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Hear No Evil, See No Evil | The Nation

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Hear No Evil, See No Evil

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"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.

About the Author

David Cole
David Cole
David Cole (@DavidColeGtown), The Nation's legal affairs correspondent, is the author, most recently, of The Torture...

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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.

In reality, the Burger and Rehnquist courts have created so many exceptions to the presumption that it rarely applies. The rule doesn't apply, for example, to information shared with another. When a citizen puts her garbage out, the Court reasoned in California v. Greenwood (1988), she surrenders any privacy interest in its contents, so police need neither a warrant nor probable cause to snoop through trash bags. The same rule applies to bank records, phone records and any other information shared with another.

The Court has also permitted the police to conduct searches "by consent," without a warrant or probable cause, in settings that are inherently coercive. In Ohio v. Robinette (1996), the Rehnquist Court ruled that the police need not tell drivers during routine traffic stops that they are free to leave before requesting consent to search their cars. In essence, the Court permitted the police to use the coercion of a traffic stop to wrest "consent" from drivers. The same year, the Court ruled in Whren v. United States that the Fourth Amendment allows the police to use traffic infractions as a pretext to stop cars. Together these cases give a green light to racial profiling on the nation's highways, inviting police to use a traffic infraction to stop a car and search for drugs without any objective basis for suspicion. When the police need not offer objective justifications for their conduct, they all too often resort to racial stereotypes. Thus the real problem with the Court's "consent" doctrine is that by treating coercive encounters as consensual it imposes an unfair burden on young black men. That cost, so palpable to anyone paying attention to criminal justice in the eighties and nineties, does not even get a mention by the Rehnquist Court.

While the Rehnquist Court has not overturned Gideon v. Wainwright, the Warren Court's historic 1963 decision extending to poor criminal defendants the right to be represented by counsel, it has been extraordinarily tolerant of incompetent lawyering on behalf of the poor. Until last term, the Rehnquist Court had never found a lawyer's representation to be constitutionally deficient. As a result, states are under virtually no obligation to provide competent legal assistance to the poor.

Rehnquist's most pernicious attack on the Warren Court's criminal justice decisions, however, has not been in the rewriting of substantive constitutional rights but in the much less visible field of habeas corpus. The writ of habeas corpus allows state prisoners to go to federal court to review claims of constitutional error in their state criminal trials. A federal forum is critical because elected state judges are often reluctant to acknowledge constitutional error in criminal cases. The Rehnquist Court has consistently limited federal habeas corpus review, erecting obstacle after obstacle to prisoner relief. The most significant one, announced in Teague v. Lane, bars courts from affording relief to state prisoners on the basis of any law not clearly established at the time the defendant's conviction became final. These rules, far too complex to elicit much public attention, have meant that more and more constitutional errors simply go unremedied. (In 1996 the Clinton Administration, no friend of criminal defendants' rights, ratified the Rehnquist Court's approach when it agreed to habeas restrictions, but the principal damage had already been done.)

In the last week of this term, Chief Justice Rehnquist surprised many by writing the Court's decision upholding Miranda v. Arizona in the face of a 1968 federal statute that purported to overrule it. The Court's 7-to-2 decision in Dickerson v. United States was lauded as a major victory for criminal defendants, but of course it merely affirmed the status quo by declining to overrule Miranda. It is a sign of the Rehnquist Court's success in tirelessly cutting back on criminal defendants' rights that it is now considered a major victory merely to hold ground.

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