Suspects, Convicts See Rights Recede Recent Supreme Court Decisions Give Police Freer Rein. Now, a Case That May Reduce Death-Row Appeals
Robert Marquand, writer of The Christian Science Monitor, The Christian Science Monitor
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. …