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Cumulative Decisions That May Bury the Individual : High court rulings on criminal and police rights erode basic protections

May 12, 1991

March and April, 1991, may someday be regarded as a historic moment when the Fourth, Fifth and Sixth Amendments ceased to provide the protection they long have to individuals accused of a crime.

This term the new Reagan-Bush majority on the U.S. Supreme Court handed down several decisions that begin to dismantle the court's own traditions. Individually, these rulings are frightening and intellectually sloppy. Collectively, however, the court has tipped the historic constitutional balance between the state's interest in determining the guilt of defendants and the right of each defendant to a fair trial--and tipped it toward the state.

Consider what this conservative court has done so far in the name of "judicial restraint"--that rallying cry of political conservatives.

THE RULINGS: In late March, the court abandoned its "axiomatic proposition" that a criminal defendant is deprived of due process if his conviction is in any part founded on an involuntary confession. Chief Justice William H. Rehnquist stated that the court will now view some coerced confessions as "harmless error," not requiring an automatic reversal. Courts can declare forced confessions to be "harmless error" if they determine that other evidence introduced at trial, but obtained "independently" of the confession, would have sustained a guilty verdict, a difficult proposition indeed to prove.

Then the court slammed the door on Death Row inmates by artificially limiting the number of federal habeas corpus petitions they can bring. Henceforth, petitioners can bring more than one federal writ of habeas corpus only when they "can show that a fundamental miscarriage of justice would result from a failure to entertain the claim." In other words, when the petitioner can--in a way other than through the court system--prove his or her innocence, a standard that strains credulity.

Next, the court redefined the meaning of "search and seizure," bolstering the power of police to chase people, even when officers have no "reasonable suspicion" to believe a crime was committed.

And two weeks ago, the court declared it will no longer routinely accept all the appeals filed by those who are too poor to pay for an attorney. Instead, the court will now reject without consideration paupers' petitions that are "frivolous or malicious." However, such a determination implies a two-step process, possibly more time-consuming than its current one-step consideration of such petitions on their merits alone.

THE RATIONALES: In part the court coyly justifies its decisions as an effort to improve court efficiency. It argues that "perpetual disrespect for the finality of convictions disparages the entire criminal justice system" and that "the capacity of the system to resolve primary disputes" is threatened.

Listen closely to the language and one can almost hear the desperate cries for help of some court administrators and judges who feel themselves sinking into a quicksand of burgeoning caseloads, revolving-door justice and soaring crime rates. But while some federal and state court dockets are seriously delayed, others are not. Moreover, recent RAND Corp. research has found that, contrary to popular perception, the overwhelming majority of criminal defendants charged with certain serious crimes are convicted and imprisoned.

The causes of crime--and delayed criminal dockets--are complex; they arguably spring as much from economic hopelessness and despair as from prima facie "disrespect for the law." Moreover the deterrent effect of "swift and sure" punishment on the actions of would-be criminals has not been conclusively established.

These decisions are more than expressions of the Supreme Court's impatience with the substantive claims of criminal defendants. The cumulative weight of these technical changes alter the environment of expectations on the street, in the jailhouse, and in the courtroom. It signals that the court now regards establishment of factual guilt to be the primary objective of our criminal justice system. But the Founding Fathers did not write the Fourth and Fifth Amendments protecting the rights of suspects and defendants to make the work of police and prosecutors easier. They feared that police officers would sometimes act improperly and that prosecutors might withhold or tamper with important evidence; and they foresaw many criminal defendants getting inexperienced or inept representation, or no representation at all.

The Rehnquist Court's preoccupation with "abuses" of the criminal justice process--and the understandable but disingenuous argument on behalf of efficiency--serves to undermine the rights of all Americans. More worrisome still, other potentially explosive criminal decisions are yet to come this term.

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