CHAPTER ◆ 8
Criminal Justice
In February 2013, the Supreme Court heard a case about the police interrogation of a criminal suspect in custody. Alonzo King was an unremarkable criminal defendant, charged with menacing people with a shotgun. The jurisdiction in which he was arrested was just as mundane: Wicomico County, a sleepy part of southern Maryland that is home to Perdue Farms’ headquarters. What made King’s case of interest to the Court was that when he was arrested, the police took a DNA sample from the inside of his cheeks with a swab. They acted pursuant to the Maryland DNA Collection Act, which authorized the police to take DNA samples from criminal suspects. The state uploaded King’s DNA to the Combined DNA Index System, a federal database, and it matched a suspect in a six-year-old rape case. King was tried for the rape and convicted.
In appealing his conviction, King argued that the seizure of his DNA violated his Fourth Amendment rights. It is well established that the state can compel a criminal suspect to help its investigation in certain ways, including by giving fingerprints. Forcing a suspect to provide a DNA sample, however, is more intrusive than taking fingerprints, and it raised more profound privacy issues. DNA can reveal not only people’s identity but their entire genetic profile. The Court of Appeals of Maryland ruled for King, holding that the seizure of his DNA and the portion of the Maryland DNA law that authorized it violated the Fourth Amendment.
When Maryland v. King arrived at the Supreme Court, there was no doubt about its significance. While DNA samples were being collected in states across the country, geneticists were unlocking new secrets from DNA at a rapid pace. It was clear that the rules the Court established for the government’s use of the DNA it collected would be of enormous significance as genetic science progressed. At oral argument, Alito called King “perhaps the most important criminal procedure case that this Court has heard in decades,” and legal commentators were quick to agree.
Experts lined up to explain the scientific issues and to underscore the dangers that lurked in the case. Civil libertarians, scientists, and defense lawyers warned that the way the government was collecting and using DNA—including the Combined DNA Index System (CODIS), which Congress established in 1994—posed an unprecedented threat to privacy. A DNA database gave the government a storehouse of critical information about what physical and mental illnesses a person might have or might develop, their race and ethnicity, who their family members were, and other deeply personal matters.
Law enforcement understood the value of DNA and was constantly looking to expand its use. CODIS began as a small software pilot project serving just fourteen state and local laboratories, but by the time of the King case it had expanded to all fifty states and contained more than eleven million DNA profiles. The Electronic Privacy Information Center and twenty-six technical experts and legal scholars explained in a friend-of-the-court brief that CODIS was growing “dramatically and unpredictably” without the necessary legal safeguards and posed a serious threat to “genetic privacy rights.”
The American Civil Liberties Union, in another friend-of-the-court brief, emphasized how wide the scope of DNA collection had become. The federal government and thirty-one states had DNA collection laws, and many jurisdictions took DNA from people who had been arrested for crimes far less serious than the gun offense King was charged with. In at least thirteen states, DNA samples were taken at every felony arrest, including relatively minor ones. In California, these included stealing $250 worth of crops from a field or unlawfully subleasing a car. Federal law allowed DNA to be seized from people arrested for misdemeanors, which could include illegal parking or walking a pet with a leash longer than six feet.
Some groups were, predictably, more likely than others to have their genetic privacy invaded by forcible DNA collection. The Howard University School of Law Human and Civil Rights Clinic, in a friend-of-the-court brief, pointed out that the impact of intrusive law enforcement techniques of this kind falls disproportionately on minority populations. Even though the law was racially neutral, the civil rights clinic advised, “history and practice dictate” that it would “be used to harass and infringe upon the rights of people of color.”
Despite the serious warnings from experts, the Court, by a 5–4 vote, reversed the Maryland court and upheld King’s conviction. The Court broke down on ideological lines, with one switch. Breyer, one of the liberal justices, voted with four of the conservatives—Roberts, Kennedy, Thomas, and Alito—to uphold the conviction. Scalia dissented, along with the remaining three liberals—Ginsburg, Kagan, and Sotomayor.
Kennedy, writing for the Court, said the Fourth Amendment required balancing privacy rights against “law enforcement–related concerns.” In his view, the government had legitimate government interests in collecting DNA from a person who had been arrested—most of all, the ability to properly identify him. Kennedy said the privacy interests were “minimal,” since the subject was already in police custody, not in his home or on the street, and the search itself was just a “gentle rub” of a swab. He also emphasized that the matching that occurred in CODIS was done with parts of the subject’s DNA that do not reveal genetic traits.
Scalia, who wrote the dissent, argued that, although the Court framed the case as being about the ability to identify a suspect, it was actually about much more. The government used the DNA samples to search DNA databases and try to connect a known suspect—in this case King—with unsolved crimes. In Fourth Amendment terminology, that kind of search is one without “individualized suspicion”—the government would be trying to connect King to crimes it had no specific reason to suspect he was involved with. The government is prohibited from searching people without individualized suspicion to convict them of crimes “without exception,” Scalia said, and that prohibition “lies at the very heart of the 4th Amendment.”
The majority was trying to disguise “the vast (and scary) scope of its holding,” Scalia said, by saying that DNA would be taken by the police only from people suspected of “serious offenses.” That was, Scalia insisted, “a limitation it cannot deliver.” This sort of DNA testing would be done more widely now that the Court had approved it, he said—possibly, one day, even on people applying for driver’s licenses or boarding planes. Scalia suggested that the nation could be on its way to becoming a “genetic panopticon,” invoking English philosopher Jeremy Bentham’s nightmare vision—from the Greek pan, for “all,” and optikon, for “sight”—of a world in which every aspect of a person could be observed.
Law enforcement and its allies welcomed the ruling, but critics of excessive government power on both the left and right worried about where the Court was taking the country. Norman Reimer, the executive director of the National Association of Criminal Defense Lawyers, called the decision a “dangerous precedent” that could “pave the way for an extraordinary degradation of the Fourth Amendment, with far reaching consequences for Americans’ individual liberty and privacy rights.” Senator Ted Cruz, the conservative Texas Republican, tweeted, “Unfortunate MD v. King #SCOTUS ruling expands govt power, invades liberty & undermines our constitutional rights.”
In an earlier era, the Court had taken a very different approach to the rights of criminal suspects. In the “rights revolution” of the 1960s, the Warren Court significantly expanded the rights of people accused of crimes. It saw criminal suspects, who faced the immense power of police and prosecutors, as a vulnerable group in need of protection.
When the Warren Court began, defendants in state court, where almost 99 percent of criminal prosecutions occurred, had few constitutional rights. States were required to meet a basic standard of “fundamental fairness” under the Fourteenth Amendment, but beyond that, state police and prosecutors had considerable freedom to do what they wanted. If the police obtained forced confessions or seized evidence through unreasonable searches, there was no federal requirement that state courts exclude them from being introduced at trial, and about half of the states allowed prosecutors to use this sort of tainted evidence, which would be barred in federal court.
In 1961, the Court began to change the rules. The case that launched the Court’s new direction, Mapp v. Ohio, began in Cleveland in May 1957, when the police arrived at Dollree Mapp’s home to question a man about a bombing. Mapp was a strong-willed Mississippi native who married one top-ranked boxer and was later engaged to another, the light heavyweight champion Archie Moore. Mapp, who had called her lawyer, refused to let the police in without a warrant, but they broke the glass on a back door and let themselves in. When she demanded to see a search warrant, one of the officers waved a piece of paper he claimed was a warrant. Mapp grabbed the paper and stuffed it in her blouse, and the officer reached in and grabbed it back. When she continued to resist, the police handcuffed her and searched her home. The police did not find the man they were looking for, but they found a trunk in the cellar with sexually explicit pamphlets, pictures, and a “little pencil doodle.” Mapp said the material belonged to a boarder who no longer lived there, but she was convicted on obscenity charges and sentenced to one to seven years in prison. The state never produced the paper the officer had waved or any evidence that there was a valid search warrant.
If Mapp had been tried in federal court, the seized evidence could not have been used against her. In 1914, the Court had adopted the “exclusionary rule” for criminal trials in federal court, which barred the use of evidence taken in violation of the Fourth Amendment. The rule kept police honest by removing any incentive to obtain evidence illegally, and it protected the integrity of the justice system by preventing prosecutors from benefiting from such evidence. At the time of Mapp’s arrest, however, the Court had not extended the exclusionary rule to state court trials, and Ohio did not have its own exclusionary rule.
On June 19, 1961, in Mapp v. Ohio, the Court overturned Mapp’s conviction, by a 6–3 vote. The Court said that the sexually explicit materials had been seized from Mapp’s home in violation of the Fourth Amendment, since there was no warrant and she did not consent. It then laid down a bold new constitutional rule: the federal exclusionary rule that had developed under the Fourteenth Amendment now applied to the states. The decision instantly expanded defendants’ rights nationwide—specifically, it meant that the roughly half of states that did not exclude illegally seized evidence at trial now were required to. The importance of the new rule was obvious immediately. The New York Times, in a front-page story, called it “the most significant limitation ever imposed on state criminal procedure by the Supreme Court in a single decision.”
There were many reasons for the Warren Court’s new interest in expanding the rights of people accused of crimes. In part, it reflected the Court’s new membership. The Court had changed with the arrival of Warren as chief justice in 1953, and it would change even more throughout the 1960s. President Kennedy’s two nominations in 1962, Goldberg and White, pushed the Court to the left, and Johnson’s nomination of Thurgood Marshall in 1967 did so even more. The result was a Court that was increasingly concerned about civil liberties, police misconduct, and all of the other issues embedded in criminal justice.
The Court’s championing of defendants’ rights was also a reflection of the times. With the rise of the civil rights movement, the nation was learning how much injustice was built into the fabric of American society. As civil rights protesters and Freedom Riders clashed with police, sheriffs, and state troopers across the segregated South, the public’s faith in law enforcement began to fray. There was a growing awareness that the criminal justice system was, in many cases, an extension of an oppressive system. “If you examine the criminal law decisions of the Warren Court,” Morton Horwitz, a Harvard law professor and legal historian, said, “you can grasp the extent to which race is the central, often unacknowledged, factor.”
Not least, there was the reality of how law enforcement behaved at the time. Big-city police departments and small-town sheriffs knew their actions would rarely be second-guessed, and they acted accordingly. The police grabbed people off the street and questioned them, with little or no basis. When officers arrested suspects or interrogated them at the station house, they broke rules, and occasionally bones. As a New York City deputy police commissioner said about obtaining a search warrant in the era before the Mapp ruling, “Evidence obtained without a warrant—illegally if you will—was admissible in state courts. So the feeling was: Why bother?” The Warren Court was bringing law to one of the most lawless parts of society: law enforcement.
In 1966, the Court issued a second landmark criminal law decision, Miranda v. Arizona, which limited the state’s ability to pressure criminal suspects for information. It held that statements made by suspects in police custody could not be used against them at trial unless they had been advised beforehand of their right to remain silent and to be represented by counsel—the famous Miranda warning. Miranda expanded suspects’ Fifth Amendment rights against self-incrimination the same way that Mapp had expanded suspects’ Fourth Amendment rights against unreasonable searches.
The ruling was one that Warren himself had been eager to hand down. He had told his law clerks to keep an eye out for a case that raised the issue of the right to counsel for suspects who were in police custody. The case the Court selected arose when Ernesto Miranda was arrested by the Phoenix police, who were investigating the kidnapping and rape of a local woman. After Miranda was questioned for two hours without being told he had the right to have a lawyer present, the police extracted a signed confession that was used to convict him.
Miranda was even more revolutionary than Mapp. Warren’s opinion had an undeniable legislative quality, setting out in detail the warning every police department in the country had to deliver to criminal suspects. The Court’s rules were so precise that police began carrying cards with the Miranda warning written out: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.”
Mapp and Miranda were only two of more than six hundred criminal law decisions in the Warren era. There was no question that these rulings had a momentous collective impact on the nation, though there was debate over whether they were a change for the better. To liberals, they represented nothing less than a “criminal justice revolution” that made society significantly fairer. Law enforcement was less enthusiastic. “I guess now,” the executive director of the International Association of Chiefs of Police complained after Miranda, “we’ll have to supply all squad cars with attorneys.”
Nixon’s nomination of Burger to be chief justice marked the end of the criminal justice revolution. In reporting on the appointment, The New York Times noted that Burger’s “outspoken opposition to the present trend among judges to broaden the rights of suspects” was consistent with the “specifications” for justices that Nixon had set during his presidential campaign. With Nixon’s quick nomination of Blackmun, Powell, and Rehnquist in the next two and a half years, Burger soon had a majority in place to take criminal law in the direction the president wanted.
The Burger Court wasted no time in unraveling Warren-era criminal justice decisions, starting with Miranda. In a 1971 case, Burger, writing for a five-justice majority, held that a criminal defendant’s confession taken without a Miranda warning could be used at trial, if it was being used to “impeach,” or contradict, his own testimony. It was less than two years into the Burger Court and already there was a new rule: illegally taken confessions usually could not be used at trial.
The Court also created exceptions for what kinds of police custody required a Miranda warning. In 1977, it held that Miranda did not apply when the police called a suspect in and questioned him at police headquarters if they did not arrest him or physically prevent him from leaving. Marshall, in dissent, protested that “the coercive elements” in the case were “so pervasive” that the Fifth Amendment required a Miranda warning.
There was more scaling back to come. In 1984, the Court created a “public safety” exception to Miranda. The case involved the arrest of a man who had been seen with a gun but did not have it on him when the police arrived. The police questioned him and he told them where the gun was. In an opinion by Rehnquist, the Court said that his statement was admissible in court, even though he had been handcuffed when he was questioned and he had not been given a Miranda warning. The holding that the police could question someone without a Miranda warning when the public’s safety was at issue was an exception that had the potential to grow very large.
With every passing year, there was less of Miranda left. Even when it became far more conservative, however, the Court was unwilling to go so far as to overturn the actual decision, which had become deeply entrenched in American law and culture. In 2000, Rehnquist, who was no great fan of the original ruling, wrote an opinion for a 7–2 majority reaffirming the 1966 decision. “A majority of the Court is unwilling to overrule Miranda,” one legal scholar observed, “however, a majority is also unwilling to take Miranda seriously.”
The post-Warren Court also hollowed out Mapp and its insistence that evidence that was taken without a warrant or consent could not be used at trial. As with Miranda, it created increasingly large exceptions that allowed prosecutors to use improperly seized evidence. In 1973, the Court endorsed a warrantless police search of a car when one passenger gave consent, even though he did not know he had the right to refuse consent. In dissent, Brennan wrote, “It wholly escapes me how our citizens can meaningfully be said to have waived something as precious as a constitutional guarantee without ever being aware of its existence.”
Conservatives had long wanted a “good faith” exception to the exclusionary rule that would apply when the police did not know they were seizing evidence illegally. In 1984, the Court created it. The Court ruled, by a 6–3 vote, that if the police had an invalid warrant but they reasonably, in good faith, believed it was valid, the evidence they found in a search could be used at trial. White, writing for the majority, said that more emphasis had to be placed on the “substantial social costs” of the exclusionary rule, including the fact that it could result in some guilty defendants going free.
The idealism of the Warren Court’s Mapp decision was by now long gone. Brennan, in dissent, objected that the Court was endorsing the use of “illegally obtained evidence” to prosecute defendants “whose rights have been violated—a result that had previously been thought to be foreclosed.” He argued that the Court was ignoring the substantial costs to society of accepting illegal searches. “It now appears,” Brennan said, “that the Court’s victory over the Fourth Amendment is complete.”
During the “war on drugs” of the 1990s, the Court endorsed another kind of controversial warrantless search, known as “working the buses.” The issue came to the Court in a case in which officers in Broward County, Florida, boarded an interstate bus and interrogated passengers, looking for drug traffickers. They questioned Terrance Bostick, a young black man who was traveling through to Atlanta. The officers awakened Bostick and asked for permission to search his bag, even though they did not have an “articulable suspicion,” the legal term for a specific reason to believe he might be breaking the law. Bostick consented, and the police found cocaine in his bag. He was found guilty of drug possession, but the Florida Supreme Court reversed his conviction, holding that the police had not properly gotten consent to the search, since a person on a bus would not have felt free to leave.
The Court reversed the Florida Supreme Court, by a 6–3 vote. O’Connor, writing for the majority, said the question was not whether Bostick felt free to leave the bus, but whether a reasonable passenger would feel free to say no to the search. The Court sent the case back to the Florida courts to answer that question. Marshall, in dissent, agreed with the Florida Supreme Court that Bostick’s consent was not freely given. He also noted that “suspicionless, dragnet-style” searches, a common tactic in the nation’s war on drugs, were dangerously eroding the right to privacy. He warned that “random knocks on the doors of our citizens’ homes seeking ‘consent’ to search for drugs cannot be far away.”
Marshall went on to make another point: that this sort of police activity is more likely to be aimed at racial minorities than at whites. He cited another case in which an officer involved in searching for drugs admitted that one factor police considered in deciding who might be a drug courier was whether the person was black. Searches of the kind the Broward County officers had engaged in were not, Marshall insisted, “completely random.”
There was another area in which the Court increased the search powers of police, which became a bigger issue over time: stop-and-frisk. The stop-and-frisk story is different from the others, because it was the Warren Court that first approved of stop-and-frisks, in a 1968 decision that was one of its few major rulings against the rights of criminal suspects. In that initial case, Terry v. Ohio, a plainclothes police officer stopped and patted down three men he suspected were casing a store to rob it. The Court held that an officer could stop and frisk someone on the street for weapons if he had reasonable suspicion that they were “armed and dangerous.” Terry expanded law enforcement’s authority to conduct searches, allowing them even when the police did not have “probable cause” for believing the subject had committed a crime. Terry was, however, still a narrow ruling, since the Court required an officer to have a reasonable basis for believing he was in a dangerous situation.
The post-Warren Court extended the stop-and-frisk doctrine well beyond the limited circumstances of that 1968 case in a variety of ways. In 2000, it approved a stop-and-frisk when a suspect fled from police in a high-crime area, even though the police had no data suggesting that fleeing in those circumstances made a person likely to be a criminal. The ruling greatly increased the ability of police to stop and frisk people for behaving “suspiciously.”
The expansion of stop-and-frisk was important because of the scale of the invasions of privacy involved. Working the buses was a specialized tactic, but stop-and-frisks were in widespread use across the country. In New York City alone, in just the year 2011, 685,000 people were subjected to stop-and-frisk before the program was stopped. In about 83 percent of the cases, the subject was black or Hispanic, although those groups were just over half the city’s population. Few law enforcement tactics in recent years have been met with more anger, protests, or charges of racism.
There was a third case, along with Mapp v. Ohio and Miranda v. Arizona, that formed the Warren Court’s criminal law “big three.” In Gideon v. Wainwright, the Court recognized a Sixth Amendment right to counsel for poor defendants. While Mapp was about what happened when the police showed up at the door to conduct a search, and Miranda offered protection when the police began asking questions, Gideon concerned what happened to criminal defendants from interrogation through trial. Gideon was the boldest of all in what it promised: a whole system of legal defense for poor criminal defendants in every part of the country. It is a promise the nation has still not managed to live up to.
Clarence Earl Gideon was convicted of breaking into a Panama City, Florida, poolroom. While he was behind bars, he sent an appeal to the Supreme Court, written in pencil on lined prison paper, challenging his conviction, saying that his request for a court-appointed lawyer at trial had been wrongly denied. The Court accepted Gideon’s case, and on March 18, 1963, stating that the Sixth Amendment guaranteed poor defendants the right to counsel, it unanimously overturned his conviction.
Black, writing for the Court, noted that governments spend vast sums to prosecute people accused of crimes, and defendants who have money hire the best lawyers they can. That the government and wealthy defendants did this, he said, were “the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries.” The right to counsel “may not be deemed fundamental and essential to fair trials in some countries,” Black said, “but it is in ours.” The same day, in Douglas v. California, the Court ruled that the Fourteenth Amendment Equal Protection Clause guaranteed poor people convicted of a crime appointed counsel to represent them on their first appeal.
Gideon captured the popular imagination in a way the Warren Court’s other criminal justice rulings had not. It was not viewed as a court-imposed special privilege for criminals, as the exclusionary rule and the Miranda warning were by many. It was, rather, seen as a reaffirmation of a hallmark of the American system of justice: the adversarial trial, at which the truth is presumed to emerge when both sides have a fair opportunity to make their case. The nation rallied around the decision. “If an obscure convict named Clarence Earl Gideon had not sat down in his prison cell with a pencil and paper to write a letter to the Supreme Court the vast machinery of American law would have gone on functioning undisturbed,” Attorney General Robert F. Kennedy declared. “But Gideon did write that letter and the whole course of American legal history has been changed.” Anthony Lewis, a New York Times journalist, told the story of the case in the bestselling book Gideon’s Trumpet, which was turned into a movie, with Henry Fonda as Clarence Gideon and John Houseman as Earl Warren.
When the Warren Court ended, it did not take long for the Burger Court to begin eroding the right to counsel. It said that the right that Gideon recognized applied only to “critical stages,” and it began holding that some important parts of the government’s efforts to convict a suspect were not critical. In 1972, when all four of the Nixon nominees were in place, the Court ruled, 5–4, that a police lineup used to identify a suspect who had not yet been charged with a crime was not a critical stage and poor defendants were not entitled to have lawyers appointed for them. The ruling was clearly at odds with the logic of Black’s opinion in Gideon: most wealthy defendants who were told that they had to appear in a police lineup would have a lawyer present for it.
The Burger Court also limited the right to counsel on appeal. On the day it decided Gideon, the Court said that poor defendants had the right to an appointed lawyer on their first appeal. In 1974, it held that there was no right to appointed counsel for any further appeals. Rehnquist, writing for the majority, said that poor defendants had an “adequate opportunity” to present their claims even if they were forced to navigate the higher levels of the appellate court system on their own. In dissent, Douglas, writing for himself, Brennan, and Marshall—the remnants of the Warren Court liberal majority—insisted that the “same concepts of fairness and equality” that required counsel for the first appeal should require it for later ones.
The most serious way the Burger Court eroded Gideon, however, was by adopting an undemanding standard for what constitutes acceptable legal representation for poor defendants. The Warren Court said that poor people had a right to appointed counsel under the Sixth Amendment, but it did not say how high the quality of that representation had to be. The Court considered that question in 1984 in Strickland v. Washington. David Leroy Washington was convicted of three murders in Dade County, Florida. The State of Florida appointed a defense attorney to represent Washington, who pleaded guilty. The judge sentenced Washington to death for each of the three murder counts. In a post-conviction challenge to his death sentences, Washington, represented by a new lawyer, objected to the representation he had received at trial.
Washington’s new lawyer made a strong case that his first lawyer had failed to investigate his background properly and had not presented mitigating evidence that might have persuaded the judge not to impose the death penalty. The lawyer submitted new evidence, including affidavits from fourteen friends, relatives, and acquaintances saying they would have testified on his behalf, as well as psychiatric evidence that could have helped his case. The trial lawyer testified at Washington’s post-conviction hearing that he had felt “hopelessness” and doubted his client could avoid the death penalty. He also testified that he had made little attempt to develop evidence of Washington’s psychological problems.
On May 14, 1984, the Court held, by a 8–1 vote, that Washington’s legal representation had been good enough. O’Connor, writing for the Court, insisted that the first lawyer’s decision not to seek more character or psychological evidence was a reasonable one. Even if it had not been, she said, Washington could not show that he was prejudiced by it, because there was no reasonable probability that the omitted evidence would have changed the sentencing judge’s mind.
The Court’s test made it extremely difficult for poor defendants to successfully challenge the quality of their representation. To win a retrial, they had to show both that their lawyer’s performance was “deficient” and that if it had not been, there was a “reasonable probability” the case would have come out differently. The second prong of the test was particularly daunting, and Marshall, in dissent, questioned the logic behind it. He insisted that there was no way to know whether a defendant would have prevailed with a better lawyer, because “seemingly impregnable cases can sometimes be dismantled by good defense counsel.”
If there was any doubt that the Court had set a low bar for what constituted effective assistance of counsel, the trial and appellate courts that applied Strickland v. Washington made it clear. In case after case, they rejected claims by poor defendants that their lawyers had not done an adequate job—even when the quality of the representation was shockingly poor. One extreme area involved lawyers who had slept through their client’s trial. A whole jurisprudence developed on how much sleeping, during what parts of a trial, was acceptable. In one case in Michigan, Joseph Muniz, who was convicted of assault with intent to commit murder, challenged his conviction because a juror saw his lawyer sleeping during his cross-examination. The prosecutor asked Muniz a series of questions that led to the admission of additional evidence against him, allegedly while his counsel was asleep. In 2011, the Cincinnati-based U.S. Court of Appeals for the Sixth Circuit rejected Muniz’s claim of ineffective assistance of counsel. The court said Muniz failed to meet the Strickland test, because he had not shown that his lawyer’s sleeping affected the outcome of his case. It led one exasperated legal commentator to ask, “If an attorney sleeping through examination of his client by the government is not enough to trigger relief, what is?”
Drunk lawyers could also meet the Strickland standard. In 2014, Robert Wayne Holsey was executed by the State of Georgia for murder. Holsey, who had limited mental capacity, was represented by a court-appointed lawyer who admitted to drinking as much as a quart of vodka a day during the trial, while he was also preparing to be criminally prosecuted for stealing client funds. The lawyer himself said that he “probably shouldn’t have been allowed to represent anybody” at the time. Although the lawyer failed to submit evidence that might have persuaded the jury not to vote for the death penalty, the Atlanta-based U.S. Court of Appeals for the Eleventh Circuit and the Supreme Court upheld Holsey’s death sentence.
Lawyers could also use drugs and still meet the standard for effective assistance of counsel. In 1990, New Yorker Edwin Badia challenged his murder conviction, which came after a trial at which his defense lawyer used heroin and cocaine. The lawyer was later convicted of conspiracy to distribute narcotics. The New York State appellate court that heard Badia’s appeal conceded that his lawyer’s conduct was “reprehensible,” but it upheld his conviction.
While the Warren Court promised poor defendants a lawyer, the Burger Court said that lawyer barely had to be competent. Strickland gave states a green light to operate indigent defense systems that were underfunded and structurally incapable of providing adequate representation. In a landmark 2004 report, Gideon’s Broken Promise, the American Bar Association, the organization that represents the nation’s legal establishment, used words like “alarming” and “national crisis” to describe the state of legal representation for poor defendants. The ABA found that funding for indigent defense was so inadequate that it was difficult to recruit capable lawyers or get their best efforts. Many jurisdictions had extremely low caps on the amount a court-appointed lawyer could charge for representing a poor person, even in serious and complicated cases.
Recent studies of indigent defense programs in specific states identified profound inadequacies. A 2018 report on Mississippi found that poor defendants charged with felonies were not given lawyers between arrest and arraignment, a period during which they could be in jail for as much as a year. The state’s cap of $1,000 in fees per case meant that when defendants got a lawyer, they were often pressured to plead guilty so the lawyer did not need to investigate, do legal research, or participate in a trial. If a case did go to trial, it could be financially ruinous for the lawyer. In one capital case that was vigorously defended at trial by two experienced death penalty lawyers, the attorneys earned about $2 an hour. “The court reporter,” the judge noted, “was paid far more than defense counsel.”
Not surprisingly, the quality of the lawyers who represent indigent defendants in states that rely on appointed counsel is in many cases extremely low. The 2018 Mississippi report noted that since there were no standards for establishing that a lawyer was competent for a specific assignment, a new law school graduate who had just passed the bar could be assigned to represent a defendant facing life in prison. In Kentucky, fully one-quarter of the prisoners recently on death row had lawyers at trial who were later disbarred or resigned to avoid disbarment. As one critic said, the Strickland standard, in the real world, requires the state to provide little more than “a warm body with a law degree.”
In jurisdictions that use public defenders rather than appointed private lawyers, the caseloads often make it almost impossible to provide clients with adequate representation. The National Advisory Commission on Criminal Justice Standards and Goals recommended that defense lawyers handle no more than 150 felonies a year, or 400 misdemeanors. The American Bar Association report found that in parts of New York State, caseloads were as high as 1,600 per lawyer per year. “Public defenders are the pack mules of the system,” Ed Monahan, the head of Kentucky’s public defender’s office, said shortly before retiring. “Pack mules can carry a lot, but you put one more box on an overburdened mule, and it won’t be able to function.”
The same American Bar Association report found that poor defendants rarely have their cases investigated in a serious way, either because the funds are not available or their overworked lawyers do not request them. As a result, poor defendants almost invariably go to trial at a significant disadvantage, with the prosecutors having access to extensive evidence collected for them by law enforcement and the defense often having little more than the defendant’s own testimony. The report cited a survey of felony case files from contract defenders in four Alabama judicial circuits that found that the lawyers had filed no motions for funds for investigators or experts in 99.4 percent of the cases.
The nation’s founders believed so deeply in jury trials that they put “the right to a speedy and public trial, by an impartial jury,” in the Sixth Amendment. The guarantee rings hollow, however, because of the way in which the Court has interpreted the right to appointed counsel. When a poor defendant cannot count on having a lawyer who will investigate his case and prepare the best defense, or when an assigned lawyer may be incompetent or drunk, it makes sense to accept a plea bargain, whether the defendant is guilty or not.
Today, few criminal defendants actually exercise their right to a jury trial. Before the 1960s, between one-fourth and one-third of state felony charges were resolved with a trial. Now, about one-twentieth are. The current ratio works well for the state courts and prosecutors’ offices, which lack the resources to bring a significant percentage of the criminal cases they handle through to trial. It does not, however, serve the core purpose of the justice system: to separate the innocent from the guilty and to ensure that all defendants have a fair chance to contest the charges against them.
When poor defendants enter plea-bargaining negotiations, the quality of legal representation they receive is even lower than it is for trials. The American Bar Association reported that defendants facing years in prison often met their lawyers for the first time at a hearing where they had to decide on the spot whether to sign away their freedom. In one Louisiana parish, according to an ABA source, in 83 percent of cases there was nothing to suggest that the public defender had ever met with his client out of court. The ABA cited a source in Alabama who said that lawyers who defend poor defendants there on a contract basis “basically do nothing but process defendants to a guilty plea in as expeditious a manner as possible.” The report had a name for this kind of representation: “meet ’em and plead ’em lawyers.”
While the Court has helped push poor defendants to plea bargain by setting such low standards for the quality of legal representation they are entitled to, it has also given prosecutors extraordinary power in the plea-bargaining process. In a 1978 case, the Court strongly endorsed aggressive plea bargaining by prosecutors, even when it included threats to retaliate harshly against defendants who refused to accept a deal. The case, Bordenkircher v. Hayes, was brought by Paul Hayes, a Kentucky man who was indicted for passing an $88.30 forged check, which was punishable by two to ten years in prison. The prosecutor offered Hayes five years if he pleaded guilty and said that if Hayes turned it down, he would be charged under the state’s Habitual Criminal Act and, because of his prior offenses, would face a mandatory life sentence. Hayes rejected the deal, was convicted, and received a life sentence. He argued that the prosecutor’s bullying approach, threatening him with a more serious charge and life in prison if he did not accept the plea bargain, violated due process. The Cincinnati-based U.S. Court of Appeals for the Sixth Circuit agreed, stating that the Due Process Clause “protected defendants from the vindictive exercise of a prosecutor’s discretion.”
The Court reversed the appeals court and upheld Hayes’s life sentence. Stewart, writing for a five-justice majority, conceded that threatening tougher punishment “clearly may have a ‘discouraging effect on the defendant’s assertion of his trial rights,’” but he insisted that the Constitution did not prohibit that sort of high-stakes coercion. He went on to praise plea bargains as “important components of this country’s criminal justice system” that, if properly done, “can benefit all concerned.”
The Court could have taken a different approach. It could have recognized that in a constitutional system founded on the right to trial by jury, prosecutors should not be allowed to blackmail defendants into waiving that right. It could have held that due process requires a system in which defendants accept plea bargains because they are actually guilty, not because they are afraid to insist on their innocence. Instead, the Court in Bordenkircher allowed prosecutors to bring extreme charges, “no matter how unjust,” as long as they could make the facts fit, argued John Pfaff, a Fordham law professor who studies mass incarceration, in his book Locked In. That is “a tremendous amount of power for one official to have,” Pfaff said, “made all the more powerful by the fact that prosecutors generally wield it out of public view.”
Plea bargaining may be an efficient way of moving defendants through overburdened criminal courts, but it is not a system designed to separate the guilty from the innocent. The more prosecutors are allowed to threaten a defendant with added charges and harsher punishment for turning down their offer—to impose a “trial penalty,” in plea-bargaining terminology—the more likely it is that innocent defendants will waive their right to a trial and enter a plea. In his Bordenkircher dissent, Blackmun described the decision defendants are forced to make as “a devastating gamble.”
There is no doubt that, owing to the deficiencies in legal representation given to poor criminal defendants, innocent people are going to prison. A 60 Minutes exposé of Louisiana’s indigent defense system painted a bleak picture of the human cost of these failures. In the report, public defenders described the unrelenting pressure created by their excessive caseloads. New Orleans chief public defender Derwyn Bunton, whose office announced in 2016 that it would no longer accept the most serious felony cases, compared his city’s justice system to the famous I Love Lucy episode in which Lucy tries to keep up with the chocolates that are moving across a factory conveyor belt. Defendants move through the system so quickly, he said, that there is no time to figure out whether they are actually guilty.
The 60 Minutes report included an interview with Donald Gamble, a New Orleans resident who was jailed for sixteen months awaiting trial on armed robbery charges before a lawyer accidentally discovered that he was innocent. It was not Gamble’s lawyer who figured it out, but a Tulane University law professor who was looking into inadequacies in the legal representation provided by the public defender’s office. While reviewing Gamble’s case as part of her research, the professor noticed that he did not match the perpetrator caught on surveillance video. She reported what she had discovered, and within days the charges against Gamble were dropped. Gamble told 60 Minutes that if he had not been freed by the professor’s chance involvement in his case, he likely would have accepted a plea deal, despite his innocence. He could have been sentenced to five years in prison, but he would have avoided the possibility of being convicted at trial and sent away for life. As it was, Gamble lost not only sixteen months of his life, but several teeth, which were knocked out in one of several jailhouse beatings he endured before he was freed.
The problem 60 Minutes found in New Orleans is a national one. Defendants all across the country plead guilty every year to crimes they did not commit. The Innocence Project, which uses DNA to exonerate wrongly convicted people, recently reported that more than 11 percent of the 365 people they have shown to have been wrongly convicted pleaded guilty to crimes they did not commit. The National Registry of Exonerations, which is maintained by Michigan and Northwestern Law Schools, recently reported similar results: of the more than 2,400 exonerations on its list, 12 percent involved false confessions.
Judge Jed Rakoff, of the U.S. District Court for the Southern District of New York, who regularly presides over criminal cases, has argued that a sizable number of defendants are likely pleading guilty to crimes they did not commit. In an article entitled “Why Innocent People Plead Guilty,” he observed that a typical criminal defendant, with limited financial resources and a troubled past, understands that even if he is innocent, he may not have much chance of mounting a successful defense. “If his lawyer can obtain a plea bargain that will reduce his likely time in prison,” Rakoff said, “he may find it ‘rational’ to take the plea.”
If a defendant is found guilty, sentencing follows, and that is another area in which the Court has turned the law against defendants. In the 1980s and ’90s, a “get tough on crime” movement led to tougher sentencing laws being adopted at the federal and state levels. The Court could have reined in the excesses of the movement by applying the kinds of constitutional standards it used to limit punitive damages awards against corporations. Instead, it became a willing participant in the nation’s mass incarceration crisis.
California became a leader in the tougher-sentencing movement in 1994, when it adopted a “three strikes and you’re out” law, partly in response to the highly publicized kidnapping and murder of twelve-year-old Polly Klaas. The new law required a sentence of twenty-five years to life for offenders convicted of a felony who had previously committed two serious or violent felonies. California was not the first state to adopt a repeat-offender law, but its three-strikes law became a trendsetter. Other states followed, and eventually more than half had three-strikes laws. There were also mandatory minimum sentences in all fifty states and laws in forty-nine states allowing for life without parole for certain crimes. The federal government had its own strict sentencing provisions. In 1984, 1986, and 1994, Congress enacted laws ending federal parole, establishing mandatory minimum sentences, and adopting three-strikes at the federal level.
Although three-strikes statutes and other tough sentencing laws were promoted as a way to get the most hardened criminals off the streets, they were often used on people who did not fit that profile. About eight years into the new sentencing regime in California, there were more than three hundred inmates in the state’s prisons who were serving sentences of twenty-five years to life for a third strike of petty theft. In 2002, one of those inmates, Leandro Andrade, brought a constitutional challenge to the law.
Andrade, a father of three and an Army veteran, was arrested at a Kmart in Southern California for shoplifting five children’s videotapes, including Casper and Snow White, worth $84.70. Two weeks later, at another Kmart, he shoplifted four more, including Cinderella and Free Willy 2, worth $68.84. Andrade’s shoplifting would normally have been petty theft, punishable by a fine or a short jail sentence. Under California law, however, misdemeanor petty theft becomes a felony if the offender had a prior property offense conviction, which Andrade did. As a result, his shoplifting incidents were converted to two felonies. Andrade was convicted under the three-strikes law, and even though he had never committed a violent crime, he was given two sentences of twenty-five years to life. Andrade was thirty-seven when he was convicted, and he would not be eligible for parole until he was eighty-seven.
For critics of harsh and inflexible sentencing laws, Andrade’s sentence provided a nearly ideal test case. It presented the Court with a sympathetic, nonviolent plaintiff who, because of two minor shoplifting incidents, would spend the rest of his life, or close to it, behind bars. Andrade challenged his sentence as a violation of the Eighth Amendment, which prohibits “cruel and unusual punishments.” The San Francisco–based U.S. Court of Appeals for the Ninth Circuit ruled for Andrade, holding that his sentence violated the Eighth Amendment because it was “grossly disproportionate to his crimes.”
On March 5, 2003, the Court reversed the Ninth Circuit and upheld Andrade’s sentence, by a 5–4 vote, along ideological lines. O’Connor, writing for the majority, conceded that the Court had previously acknowledged that a sentence could be so disproportionate to the crime that it violated the Eighth Amendment, but she said that it applied only to “the extraordinary case.” Andrade’s sentence, she said, did not rise to that level. Her opinion, which focused on the proper interpretation of the Court’s precedents from the 1980s and ’90s, did little to explain what she thought would be a constitutionally disproportionate sentence, if sentencing a thirty-seven-year-old man to prison at least until he was eighty-seven for stealing $153.54 in videotapes did not meet the bar. Souter, writing for the four liberal justices, said in dissent that “if Andrade’s sentence is not grossly disproportionate, the principle has no meaning.”
Neither the majority nor the dissent mentioned the Court’s decisions involving punitive damages against corporations, but they added a whole new level of outrage to the ruling. At the time of its decision in Leandro Andrade’s case, the Court had already overturned the $2 million punitive damages award against BMW for fraudulently selling damaged but repaired cars as new, saying that the award was “grossly excessive” and “transcends the constitutional limit.” Just one month after affirming Andrade’s sentence, the Court would overturn the $145 million punitive damages award against State Farm for egregiously deceiving and mistreating a customer. In that case, it would say that a punitive damage award any larger than $9 million would likely be unconstitutional.
The Court had two very different ideas about proportionality of punishment: one for corporations under the Fourteenth Amendment Due Process Clause and another for people under the Eighth Amendment. The Due Process Clause, it said, did not allow a jury to punish one of the world’s wealthiest companies with a punitive damages award of $145 million, which was equal to 0.29 percent of its annual revenue—barely enough to get the attention of the company’s leadership. The Eighth Amendment did, however, allow California to put a thirty-seven-year-old Army veteran and father who engaged in minor shoplifting behind bars until he was at least eighty-seven.
The post-1969 Court’s criminal justice rulings, which have diminished the rights of suspects, defendants, and people convicted of crimes, are not merely individual tragedies for people like Donald Gamble and Leandro Andrade. They have also created systematic injustice, whose impact is felt broadly across society. These rulings are all drivers of the nation’s extraordinarily high levels of incarceration. The United States’ inmate population of nearly 2.3 million is the world’s largest. The United States’ incarceration rate, 698 per 100,000, is the world’s highest—about five times the rate of the United Kingdom. The United States has about 4.3 percent of the world’s population but about 22 percent of its prisoners.
It was not always so. Mass incarceration in the United States started in the early 1970s, the era in which the Nixon Court began. The incarceration rate was about 100 per 100,000 for much of the twentieth century, but prison populations began to soar starting around 1972. After decades of increases, the incarceration rate topped out in 2008 at 760 per 100,000. There are many reasons the prison population expanded during these years, but changes in sentencing laws and policy were a major driver. The incarceration rate has dipped recently, but it remains extremely high by historical and international standards.
Many experts argue that there are significantly more inmates behind bars than need to be there to keep crime rates low. In its report “How Many Americans Are Unnecessarily Incarcerated?” the Brennan Center for Justice contended that about 39 percent of the United States prison population, or about 576,000 people, were incarcerated for little public safety reason. The report argued that if many inmates were given shorter sentences or alternatives to prison, such as drug treatment, both the inmates and society would be better off. Another leading criminology expert has said that many inmates over age forty could be safely released, because criminals generally “age out” of crime.
The post-1969 Court’s criminal law decisions have increased the probability of a suspect becoming an inmate at every stage of the criminal justice process. The rulings eroding Mapp have made it more likely that a suspect will be searched and that incriminating evidence will be seized. The loopholes the Court has created in Miranda have increased the chances that a suspect will say something incriminating to a police officer or be identified in a police lineup. The Court has also made it more likely that people, particularly poor people and racial minorities, will be stopped and frisked on the street, which can lead to the police finding evidence leading to a prosecution. The Court’s rulings have made it more likely that evidence seized in any of these ways will be used at trial. The decision on DNA swabbing added a high-tech advantage to law enforcement’s arsenal in connecting people to crimes in which they were not even suspects.
The extraordinarily low standard the Court set for effective assistance of counsel has made it more likely that defendants who are innocent will be convicted or will accept a plea bargain rather than risk going to trial. The Court’s endorsement of coercive plea-bargaining tactics by prosecutors has provided another incentive for innocent defendants to plead guilty and for defendants who are offered a bad deal in plea bargaining to nevertheless accept it. As Judge Rakoff noted, under these circumstances even innocent defendants may “find it ‘rational’ to take the plea.”
Tough sentencing laws contribute to the nation’s high incarceration rates in at least two ways. Most obviously, they lead to large numbers of inmates being kept behind bars who otherwise would not be there, and who in many cases may not need to be there. Sentencing decisions rarely make headlines, particularly when the issue is a defendant being given more prison time than the crime warrants. Occasionally, however, a news story will show the distortive impact that sentencing laws can have. In 2017, Iowa grandmother Susan Rice, who became addicted to methamphetamine, was sentenced for conspiracy to distribute drugs because she drove a dealer around. Under a mandatory sentencing law, she had to receive between five and forty years in prison. The federal judge who sentenced her objected publicly, saying she deserved a year to eighteen months, but he was forced to give her at least five years. “I think it’s a miscarriage of justice,” he said.
The other way tough sentencing laws drive up the prison population is by giving prosecutors an intimidating weapon to use in plea bargaining. These laws allow prosecutors to demand heavy sentences from defendants who accept a guilty plea. They also create pressure on innocent defendants to accept a plea bargain. Judge John L. Kane Jr., a senior judge on the federal district court in Denver, has spoken out about how often prosecutors use tough sentencing laws to extract guilty pleas from defendants who might otherwise try to assert their innocence. “How many times is a mandatory sentence used as a chip in order to coerce a plea?” asked Judge Kane. “They don’t keep records.” He noted, however, that “we hardly ever have trials anymore.”
There is another trend in the criminal justice system that has driven the nation’s incarceration rate up: the increased use of cash bail. About one-quarter of the incarcerated population, or roughly 460,000 people, who are behind bars on an average day are pretrial detainees who have not been convicted of a crime, according to a report by the Brookings Institution. Some of them are not released before trial because a judge has determined that they pose too great a danger to the public or too great a flight risk. Many more, however, are being held because cash bail was set and they were too poor to pay it.
The use of cash bail has been soaring. In 1990, only a little more than half of defendants, 53 percent, were required to post bail to be free pending trial. By 2009, 72 percent of defendants were. Many are accused of property or public order offenses. More than two-thirds of defendants with nonviolent felony charges had bail of $5,000 or higher, according to Brookings. A New York City study found that only 7 percent of criminal defendants met bail set at $5,000. The cash bail system is one of the clearest examples of class bias in the justice system: the people who remain behind bars after bail has been set are not the most dangerous, or the most likely to flee the jurisdiction, but the ones who do not have the money to buy their freedom.
The Court could significantly reform the cash bail system, but it has chosen not to. The Eighth Amendment expressly prohibits “excessive bail,” but the Court has not interpreted it in ways that help people trapped behind bars before trial because they cannot afford bail. In 2019, the Court refused to consider the case of Maurice Walker, who was charged with walking while intoxicated and held in a Georgia jail for six days because he could not post bail. The crime he was accused of did not carry jail time, so he served more time for being unable to meet bail than he would have if he had been immediately convicted.
Reformers have identified the cash bail system as one of the main sources of unfairness in the justice system. The American Bar Association has argued that jailing defendants “solely because they cannot afford to purchase their freedom,” without considering their ability to pay, violates the Fourteenth Amendment Equal Protection and Due Process Clauses. The American Civil Liberties Union launched a nationwide campaign to end wealth-based incarceration in 2017, declaring, “We can’t end mass incarceration without ending money bail.” Celebrities have weighed in, including Shawn Carter, better known as Jay Z, who wrote an opinion piece for Time headlined “For Father’s Day, I’m Taking On the Exploitative Bail Industry.”
Every phase of the criminal justice system—from investigation of crimes to plea bargaining to trials to sentencing—is infected by racial discrimination, which adds another level of systematic bias and further drives mass incarceration. The Court rarely discusses these racial inequities, and when it does, it is often in a mention in a dissent, such as Marshall’s discussion in the Florida “working the buses” case, of how it was not “completely random” whom the police questioned.
There is, however, considerable evidence that the racial discrimination is real and pervasive. In the wake of protests over police conduct in Ferguson, Missouri, and other cities, The New York Times examined tens of thousands of traffic stops in Greensboro, North Carolina. North Carolina is the state that collects the most detailed data on traffic stops, and Greensboro is a racially diverse city. The Times found that police “used their discretion to search black drivers or their cars more than twice as often as white motorists—even though they found drugs and weapons significantly more often when the driver was white.” The Times determined that similar disparities existed throughout North Carolina. It also reported that the police were more likely to stop black drivers for no apparent reason and that they were more likely to use physical force with black drivers, even if they did not encounter resistance.
When the San Francisco District Attorney’s Office investigated police practices, it came up with similar results. It found, based on the work of a task force of retired federal and state judges, that there were significant racial disparities in traffic stops, searches, and arrests in San Francisco, particularly between black and white drivers. Black people accounted for less than 15 percent of all stops in San Francisco in 2015 but more than 42 percent of the non-consent searches following stops. This focus on blacks was not justified by the results of those searches. Blacks and Hispanics had the lowest “hit rates”—the rate at which searches found contraband. Whites searched without consent were about twice as likely as blacks searched without consent to be carrying contraband.
There is also a growing body of evidence showing racial disparities in sentencing. In 2017, the U.S. Sentencing Commission found that the average federal sentence for black men was 19.1 percent longer than for white men for the same crime, even when criminal history and other factors were held constant. Paul Butler, a professor at Georgetown Law School and a former federal prosecutor, said the study showed that “race infects” each “stage of the process” in the criminal justice system. In 2016, the Sarasota Herald-Tribune investigated sentencing in Florida, using two state databases with tens of millions of records. It found that when blacks and whites committed the same crime and scored the same number of points—reflecting the severity of the crime, the offender’s prior record, and other factors—blacks received longer sentences in 60 percent of felony cases.
The Court had a chance to do something about the epidemic of racial bias in the criminal justice system in 1987, in a lawsuit brought by the NAACP Legal Defense Fund. The case was a challenge to Georgia’s death penalty by Warren McCleskey, a black death-row inmate convicted of killing a white police officer. McCleskey argued that Georgia had applied the death penalty in a discriminatory way, in violation of the Equal Protection Clause.
The NAACP Legal Defense Fund submitted a study of the role of race in the death penalty, based on an analysis of more than two thousand Georgia murder cases. The study found that blacks were 1.1 times as likely to receive the death penalty as other defendants. It found a much larger disparity, however, based on the race of the victim. Killers of whites were 4.3 times as likely to be sentenced to death as killers of blacks. McCleskey was in the most disadvantaged group, as a black defendant with a white victim. He argued that Georgia’s death penalty violated the Equal Protection Clause.
The Court in McCleskey v. Kemp rejected McCleskey’s claim by a 5–4 vote, along ideological lines. Powell, writing for the Court, rejected the idea that the criminal justice system could be challenged through evidence of racial disparities. Mere statistical evidence about how race affected capital punishment was not enough, Powell said. For McCleskey to have his sentence reversed on the grounds of racial discrimination, he would have to present specific evidence of racial discrimination in his own case. Powell also mentioned something that revealed the Court’s deeper concern. “If we accepted McCleskey’s claim,” he said, “we could soon be faced with similar claims as to other” kinds of criminal sentences—and there might be claims that there were disparities toward other minority groups, or toward women.
Brennan, in dissent, said the majority had missed the essential point. When McCleskey submitted strong statistical evidence about race in capital cases in Georgia, he was presenting important evidence about his own case. If McCleskey “asked his lawyer whether a jury was likely to sentence him to die,” Brennan said, a “candid reply” would have begun with the lawyer saying that “few of the details of the crime or of McCleskey’s past criminal conduct were more important than the fact that his victim was white.”
In his dissent, Brennan also addressed the majority’s concern that if McCleskey won, there would be challenges to other kinds of criminal sentences and ones brought by other minority groups. The majority was expressing “a fear of too much justice,” Brennan argued. “Surely,” he said, the majority believed that “if striking evidence indicated that other minority groups, or women, or even persons with blond hair, were disproportionately sentenced to death,” that “would be repugnant to deeply rooted conceptions of fairness.” But Brennan was giving the Court too much credit. The majority had made clear that it did not believe that at all.
Many civil rights advocates have come to regard McCleskey as one of the Court’s worst rulings. On its twenty-fifth anniversary, one legal scholar declared that it had become “firmly entrenched as a resident in the exclusive but not so desirable neighborhood of Notorious Cases.” Anthony Amsterdam, a professor at New York University Law School, called it “the Dred Scott decision of our time”—invoking the Court’s 1857 decision holding that an enslaved man had no right to sue for his freedom—and one “for which our children’s children will reproach our generation and abhor the legal legacy we leave them.”
Critics of mass incarceration have identified McCleskey v. Kemp as an important contributing factor. If the Court had ruled for McCleskey, it could have been transformational. Powell acknowledged as much when he wrote for the Court that “McCleskey’s claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system.” The decision could have pushed Congress, state legislatures, and the lower courts to root out racial bias throughout the justice system, including in sentencing. The result would not only have been a fairer system, but likely one with a lower overall rate of incarceration as the extra prison time being imposed on nonwhites was removed.
Instead, the Court has ensured that the criminal justice system need not confront these issues. Michelle Alexander, the professor and author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness, said that the Court had “immunized the criminal justice system from judicial scrutiny for racial bias.” She noted that since McCleskey there have been few racial discrimination challenges to “sentencing schemes, patterns, or results.” The reason, she said, is simple: “the exercise is plainly futile.”
The Court’s harsh approach to most suspects and defendants is even more striking when contrasted with its treatment of white-collar defendants. In criminal cases involving wealthy and powerful defendants or ones who do not fit the “traditional” model of what a criminal is, the Court has frequently second-guessed prosecutors, given defendants the benefit of the doubt, and found ways of reading criminal laws narrowly to overturn convictions. In recent decades, the Warren Court’s fierce protection of defendants’ rights and its skepticism about prosecutors and police have lived on in one area: cases involving white-collar criminals.
There are many criminal cases in which the Court has demonstrated this sympathy. In 1983, it considered the case of Raymond Dirks, an officer of a firm that provided investment analysis of insurance company stocks to institutional investors. Dirks received insider information that an insurance company had fraudulently overstated its assets. He told investors what he had learned, and some sold their stock in the company as a result. The Securities and Exchange Commission charged Dirks with violating the Securities Act of 1933 by providing insider information. The commission said that when people are tipped off with insider information, “regardless of their motivation,” they must disclose the information publicly or refrain from trading. Instead Dirks gave the information to investors who traded on it. The Securities and Exchange Commission found Dirks guilty and censured him.
The Court reversed Dirks’s censure by a 6–3 vote, with all five conservative justices in the majority. Powell, writing for himself, Burger, O’Connor, White, Rehnquist, and Stevens, said that Dirks was not liable because he had not personally profited from the insider information—even though he gave it to clients of his who did. In dissent, Blackmun, writing for himself, Brennan, and Marshall, said that Dirk had clearly violated the Securities Act. The majority had simply invented a new rule, he said, that to be convicted of insider trading a person must have acted “from a motive of personal gain.” The majority then used this “innovation” in the law, Blackmun said, to acquit Dirks even though he had clearly violated the law.
The Court decided another white-collar criminal case in 1991, the same year it decided the “working the buses” case of Terrance Bostick, the young black man in Florida. John Cheek was an American Airlines pilot who was part of a “tax protest” movement, and had come to believe that wages were not income for purposes of the tax law. Cheek did not file tax returns for six straight years, except for one year when he filed a frivolous one. He said at trial that, based on his own research and the teachings of the tax protest movement, he did not believe he had to pay taxes. Cheek was found guilty by the jury that heard his case. He challenged his conviction, arguing that the tax law said that violations had to be “willful,” and the judge had not properly instructed the jury on how his principled opposition to paying taxes should be treated.
The Court reversed Cheek’s conviction, by a 6–2 vote. White, writing for the majority, said the jury should have been told that if Cheek truly believed he did not have to pay taxes, no matter how irrational his belief, he could not be convicted, since the law contained a requirement that the evasion be “willful.” White said Cheek could possibly be convicted on retrial, but the jury would have to determine specifically that his belief was not sincere.
The ruling was taking a highly indulgent view of tax avoidance. In dissent, Blackmun insisted that it was not a complex case, since it was about “the income tax law in its most elementary and basic aspect: Is a wage earner a taxpayer and are wages income?” It defied belief, he said, that, more than seventy years after the introduction of the federal income tax, a taxpayer “of competent mentality” could think his wages were not taxable. The decision, Blackmun said, invited taxpayers to “cling to frivolous views of the law” to avoid paying taxes.
Cheek did not win in the end. He was retried, and when the jury was directly instructed to consider whether he actually believed that he did not have to pay taxes, it convicted him again. The Court’s ruling was extraordinary, however, in its willingness to let Cheek make a defense based on nonbelief in the law. It was particularly notable that the law-and-order conservatives—including Rehnquist, Scalia, O’Connor, and Kennedy—were in the majority, arguing that Cheek’s years of intentional tax avoidance were not necessarily criminal. The dissenters, Blackmun and Marshall, who wanted to uphold the conviction, were two of the Court’s most liberal members.
There were more rulings like these, including one in which the Court reversed the conviction of a high-rolling gambler convicted of financial improprieties at a Nevada casino, also because it was not convinced that his actions were “willful.” It was clear to many observers what the Court was doing. In 2015, after it had reversed another white-collar criminal conviction, The New York Times ran an analysis by a criminal law professor describing the pattern. The article, headlined “Narrowing the Definition of White-Collar Crimes,” said the Court had been using “mental gymnastics” to reverse convictions of white-collar criminals. The Court’s overall message, the professor said, was that the government should be careful about how aggressively it pursued cases that “carry heavy punishments to defendants who pose little threat to the public’s physical safety.”
The Court’s decisions illustrated what J. Kelly Strader, a professor at Southwestern Law School, called the “white collar paradox.” The conservative justices, who usually voted to uphold criminal convictions, frequently made an exception for white-collar criminal defendants. The liberals, on the other hand, were more likely to do the reverse—to vote in favor of ordinary criminal defendants and against white-collar defendants—or to vote in favor of all defendants. As a result of this unusual voting pattern, on a Court with five conservative justices, it was far easier for white-collar criminal defendants to win five votes to overturn their convictions than it was for other defendants. The Court had become, as Strader observed, “anti-defendant . . . except in white collar cases.”
The idea that the Court was engaged in a “white collar paradox” was supported by statistical evidence. In an article called “The Judicial Politics of White Collar Crime,” Strader analyzed the justices’ votes over a twenty-four-year period and produced hard numbers illustrating the phenomenon. For some justices, the evidence was particularly stark. Scalia voted for defendants in fewer than 7 percent of non-white-collar criminal cases and nearly 82 percent of white-collar cases. Rehnquist voted for the defendant in just over 8 percent of non-white-collar criminal cases and almost 62 percent of white-collar ones.
There are a variety of possible explanations for this white-collar paradox. Some moral psychologists argue that conservatives are more accepting of hierarchy than liberals are and more respectful toward those with more wealth, power, and social standing. They may, as a result, be more forgiving in their judgments of white-collar criminals and harsher toward other kinds of criminals. The conservative justices’ votes in white-collar cases likely also reflect their sympathy for defendants who resemble them. One study of sentencing in white-collar criminal cases, based on interviews with fifty-one federal judges, found that a substantial factor was the judges’ tendency to sympathize with defendants of their own social class. One judge told the investigators that it was difficult to avoid being biased when “people like you are standing in front of you.” The Court is a long way from the height of the Warren Court, when the five most liberal justices had all grown up in or close to poverty. For years now, the only justices who grew up in poverty have been Sotomayor and Thomas—and Thomas has been outspoken about putting the difficulties of the poor, including his own sister, behind him.
The Court’s criminal justice rulings, by driving mass incarceration, have promoted economic inequality. Imprisonment has a highly disproportionate impact on poor individuals, families, and communities. Prisons and jails are filled with people who were poor before they were locked up. The median annual income of incarcerated men aged twenty-seven to forty-two before their incarceration was just $19,650 in 2014, while for non-incarcerated men the median was $41,250. This statistic supports the view, as one commentator noted, “that mass incarceration in the United States is primarily a system of locking up lower class men.”
Prisons and jails are filled not only with people who were poor at the time of their arrest but also with people who grew up in poverty and near poverty. One study of the economics of imprisonment found a simple correlation: “the poorer your parents are, the more likely you are to be incarcerated.” In a sample of prisoners around the age of thirty, it reported that the bottom 5 percent of families produced about 15 percent of inmates, and the bottom 20 percent produced nearly half.
Mass incarceration also disproportionately affects people of color. In 2017, blacks were 12 percent of the U.S. adult population but 33 percent of the prison population. Hispanics were 16 percent of the adult population and 23 percent of inmates. Whites, by contrast, were 64 percent of adults but just 30 percent of prisoners. The impact of these racial disparities is felt across whole communities. While 6 percent of white men had family members in prison, according to one recent study, 44 percent of black women did.
In addition to reflecting the nation’s economic inequality, mass incarceration is a major contributor to it. While behind bars, inmates earn little or no money, and when they are released their wages and likelihood of full employment are significantly harmed. A Pew Charitable Trusts study of the finances of forty-five-year-old males found that the ones who were never incarcerated had an average annual wage of $39,100, while the men who had a prison record had an average wage of $23,500, or 40 percent less. Much of that gap is due, the study says, to the stigma of incarceration and other prison-related factors.
Families suffer economically from a family member’s incarceration. About 54 percent of inmates are parents of minor children, and their 2.7 million children represent 3.6 percent of the nation’s children. Many of these children grow up in poverty or near poverty as a result of a parent’s being behind bars. When a father is imprisoned, the family’s income is 22 percent lower on average than it was the year before he left for prison, a substantial decline from an already low level.
The impact of a parent’s imprisonment is not just financial. Children with incarcerated parents do worse in school than other children. They are more likely to misbehave, to have learning disabilities, and to drop out of school. About 23 percent of children with fathers who have been incarcerated are suspended or expelled, as compared with 4 percent of other children. The result is a form of intergenerational punishment. The Pew Charitable Trusts study concluded that incarceration makes the “prospect for upward mobility” among the children of inmates “significantly dimmer.”
The Court’s criminal law decisions are inextricably connected with economic inequality, driving many poor and working-class people further down economically—and, not infrequently, failing to punish higher-income individuals who commit white-collar crimes. There are also indications, however, that something larger is going on: that the Court is turning the criminal justice system into an increasingly efficient means of social control for the growing ranks of Americans who are at the bottom of the economic hierarchy. It might sound alarmist to say that the Court is creating the legal tools for operating a prison state, with a particular focus on people of color and the poor, but a member of the Court, herself a former prosecutor, has warned of just that.
The case was Utah v. Strieff, which appeared to be a dispute over a routine drug arrest. It began when the police received a tip about possible drug activity in a South Salt Lake City house. After a man walked out of the house, a narcotics detective followed him to a parking lot and asked him for identification. The detective checked the man’s name, Edward Strieff, against police records and found that he had an outstanding arrest warrant for a traffic violation. The detective arrested Strieff, searched him, and found methamphetamine.
Strieff moved to exclude the drug evidence from his trial. He argued that the police had no legal basis for stopping and questioning him and that the drugs they found as a result of the illegal stop should not be used against him. It was a straightforward argument based on two well-established Fourth Amendment doctrines: that to stop someone on the street the police must have a reasonable suspicion of criminal activity and that, if they seize evidence in an illegal search, that “fruit of the poisonous tree,” as a long-ago court colorfully expressed it, cannot be used at trial. Prosecutors used the drug evidence against Strieff at trial, and he was convicted. When he appealed, however, the Utah Supreme Court ruled that the evidence should not have been used, and it overturned the conviction.
On June 20, 2016, the Court reversed Utah’s highest court by a 5–3 vote and reinstated Strieff’s conviction. Thomas, writing for the majority, conceded that the stop had been illegal because the police did not have a reasonable suspicion that Strieff had done anything wrong. Thomas said, however, that the “fruit of the poisonous tree” doctrine did not apply, because when the detective checked his record and found an outstanding arrest warrant, it “attenuated the connection between the unlawful stop and the evidence seized from Strieff.”
The Strieff decision significantly changed the rules that apply to police stops on the street. The Court gave the police a reason to stop people who have not done anything wrong, or even anything that would reasonably raise suspicions of wrongdoing. As long as the police discovered an open warrant on the person they stopped, any evidence they found could be used against them. This was no small loophole: open warrants are common, especially among populations that have high levels of interaction with the police. Federal and state databases contain more than 7.8 million outstanding warrants, the great majority for minor offenses, and there are many more at the local level. In New York City, there were 1.4 million outstanding arrest warrants in 2016 for “quality of life” offenses, such as being in a park after closing time. In Ferguson, Missouri, according to a Department of Justice study in 2015, out of a population of twenty-one thousand, sixteen thousand people had outstanding warrants. In many cases, warrants are never served, so people who have an outstanding warrant do not even know it.
In dissent, Kagan argued that the ruling “practically invites” the police to stop people with no legal basis. Under the old rules, a police officer who wanted to stop someone improperly would likely decide it was not worth it, since any evidence uncovered could not be used at trial. That was “precisely the deterrence the exclusionary rule is meant to achieve,” Kagan said. The Court was now saying, however, that “so long as the target is one of the many millions of people in this country with an outstanding arrest warrant, anything the officer finds in a search is fair game for use in a criminal prosecution.” As a result, Kagan said, “the officer’s incentive to violate the Constitution . . . increases.”
Sotomayor, in her own dissent, went further, delivering a personal warning to the American people. In highly unusual form, she addressed the reader directly: “The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights,” Sotomayor wrote. “Do not be soothed,” she continued, “by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong.” As a result, anything the officer finds “by searching you” can be used in a criminal prosecution, a form of “misconduct,” Sotomayor said, that the Fourth Amendment should not allow.
Drawing on her own “professional experiences,” Sotomayor, who had been a Manhattan assistant district attorney before becoming a judge, underscored what she saw as the “severe consequences” of unlawful police stops. She warned that the police officer can “handcuff you and take you to jail for doing nothing more than speeding” or “jaywalking.” At jail, the officer can “fingerprint you, swab DNA from the inside of your mouth, and force you to ‘shower with a delousing agent’ while you ‘lift [your] tongue, hold out [your] arms, turn around, and lift [your] genitals.’”
Sotomayor said it was “no secret that people of color are disproportionate victims of this type of scrutiny,” but she underscored that the decision diminished the rights of all Americans. “This case tells everyone, white and black, guilty and innocent,” she said, that his or her “body is subject to invasion.” Sotomayor warned that the “countless people who are routinely targeted by police” were “the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere.” The system the Court was establishing, she said, “implies that you are . . . the subject of a carceral”—or prison—“state, just waiting to be catalogued.”
When Sotomayor mentioned the police’s ability to “swab DNA from the inside of your mouth,” she was referring to the Maryland v. King decision. The juxtaposition of Utah v. Strieff and Maryland v. King was sobering. In these cases, in a period of three years, two justices had sounded alarms that the Court was moving the nation toward two distinct totalitarian nightmares. Scalia, writing for himself and three of the liberal justices, suggested that the United States was in danger of becoming a panopticon, and Sotomayor cautioned that it was sliding toward becoming a prison state. What they agreed on was that the government was assuming—and the Court was allowing—greater control than ever over people’s bodies, and more power than ever to investigate, categorize, and incarcerate them.
These dual totalitarian visions are a logical extension of where the Court has taken the nation in the past fifty years. Economic inequality has risen at a furious pace, the middle class has contracted, and the status of the poor has become ever more precarious. This economic transformation makes firmer methods of social control, including more oppressive forms of policing, likely—if not inevitable. As the sociologists explain, “the more economically stratified a society becomes the more it becomes necessary for the dominant groups . . . to enforce through coercion the norms of conduct which guarantee their supremacy.”
The more autocratic nation the Court seems intent on creating is not the one the founders intended America to be. The police conduct that the Court countenanced in Utah v. Strieff “implies that you are not a citizen of a democracy,” Sotomayor warned in her dissent. A police force that can stop people on the street for no reason, search them, and check them against government databases sounds more totalitarian than democratic. A government that can force people who have not been convicted of any crime to turn over their DNA sounds more like a brave new world than a free nation. Scalia made that point caustically in his Maryland v. King dissent. “I doubt that the proud men who wrote the charter of our liberties,” he said, “would have been so eager to open their mouths for royal inspection.”