The Myth of Choice_ Personal Responsibility in a World of Limits - Kent Greenfield [16]
Sometimes the law will excuse you from a crime even when you did make the choice, for example if you were under duress or faced such a horrible situation that you can claim what the law calls a necessity defense. But the law gives you only so much leeway. Some crimes are so serious that courts will not allow such an excuse. Even if Tony Soprano has kidnapped your family and requires you to murder Phil Leotardo in exchange for their release, murder is not a crime where duress gives you an “I had no choice” defense.
Search and seizure. Under the Constitution, police must generally have a warrant based on probable cause before they search your home, office, or private possessions. There are exceptions, and the biggest exception is that the police do not need a warrant if you consent to the search. Police increasingly depend on “consensual searches,” since it allows them to bypass the warrant and probable cause requirements.
But how voluntary does the search need to be in order to be “consensual”? The answer, according to the Supreme Court, is not very. In one case, a bus was stopped in the middle of the night, far from its destination. Police boarded it and stood at the front and rear.14 An armed officer walked up and down the aisle, approached two seated passengers and asked them to open their luggage. The officer stood over them, blocking their exit, and did not say they had a right to refuse. The passengers “agreed” to have the cops look in their bags, and as you might have guessed from the fact that we’re talking about it, they were transporting cocaine. The Supreme Court held that this was a consensual search, since the passengers had a choice—they could have gotten off the bus. Your guess is as good as mine as to whether the police would have actually allowed the passengers to leave. But the Court assumed they had that choice.
It’s hard to sympathize with guys who have several kilos of cocaine stashed in duffel bags in the overhead rack of a Greyhound bus. But it always strikes me as odd to claim that someone “consented” to a search that he knew would result in many years of jail time. Clearly the passengers felt intimidated and pressured. As Justice David Souter said in dissent, “The police not only carry legitimate authority but also exercise power free from immediate check, and when the attention of several officers is brought to bear on one civilian the balance of immediate power is unmistakable.” He went on to say that such a “display of power” might “overbear a normal person’s ability to act freely, even in the absence of explicit commands.” Again, the question becomes how much choice counts as choice.
Free speech. One of the fundamental doctrines of free speech is that the government cannot force you to speak. During World War II, a number of states began requiring school children to begin their school day by saluting the flag and reciting the pledge of allegiance. In West Virginia, a child who was a Jehovah’s Witness refused to say the pledge because it conflicted with his religious beliefs, and the school suspended him. Justice Robert Jackson’s opinion for the Supreme Court striking down the compulsory pledge is among the most famous in free speech law: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word