For nearly four decades, vacancies on the Supreme Court and other federal courts have overwhelmingly been filled by former prosecutors, according to a report issued this month by The Justice Collaborative Institute.
As a result, federal courts have developed a body of policing jurisprudence that is distorted by a one-sided and often incorrect narrative of law enforcement – one that “[favors] police power over civil liberties,” write the report’s authors, Jennifer E. Laurin and Kyle C. Barry.
The remedy, they argue, is greater professional diversity in the federal court system, which could be achieved, in part, by appointing civil rights attorneys, legal aid lawyers, and public defenders to the bench.
“Criminal procedure jurisprudence has been imbued with a decidedly one-sided and often factually flawed narrative of policing: that policing is supremely dangerous; that police officers, under siege and sacrificing for the public good, cannot be second guessed; and that even when fundamental constitutional rights are at stake the police are owed great deference and should be trusted,” the authors write.
Expanding on this point in an interview with The Crime Report, report co-author Laurin, the Wright C. Morrow Professor at the University of Texas at Austin School of Law, argued that the assumptions used as “starting points for [criminal procedure] law…masquerade as empirical facts when they are not.”
Laurin called these assumptions “untested” and “inaccurate” and explained that they nevertheless form the “foundation of the law that regulates the police.”
The report cited three examples of how the beliefs of federal judges have biased constitutional law and expanded police power.
First, in the case of New York v. Quarles (1984), the Supreme Court ruled that police officers can question someone regarding an ongoing threat to public safety and that his/her statements can be used as evidence in court – even if that individual was not read his/her Miranda Rights.
In the majority opinion, Chief Justice William H. Rehnquist reasoned that, “police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence.”
Second, the Supreme Court’s jurisprudence on the Fourth Amendment has reflected an “untested, unsupported, and inaccurate or incomplete” narrative of policing, according to the report.
The police are, so the narrative goes, engaged in dangerous work, highly and uniquely skilled, capable of determining when even legal conduct is a sign of danger, and respectful of people’s civil rights and liberties.
Inspired by this narrative, Supreme Court Justices have instructed lower courts to let the “experiences and specialized training of the police” govern when it comes to stopping, frisking, and searching individuals.
The report’s authors argue, however, that rulings like this give police officers license to conduct random searches without proper cause and, by extension, to search people based on their race and place of residence.
Furthermore, on police use of force, the Supreme Court has said that “police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving.”
However, as one author explained, police typically use force aggressively, not defensively. This finding, according to the report, suggests that the high court’s image of police making rapid judgments in tense situations does not play out most of the time.
Qualified immunity shields police officers from civil liability unless the plaintiff can point to a prior case proving that the officer’s conduct was clearly illegal.
Applying this doctrine, the Supreme Court said that police officers might find it difficult to determine whether and how the relevant law applies to the situation they are confronted with.
Therefore, according to the Justices, lower courts should give deference to law enforcement officials when they are alleged to have used excessive force.
Laurin told The Crime Report that the New York v. Quarles ruling, the Supreme Court’s Fourth Amendment jurisprudence, and the qualified immunity doctrine are the result of a federal judiciary that is “overwhelmingly comprised of individuals who have never in their lived experience or professional experience had reason to question the conduct of the police.”
Moreover, she added, “they have spent the majority of their careers defending the police” rather than contesting them.
The evidence laid out in the report serves to illustrate Laurin’s points.
There has not been a Supreme Court Justice with a strong background in criminal defense since Thurgood Marshall retired from the bench in 1991.
In the past 40 years, the number of Supreme Court Justices with prior experience in criminal prosecution has increased threefold.
And, in the lower federal courts, there are four times as many former prosecutors as there are former public defenders.
To rectify this, the report calls for appointments that reflect the diversity of players in the justice system.
This would mean adding to the bench public defenders, civil rights attorneys, and legal aid lawyers – that is, “legal professionals who have made a career of challenging rather than defending the police perspective.”
Not only is this a viable solution, according to the report, but it is also supported by the public.
According to recent data, nearly 60 percent of voters – including about 49 percent of Republicans – support “appointing judges who have experience as criminal defense attorneys and civil rights lawyers, not just former prosecutors.”
When asked if diversifying the federal judiciary was possible, Laurin told The Crime Report, “During the Obama administration, there was more selection of individuals with criminal defense experience in their backgrounds as federal judicial nominees.”
“The Biden administration could do even more along those lines.”
Jennifer E. Laurin is a professor at the University of Texas at Austin School of Law, and Kyle C. Barry is the director of research at The Justice Collaborative Institute.
The full report can be accessed here.
See also: “New Jersey AG Unveils ‘Paradigm Shift’ Barring Police Use of Force,” by TCR Staff, The Crime Report, December 22, 2020.
Michael Gelb is a TCR News Intern. He welcomes comments from readers.