"This is a case about federalism." No sentence better captures the Rehnquist Court's approach to criminal justice than this one, written by Justice Sandra Day O'Connor as the opening line of a 1991 decision. In fact, the case was about whether the State of Virginia could execute Roger Keith Coleman without further judicial review because his lawyers filed his appeal three days late. The Court told Virginia to go ahead. To the Rehnquist Court, criminal justice is all too often a technical matter best left to the states. Even with the state's most awesome sanction–the power to lock up and even kill human beings [see Stephen Bright, page 17]–concerns of equality and justice take a back seat to efficiency and police discretion. If George W. Bush is elected President, the hard-right Justices he promises to appoint would be likely to make matters even worse, wiping out precedents going all the way back to the Warren Court.
During Chief Justice Earl Warren's tenure (1953-1969) the Supreme Court virtually created the field of constitutional criminal justice. Extending the Bill of Rights provisions that protect criminal defendants to state criminal prosecutions and giving those provisions expansive readings, the Court created the Miranda warning, required state courts to exclude evidence seized in violation of the Fourth Amendment, guaranteed poor defendants lawyers paid by the state and authorized federal courts in habeas corpus proceedings to review state criminal convictions for constitutional error.
The Burger Court began dismantling these protections in 1969, and the Rehnquist Court has followed its lead. Its devotion to the task is especially impressive in light of what has happened to the criminal juistice system during Rehnquist's leadership. From 1986, the first year of his tenure, to the present, America's incarcerated population has doubled, from about 1 million to more than 2 million. And as the prison population has exploded, racial disparities in the criminal justice system have grown exponentially. Much of this is attributable to the war on drugs. From 1986 to 1991, for example, the number of white drug offenders in state prisons increased by 110 percent, but the number of imprisoned black drug offenders increased by 465 percent. From 1985 to 1995, black men's per capita incarceration rate increased at nearly ten times the rate of white men's. Today, one in twenty black men over 18 is in prison, compared with one in 180 white men.
To prefer efficiency over justice in these circumstances requires heavy blinders. The Rehnquist Court has not only willingly adopted them but has insisted that other courts wear them as well. In 1987, in McCleskey v. Kemp, the Court deemed a study by Professor David Baldus–the most sophisticated statistical showing of racial discrimination in the administration of the death penalty ever undertaken–to be insufficient to raise any equal protection concerns. Nine years later, in United States v. Armstrong, it barred pretrial discovery into a claim that the crack cocaine laws were being selectively enforced on racial grounds, even though the defendants showed that every one of the fifty-three federal crack cocaine defendants represented by the Public Defenders Office in the prior three years was black or Hispanic. In the Court's most recent term, Justice Rehnquist did not even mention race in his opinion for the Court in Illinois v. Wardlow, upholding the apprehension of a black man solely because he ran from police in a high-crime neighborhood. On claims of racial bias, the Rehnquist Court's attitude has been "see no evil, hear no evil."
Even when race is not explicitly on the table in criminal cases, it is often implicated indirectly. Nowhere is this more true than in the Fourth Amendment law governing police investigative practices. The Warren Court's interpretation of the Fourth Amendment grew out of its concern that an unregulated police force would target the community's least advantaged–a concern borne out by blacks' everyday experiences in the South during the civil rights era. In theory, the Fourth Amendment restrains police by presumptively prohibiting searches except where authorized by a warrant based on probable cause. Officers must satisfy an independent magistrate that there are objective reasons to suspect criminal behavior or evidence of a crime.