Broadly speaking there are two kinds of laws – procedural laws and substantive laws.
Procedural laws are the laws that govern the procedure by which a legal process operates. For instance, a procedural law might be a law that says that within 48 hours of detention, a person must be apprised of his or her rights.
Substantive laws are the laws that actually contain the criminal violations for which someone might be charged. For instance, a substantive law might be a law that says it’s illegal to possess marijuana.
The procedural laws, therefore, govern the way someone might be prosecuted for an alleged violation of a substantive law.
A criminal defense lawyer might use both procedural defenses and substantive defense to protect his or her client. For instance, a defense lawyer might argue that the search of a vehicle was done in violation of a person’s rights under the constitution – essentially this is a procedural violation, for which the remedy might be the suppression of the evidence.
A criminal defense lawyer might also use a substantive defense. For instance, the defense lawyer might argue that the marijuana was not his client’s. Or that the substance found was not marijuana at all.
Since 2001, there has been heightened interest in a person’s procedural rights under the Fourth Amendment. The Fourth Amendment to the Constitution is a protection against unlawful searches and seizures.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Given the current Supreme Court’s tendency to erode these protections, a great deal of academic commentary has dealt with various ways in which searches might be “reasonable” or “unreasonable” and the basis upon which warrants can be issued.
Today’s Diane Rehm Show on NPR discussed this issue in light of a looming Supreme Court decision in U.S. v. Jones, a case involving a warrantless use of a GPS device to track a person’s movements in his car ’round the clock.
The problem with much of the discussion during the program was that, as with most discussions about procedural protections, it ignores the climate in which those protections are either guaranteed or ignored.
In this country, we’ve gone very far in the direction of making victimless conduct illegal: Jones sold cocaine. People should not sell, buy or use cocaine. People shouldn’t drink. They shouldn’t skydive. They shouldn’t shoot guns. The shouldn’t bungie jump. They shouldn’t engage in any risky behavior whatsoever. Risky behavior harms themselves. It harms people around them.
But by making activities legal – activities that are understandably destructive – the government creates a climate in which the police and the government use the danger of these activities to erode procedural protections. After all, who would object to a warrantless search in pursuit of cocaine trafficking? Only a criminal, or someone who sympathizes with criminals.