NCJ Number
182725
Journal
Criminal Justice Policy Review Volume: 8 Issue: 1 Dated: March 1997 Pages: 99-117
Date Published
1997
Length
19 pages
Annotation
This article examines the U.S. Supreme Court justices' techniques for manipulating the symbolic qualities of their decisions that affect criminal justice rights.
Abstract
In altering constitutional doctrines that affect criminal justice, the Burger and Rehnquist Courts turned substantive rights into symbols, a process the author labels the "symbolization of rights." In this context, the term "symbolization" refers to the use of interpretive techniques and devices that create, facilitate, or tolerate gaps between the formal statement of a basic constitutional protection and the actual implementation (or lack thereof) of that protection. The extent of symbolization for any right depends on the distance between the formal declaration of the right's meaning and the actual protection enjoyed by individuals in their encounters with justice system officials. Frequently, this distance is created and defined by the Supreme Court's encouragement or tolerance of discretionary decision making by criminal justice officials in situations that implicate constitutional protections for criminal suspects, defendants, and other members of the public who come into contact with justice system officials. The justices on the Burger and Rehnquist Courts have used a variety of interpretive techniques to advance the symbolization process in criminal justice. The application of these techniques has not been applied exclusively against Warren Court precedents. The symbolization process has also affected Burger Court decisions viewed with apparent disfavor by justices on the more conservative Rehnquist Court. The use of these techniques shows how the Supreme Court has altered constitutional doctrines without eliminating landmark liberal precedents. A 28-item bibliography and a list of cases cited