When Criminal Rights Go Wrong; Forget Liberal. Forget Conservative. Think Common Sense

By Savoy, Paul | The Washington Monthly, December 1989 | Go to article overview

When Criminal Rights Go Wrong; Forget Liberal. Forget Conservative. Think Common Sense


Savoy, Paul, The Washington Monthly


Forget liberal. Forget conservative. Think common sense.

It has become one of those commonplaces of bicentennial speeches and Fourth of July orations to cite reports by pollsters that if the Bill of Rights were put to a vote today, a sur- prisingly large number of citizens would fail to ratify some of our most fundamental freedoms. A 1989 survey conducted by The National Law Journal showed that Americans are so fearful about the drug-driven crime epidemic that more than half of those polled who expressed an opinion favored cutting back the constitutional rights of criminal defendants and overruling Supreme Court decisions that limit police conduct in gathering evidence.

When Americans reject the ideals of one of our founding documents, we are urged to believe, as Garry Wills observed on the occasion of the 200th anniversary of the Declaration of Independence, that something has gone wrong with America; that somehow, in failing to subscribe to the Supreme Court's interpretation of certain 18th-century ideals, America "has ceased in part to be itself." What we have failed to consider is the possibility that what may be misguided are the orthodox teachings of the American legal establishment, not the majority opinions of the American people.

The approach of the 200th anniversary of the ratification of the Bill of Rights provides a timely opportunity for the legal profession to consider an unsettling idea: There may be considerable validity to the profound, though poorly articulated, intuition of the public at large that the procedural guarantees of the Constitution are not to be used to undermine a defendant's responsibility for his criminal acts. Because readers will be (and should be) extremely skeptical of the claim that much of what law schools have been teaching and courts have been espousing since the advent of the Warren Court era may be fundamentally flawed, a heavy burden rests with those who would challenge the prevailing orthodoxy. Taking rights too seriously?

Having provided the framework for what was surely the most ambitious and idealistic effort in the history of the Supreme Court to bring the Constitution to bear upon flagrant abuses in the administration of criminal justice, liberals have become willing to accept the assumptions and principles of that 1960s revolution as dogma beyond accountability to serious moral or intellectual inquiry. Deeper and more mature reflection on the history and purpose of the procedural guarantees of the Constitution-including most prominently the Fourth Amendment prohibition of unreasonable searches and seizures and the Fifth Amendment privilege against compulsory self-incrimination-will show that these fundamental rights were not intended, and should not be construed, to protect the guilty.

In 1957, Edgar Smith was convicted of murdering a 15-year-old girl and sentenced to die in the electric chair. High school sophomore Vickie Zielinski had disappeared on her way home from visiting a friend, and her battered body was found the next day in a sand pit on the outskirts of the small New Jersey town where she lived. Her skull had been crushed with a 44-pound boulder, leaving a gaping hole in her head and her brains scattered along the bank.

In 1969, the Supreme Court ordered a hearing to determine if incriminating statements Smith made to police had been obtained in violation of his constitutional rights. Although Smith acknowledged that he had not been mistreated by the police officer who conducted the interrogation, and three psychiatrists testified that the statements were "the result of his free will and rational choice," a federal court in New Jersey ruled the statements were inadmissible because they were obtained under "coercive" circumstances: Smith had not been advised of his right to remain silent or his right to counsel, and his interrogation had extended over a period of more than 10 hours. After 14 years on Death Row, Smith, who continued to assert his innocence, was released from prison because, without his statements, there was insufficient evidence to retry him for first-degree murder.

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