In Hollywood and TV crime shows, the criminal justice system
often seems set up to coddle crooks - presenting elaborate legal
hurdles for police and prosecutors.
Yet such popular perceptions often now defy reality. For
years, a quiet pattern of US Supreme Court criminal law decisions
has given law-enforcement officials a stronger basis to act more
aggressively without fear of illegality.
The shift is evident in a death-row case the high court
agreed to hear last week. It deals with an area of law perhaps
least familiar to the public - habeas corpus, the time-honored
right of inmates to seek relief in federal court. But it also
profoundly affects the area that often touches the average citizen
- Fourth Amendment laws governing police in the search and seizure
of property. To many observers, how a nation negotiates this realm
of citizen's rights is symbolic of the overall civilizing tone and
temper of a society.
By themselves, the recent Supreme Court rulings deal with
technical issues that rarely make headlines: Is there a difference
between the search of a car and the search of a house? (There is.)
Can a house search for, say, illegal drugs, be extended by police
into a search for stolen property. (Usually, no.) Can police racial
bias in a street search of a car or a person be grounds for
excluding evidence in court? (Not any more.)
Moreover, criminal law changes are shaped both by new
rulings, and by the high court's refusal to take cases that would
uphold the more liberal Warren court of the 1960s.
For example, the high court has not in the past half-decade
upheld a single case allowing the exclusion of evidence in trial.
Criminal defenses often hinge on how well police have followed the
law in gathering evidence. "At a subterranean level, the foundation
of the Warren court logic is being washed away," says Akhil Amar, a
Yale University law professor. "We are moving from an emphasis on
warrants and exclusion of evidence in court to a new standard of
'reasonableness' that gives police more latitude to investigate.
The main idea is simple: Why should guilty people go free when the
evidence shows they did it?"
Civil libertarians shudder at changes that give civil
authorities more power without oversight. They also lament the loss
of voices on the court like the late William Brennan, who felt
civilization was judged by treatment of its outsiders, and who once
said that those in "the netherworld of the prison" should not be
accorded fewer basic rights than anyone else. None of the current
justices has a criminal defense background.
"The court has taken so many teeth out of the Fourth
Amendment that there aren't any teeth left," says David Cole, a law
expert at Georgetown University here. "There's really no one on the
court who feels sensitive to the claims of criminal defendants. …