Dana Raigrodski, Breaking Out of "Custody": A Feminist Voice in Constitutional Criminal Procedure, 36 Am. Crim. L. Rev. 1301 (1999), https://digitalcommons.law.uw.edu/faculty-articles/401
Breaking Out of "Custody": A Feminist Voice in Constitutional Criminal Procedure
American Criminal Law Review
feminist legal theory, Fourth Amendment
In this Essay, I suggest that reexamination of this field of law through a feminist lens can shed new light and add to the understanding of constitutional criminal procedure. These insights, in turn, can and should generate a positive feminist jurisprudence of criminal procedure—a distinctive feminist voice to be integrated systematically into our constitutional criminal procedure and our criminal justice system. Applying feminist legal theories to particular areas of constitutional criminal procedure may help guide us through the more difficult task of constructing a positive feminist jurisprudence of constitutional criminal procedure. Many areas of constitutional criminal procedure lend themselves as potential subjects of feminist critique. Due to the central role interrogations and confessions continue to play in solving and preventing crime, and due to my own familiarity with police interrogations, I chose to begin developing such possible feminist jurisprudence within the Fifth Amendment's protection against self-incrimination. Specifically, I will examine one of the most studied, debated, and glorified Supreme Court decisions—Miranda v. Arizona—and the key determination of "custody" it entails.