The Supreme Court Term In Review, Part II: Criminal Justice

arrest(The following is the second in a multi-part series on the Supreme Court’s recently-concluded 2008-2009 Term)

This Term featured a handful of contentious criminal cases which showcased both the justices’ unwillingness to recognize the challenges presented by new technologies, and their complete willingness to disregard longstanding precedents.  Moveover, taken together, these cases may foreshadow a sweeping assault on the rights of the accused.

  • Turning Their Backs On The Twenty-First Century

As the Wonk Room recently reported, the Court’s 5-4 decision in District Attorney v. Osborne held that a potentially innocent man has no right to access DNA evidence that could exonerate him of a 1993 rape and kidnapping, even though he offered to pay for DNA testing himself–so it will cost the state literally nothing to let him do so.  According to Chief Justice Roberts’ opinion, the government can’t even be required to take cost-free measures to ensure that innocent people go free.

In Herring v. United States, another 5-to-4 decision, Roberts similarly disregarded the risks presented by poorly-maintained databases tracking arrest warrants and similar information. Since its 1961 decision in Mapp v. Ohio, the Court has understood that the Constitution’s safeguards against illegal searches and seizures mean nothing unless police suffer a consequence for their unlawful actions. Recognizing that virtually no jury would sanction a cop who unconstitutionally uncovers evidence of a crime, the Court endorsed the “exclusionary rule,” which requires illegally obtained evidence to be excluded from criminal trials. Herring, however, creates a new exception to this rule; when a police database falsely indicates that a person is the subject of an arrest warrant, the exclusionary rule does not apply to any evidence gained from an unconstitutional arrest of that person.

As Justice Ginsburg explains in dissent, failure to accurately maintain such databases could lead to countless innocent Americans being falsely arrested or detained. “Police today can access databases that include not only the updated National Crime Information Center (NCIC), but also terrorist watchlists, the Federal Government’s employee eligibility system, and various commercial databases.” In one of the most absurd recent examples of what can happen when those databases are poorly maintained, Senator Edward Kennedy (D-MA) was once detained in an airport because his name appeared on an anti-terrorist “no-fly” list.

  • Disregard for Precedent

The Court’s dismissive attitude towards the exclusionary rule is particularly disturbing in light of two decisions overruling precedents governing the rights of the accused. An unusually pro-defendant decision in Arizona v. Gant significantly rolled back a 28 year-old decision which held that police may always search the passenger component of a vehicle when they constitutionally arrest the vehicle’s occupant. And in Montejo v. Louisiana, the Court expressly overruled a 23 year-old precedent holding that police cannot initiate interrogation of a defendant after the defendant requests counsel at arraignment.

Viewed in light of the Court’s apparent willingness to abandon precedent, the new limitation on the exclusionary rule in Herring may portend significant future incursions on that rule. During Justice Samuel Alito’s first term on the Supreme Court, he cast the key fifth vote in favor of an opinion which ominously claimed that the exclusionary rule “has always been our last resort, not our first impulse.”  Herring is now the second case in four years to place substantial new limits on the exclusionary rule. Although it remains to be seen whether this pattern is merely a coincidence, these two cases could be the beginning of a much larger assault on the exclusionary rule. If they are, the most potent means of ensuring that police comply with the Constitution could cease to exist.