The Institutional Stability of the Judiciary in the Aftermath of Terrorism

By Shortell, Christopher; Smith, Charles Anthony | Judicature, January/February 2005 | Go to article overview

The Institutional Stability of the Judiciary in the Aftermath of Terrorism


Shortell, Christopher, Smith, Charles Anthony, Judicature


Virtually every institution associated with law enforcement and the administration of justice in the United States immediately responded to the terrorist actions on September 11, 2001. The nation became a "no-fly" zone as airports were shut down from coast to coast. Both legally present and undocumented foreign workers and students were subjected to heightened scrutiny by federal law enforcement and in many cases were detained incommunicado and without charge. Congress quickly passed the USA Patriot Act, which was signed into law by late October.

The reaction to the attacks on the rights and liberties of aliens-even those with no connection to terrorists-was largely transparent and certainly well documented by the press. Yet how far did the reach of these changes extend: Did ordinary citizens enmeshed in the criminal justice system also face a change in the scope of their civil rights and liberties in criminal cases that were substantively unrelated to the threat of terrorism? Did concerns over the war on terror provide cover for reducing civil liberties protections in other areas of the law?

These are pressing questions in light of the reliance on protection from terrorism as justification for policy in areas only tangentially related to concerns of national security (for example, the draft language of the so-called Patriot Act II would limit judges' sentencing discretion in drug cases and increase penalties for selling drugs to those under age 21). They present an empirical question that has broad implications for our understanding of the institutional stability of courts and the law in the United States: how did the U.S. judiciary respond to the terrorist attacks of 9/11? Conceptually, three clear judicial responses were possible: the judiciary could have contracted civil liberties across the board out of an abundance of vigilance, it could have expanded civil liberties out of an abundance of caution, or it could have refrained from altering its behavior in any fashion.1

In our study, we analyzed whether civil rights and liberties were contracted through the rate and outcome of judicial rulings on specific evidentiary motions in non-immigration criminal cases initiated in the U.S. District Court for the Southern District of California in 2001, for a period of approximately 90 days both before and after the attacks. As surrogates for the contraction of civil rights and liberties, we analyzed the district court's rulings on motions regarding admissibilily of evidence, violations of Fifth Amendment due process rights, and the appropriateness of jury instructions regarding evidentiary issues. Specifically, we considered whether each ruling was favorable to the defense or the prosecution, regardless of which side brought the motion.

If, as a result of the attacks, defendants began to receive fewer civil liberties protections, they would have prevailed less frequently on filed exclusionary motions or the defense bar simply would have filed fewer motions-whether due to judicial restriction of rights, defense bar fear of aggressive representation by the prosecution, actual increased aggression by the prosecution, or some combination of these factors. If, on the other hand, defendants had benefited from an expansion of civil liberties protections, they would have tiled exclusionary motions more frequently or prevailed more frequently on filed motions. If the judiciary remained stable, we would have found no signiRcant change in either the rate of filed motions or defense success on those motions. This outcome would suggest a level of independence by the judiciary in the face of external shocks to the system.

We found no significant difference in either the rate of motions filed or the rate defendants prevailed among rulings by 24 different judges over the relevant seven-month time period. Indeed, in both dimensions-the rate of filings and the rate of prevailing defense-the numbers were almost identical for the period before and after the attack. …

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