This article evaluates if in the 6.5 years since the bombing of the World Trade Towers and the Pentagon, the nation's highest appellate courts were, on balance, more willing to acquiesce in criminalization based on only suspicion. The article seeks to accomplish this evaluation by comparing decisions of the United States and the States’ Supreme Courts in the six years before September 2001, and the six years since the terrorist attack to determine if these courts with the greatest authority to sanction the criminalization of suspicion in fact have been more willing to do just that. Such a post 9/11/2001 trend would be even more significant because despite the attacks, neither the national or state governments have abolished or amended pertinent federal and state constitutional protections of individual rights. The article begins by providing definitions of criminalization, suspicion, and reasonable suspicion, based on policy and prior precedent from these supreme courts. Based on the composite of these definitions it next provides a definition of what this article means by criminalizing suspicion. The second section of the article begins with a comparative analysis of the opinion of the United States Supreme Court in Hiibel with the most pertinent of the Court’s precedent that preceded that decision. The section continues with surveys of reactions to Hiibel by the U.S. Supreme Court, commentators, and the states’ legislatures and supreme courts
The third section of the article is its core - a comparative examination of the decisions of the states’ supreme courts in the six-year periods before and after 9/11/2001. This principal section of the article examines decisions of the state supreme courts that substantively are fairly characterized as implicating the issue of whether to sanction the constitutionality of criminalizing suspicion. The study includes state supreme court decisions fairly characterized as involving the issue of the criminalization of suspicion by identifying and study of cases involving such crimes as obstruction of justice, stop and identify, status generally, status-sex offender registration, status-terrorist, status-"gang", status-juvenile curfew, loitering, disorderly conduct, and anti-car cruising. The article therefore has a significant empirical element.
The article concludes with a final section devoted first to summarizing its key findings. The most important of these findings is that the majority of supreme courts over the last dozen years, both before and after 9/11 were willing to sanction criminalization based on only suspicion. To curb this highly undesirable current state of the law, the final section of the article next proposes major reforms, based on current substantive criminal law principles. The major reforms are to three doctrines which have played a significant role in the supreme courts’ willingness to sanction the constitutionality of criminalization based on only suspicion --- the reasonable suspicion doctrine, the void for vagueness doctrine, and substantive due process analysis as applied to the suspicion based crimes identified and evaluated in this article. The article concludes with perspectives, including exploring future implications of its key findings and reforms.
- Reasonable Suspicion,
- Criminal Law,
- Ex Post Facto,
- Substantive Due Process
Available at: http://works.bepress.com/dannye_holley/3/