“This article evaluates whether the nation‘s highest appellate courts have, on balance, been more willing to acquiesce to criminalization based on suspicion since the attacks on the World Trade Center seven years ago. The article seeks to accomplish this evaluation by comparing decisions of the United States and state supreme courts in the six years prior to September 2001 with decisions in the six years following the terrorist attack— have the courts with the greatest authority to sanction the criminalization of suspicion been more willing to do just that? Such a post-September 11th trend would be significant because, despite the attacks, neither the national nor state governments have abolished or amended pertinent federal and state constitutional protections of individual rights.
This article first defines criminalization, suspicion, and reasonable suspicion, based on policy and precedents from these supreme courts. This article next combines these definitions to define what it means to “criminalize suspicion.”
The second section of the article begins with a comparative analysis of the opinion of the U.S. Supreme Court in Hiibel with the most pertinent of the Court‘s prior precedents. 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 September 11, 2001. This principal section of the article examines decisions of the state supreme courts that can be fairly characterized as implicating the constitutionality of criminalizing suspicion.”
Dannye Holley, The Supreme Courts: Did September 11th Accelerate Their Sanctioning the Constitutionality of Criminalizing Suspicion?, 7 Pierce L. Rev. 39 (2008), available at http://scholars.unh.edu/unh_lr/vol7/iss1/4