The prominence of these decisions, however, is misleading. They were both decided by the Supreme Court under Chief Justice Earl Warren, at a time when the Court was solidly liberal and strongly committed to racial and economic equality. At virtually every juncture since Gideon and Miranda, the Supreme Court has undercut the principle of equality reflected in those decisions, and has itself “take[n] advantage of indigence in the administration of justice.” Today, those decisions stand out as anomalies. Gideon is a symbol of equality unrealized in practice; poor defendants are nominally entitled to the assistance of counsel at trial, but the Supreme Court has failed to demand that the assistance be meaningful. Lawyers who have slept through testimony or appeared in court drunk have nonetheless been deemed to have provided their indigent clients “effective assistance of counsel.”25 And today’s Court has so diluted Miranda that the decision has had little effect on
actual police interrogation practices
The exploitation of inequality in criminal justice is driven by the need to balance two fundamental and competing interests: the protection of constitutional rights, and the protection of law-abiding citizens from crime. Virtually all constitutional protections in criminal justice have a cost: they make the identification and prosecution of suspected criminals more difficult. Without a constitutional requirement that police have probable cause and a warrant before they conduct searches, for example, police officers would be far more effective in rooting out and stopping crime. Without jury trials, criminal justice administration would be much more efficient. But if police could enter our homes whenever they pleased, we would live in a police state, with no meaningful privacy protection. And absent jury trials, the community would have little check on overzealous prosecutors. Much of the public and academic. debate about criminal justice focuses on where we should draw the line between law enforcement interests and constitutional protections. Liberals tend to argue for more rights-protective rules, while conservatives tend to advocate rules that give law enforcement more leeway. Both sides agree, at least in principle, that the line should be drawn in the same place for everyone.
In fact, however, we have repeatedly mediated the tension not by picking one point on the continuum, but in effect by picking two points—one for the more privileged and educated, the other for the poor and less educated. For example, the Supreme Court has ruled that the Fourth Amendment bars police from searching luggage, purses, or wallets without a warrant that is based on probable cause to believe evidence of crime will be found.26 But at the same time, the Court permits police officers to approach any citizen—without any basis for suspicion—and request “consent” to search.27 The officer need not inform the suspect that he has a right to say so. This tactic, not surprisingly, is popular among the police, and is disproportionately targeted at young black men, who are less likely to assert their right to say no. In this way, the privacy of the privileged is guaranteed, but the
police still get their evidence, and society does not have to pay the cost in increased crime of extending to everyone the right to privacy that the privileged enjoy. This pattern is repeated throughout the criminal justice system: the Court affirms a constitutional right, but in a manner that effectively protects the right only for the privileged few, while as a practical matter denying the right to those who are less privileged. By exploiting society’s “background” inequality, the Court sidesteps the difficult question of how much constitutional protection we could afford if we were willing to ensure that it was enjoyed equally by all people.
0 comments:
Post a Comment