advocated by Justice Brennan in a dissenting opinion in San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621, 636 (1981) (dissenting from Court’s holding that state court decision was not ‘‘final judgment’’ under 28 U.S.C. § 1257).

705 482 U.S. at 321. 706 Eastern Enterprises v. Apfel, 524 U.S. 498 (1998) (statute imposing general-

ized monetary liability); Babbitt v. Youpee, 519 U.S. 234 (1997) (amended statutory requirement that small fractional interests in allotted Indian lands escheat to tribe, rather than pass on to heirs); Hodel v. Irving, 481 U.S. 704 (1987) (pre-amendment version of escheat statute).

707 Armstrong v. United States, 364 U.S. 40, 49 (1960). For other incantations of this fairness principle, see Penn Central, 438 U.S. at 123–24; and Tahoe-Sierra Pres. Council v. Tahoe Regional Planning Agency, 122 S. Ct. 1465, 1478, 1484-89 (2002).

708 Webb’s Fabulous Pharmacies v. Beckwith, 449 U.S. 155 (1980) (government retained the interest derived from funds it required to be deposited with the clerk of the county court as a precondition to certain suits; the interest earned was not reasonably related to the costs of using the courts, since a separate statute required payment for the clerk’s services). By contrast, a charge for governmental services ‘‘not so clearly excessive as to belie [its] purported character as [a] user fee’’ does not qualify as a taking. United States v. Sperry Corp., 493 U.S. 52, 62 (1989).

709 Penn Central Transp. Co. v. New York City, 438 U.S. 104, 128 (1978). In ad- dition to the cases cited there, see also Kaiser Aetna v. United States, 444 U.S. 164, 180 (1979) (viewed as governmental effort to turn private pond into ‘‘public aquatic

even though government may elect in such circumstances to dis- continue regulation and thereby avoid compensation for a perma- nent property deprivation, ‘‘no subsequent action by the govern- ment can relieve it of the duty to provide compensation for the pe- riod during which the taking was effective.’’ 705 Outside the land- use context, however, the Court has now recognized a limited num- ber of situations where invalidation, rather than compensation, re- mains the appropriate takings remedy. 706

The process of describing general criteria to guide resolution of regulatory taking claims, begun in Penn Central, has reduced to some extent the ad hoc character of takings law. It is nonetheless true that not all cases fit neatly into the categories delimited to date, and that still other cases that might be so categorized are ex- plained in different terms by the Court. The overriding objective, the Court frequently reminds us, is to vitalize the Takings Clause’s protection against government ‘‘forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’’ 707 Thus a taking may be found if the effect of regulation is enrichment of the government itself rather than adjustment of the benefits and burdens of economic life in promotion of the public good. 708 Similarly, the Court looks askance at governmental efforts to secure public benefits at a landowner’s expense— ‘‘government actions that may be characterized as acqui- sitions of resources to permit or facilitate uniquely public func- tions.’’ 709

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park’’); Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987) (‘‘extortion’’ of beachfront easement for public as permit condition unrelated to purpose of permit).

710 Nollan v. California Coastal Comm’n, 483 U.S. 825, 831–32 (1987) (physical occupation occurs with public easement that eliminates right to exclude others); Kaiser Aetna v. United States, 444 U.S. 164 (1979) (imposition of navigation ser- vitude requiring public access to a privately-owned pond was a taking under the cir- cumstances; owner’s commercially valuable right to exclude others was taken, and requirement amounted to ‘‘an actual physical invasion’’). But see PruneYard Shop- ping Center v. Robins, 447 U.S. 74, 84 (1980) (requiring shopping center to permit individuals to exercise free expression rights on property onto which public had been invited was not destructive of right to exclude others or ‘‘so essential to the use or economic value of [the] property’’ as to constitute a taking).

711 Hodel v. Irving, 481 U.S. 704 (1987) (complete abrogation of the right to pass on to heirs fractionated interests in lands constitutes a taking), Babbitt v. Youpee, 519 U.S. 234 (1997) (same result based on ‘‘severe’’ restriction of the right).

712 Phillips v. Washington Legal Foundation, 524 U.S. 156 (1998) (interest on client funds in state Interest on Lawyers Trust Account program is property of cli- ent within meaning of Takings Clause, though funds could not generate net interest in absence of program).

713 First English, Nollan, Lucas, Dolan, and City of Monterey. 714 Lucas spoke of the total taking situation to which its rule applied as ‘‘ex-

traordinary’’ and ‘‘relatively rare.’’ 505 U.S. at 1017-18. Quite recently, Tahoe-Sierra reiterated the ‘‘extraordinary’’ reference. 122 S. Ct. at 1483.

On the other side of the coin, the nature as well as the extent of property interests affected by governmental regulation some- times takes on importance. Some strands are more important than others. The right to exclude others from one’s land is so basic to ownership that extinguishment of this right ordinarily constitutes a taking. 710 Similarly valued is the right to pass on property to one’s heirs. 711 Nor must property have realizable net value to fall under the Takings Clause. 712

Even though takings were found or assumed in several deci- sions since 1987, 713 considerable obstacles remain for future liti- gants challenging regulatory restrictions on land use. As suggested above, regulatory takings will most likely remain difficult to estab- lish in spite of Nollan. The Lucas fact situation, in which govern- ment regulation renders land entirely without economic use, will doubtless prove rare, as the Court itself envisioned on more than one occasion. 714 Buttressing this point is Tahoe-Sierra’s strong im- plication that the Lucas per se rule is triggered only by complete elimination of use and value, something that occurs exceedingly in- frequently in the real world in light of the lingering value even undevelopable land may have as open space or for speculation. More broadly, Tahoe-Sierra is suffused with a general distaste for the use of per se rules in takings analysis, leading observers to argue that in the ordinary regulatory situation, the ad hoc Penn Central standard will often be ‘‘the only game in town.’’.

Failure to incur administrative (and judicial) delays can result in dismissal of an as-applied taking claim based on ripeness doc-

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715 473 U.S. 172 (1985). 716 477 U.S. 340 (1986). 717 Pennell v. City of San Jose, 485 U.S. 1 (1988). 718 533 U.S. 606 (2001). 719 533 U.S. at 620. See also Suitum v. Tahoe Regional Planning Agency, 520

U.S. 725 (1997) (taking claim ripe despite plaintiff’s not having applied for sale of her transferrable development rights, since no discretion remains to agency and value of such rights is simple issue of fact).

trine, an area of takings law that the Court has developed exten- sively since Penn Central. In the leading decision of Williamson County Regional Planning Commission v. Hamilton Bank, 715 the Court announced the canonical two-part ripeness test for takings actions brought in federal court. First, for an as-applied challenge, the property owner must obtain from the regulating agency a ‘‘final, definitive position’’ regarding how it will apply its regulation to the owner’s land. Second, when suing a state or municipality, the owner must exhaust any possibilities for obtaining compensa- tion from the state or its courts before coming to federal court. Thus, the claim in Williamson County was found unripe because the plaintiff had failed to seek a variance (first prong of test), and had not sought compensation from the state courts in question even though they recognized inverse condemnation claims (second prong). Similarly, in MacDonald, Sommer & Frates v. County of Yolo, 716 a final decision was found lacking where the landowner had been denied approval for one subdivision plan calling for in- tense development, but that denial had not foreclosed the possi- bility that a scaled-down (though still economic) version would be approved. In a somewhat different context, a taking challenge to a municipal rent control ordinance was considered ‘‘premature’’ in the absence of evidence that a tenant hardship provision had ever been applied to reduce what would otherwise be considered a rea- sonable rent increase. 717 Beginning with Lucas in 1992, however, the Court’s ripeness determinations have displayed an impatience with formalistic reliance on the ‘‘final decision’’ rule, while nonethe- less explicitly reaffirming it. In Palazzolo v. Rhode Island, 718 for example, the Court saw no point in requiring the landowner to apply for approval of a scaled-down development of his wetland, since the regulations at issue made plain that no development at all would be permitted there. ‘‘[O]nce it becomes clear that the agency lacks the discretion to permit any development, or the per- missible uses of the property are known to a reasonable degree of certainty, a takings claim is likely to have ripened.’’ 719

Facial challenges dispense with the Williamson County final decision prerequisite, though at great risk to the plaintiff in that without pursuing administrative remedies, a claimant often lacks

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720 See, e.g., Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264, 295–97 (1981) (facial challenge to surface mining law rejected); United States v. Riverside Bayview Homes, 474 U.S. 121, 127 (1985) (mere permit requirement does not itself take property); Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 493–502 (1987) (facial challenge to anti-subsidence mining law rejected).

evidence that a statute has the requisite economic impact on his or her property. 720

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