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Without Antonin Scalia on the Bench, the Supreme Court's Liberals Spoke Up and Won Out

By Mark Joseph Stern, Slate

25 February 16

hat happens when a police officer breaks the law? The cynical answer is, usually nothing. But since at least 1963, the legal answer has been very specific: Any evidence an officer collects by breaking the law must be excluded from the courtroom. This “fruit of the poisonous tree” doctrine is a component of the beloved, despised exclusionary rule, which typically bars evidence gathered in violation of the Fourth Amendment. Although conservative Supreme Court justices have chipped away at the exclusionary rule for decades, it remains a cornerstone of search-and-seizure jurisprudence. Law enforcement officers don’t get to enforce the law by breaking it.

Pondering how far the fruit has to be from the tree to cease being poisonous can be an amusing philosophical exercise. But, as Justice Sonia Sotomayor demonstrated during oral arguments in Utah v. Strieff on Monday, in impoverished minority communities like Ferguson, Missouri, the continued vitality of the exclusionary rule is no mere academic matter.

On first blush, you might expect Strieff to be an easy case. Detective Douglas Fackrell violated the Fourth Amendment when he stopped Edward Strieff; Fackrell, Strieff, and Utah all agree on that point. The detective had heard an anonymous tip that a house in South Salt Lake might be involved in “narcotics activity,” and over the course of sporadic surveillance, he noticed visitors entering and exiting quickly. When he saw Strieff leave the house on Dec. 21, 2006, he detained him and demanded identification. Fackrell ran a warrants check and discovered that Strieff had an outstanding warrant for a minor traffic violation. So he arrested and searched him, discovering methamphetamine in Strieff’s pockets.

One problem: The Fourth Amendment prohibits unreasonable searches and seizures. Fackrell’s search of Strieff’s pockets was probably legal. (To ensure their own safety, officers can generally search arrestees.) But Fackrell’s initial detainment of Strieff—in constitutional lingo, a “seizure of a person”—was not. At a minimum, officers must have individualized reasonable suspicion to stop and question somebody, even briefly. All parties agree that Fackrell did not have reasonable suspicion to detain Strieff after merely seeing him leave a house that might contain drugs. The seizure led to the search; the search led to the drug discovery. Under the exclusionary rule, then Strieff gets to suppress the evidence and walk free. Right?

Not quite, because the Supreme Court has created an “attenuation” exception to the rule. Under attenuation doctrine, evidence discovered through police misconduct is still admissible if the link between the police illegality and the evidence itself has been sufficiently weakened, usually by time or interceding events. But the court has failed to explain how much time must pass, or which events must occur, before illegally obtained evidence becomes legal once again. In 1975, the justices focused on the “temporal proximity” between the police illegality and the discovery of the evidence (how much proximity?); the presence of “intervening circumstances” (which ones?); and the “flagrancy” of the official misconduct (a curveball with no relation to the other two factors). More recently, the court has switched tacks and decided that attenuation kicks in—and evidence becomes admissible—if suppressing the evidence would fail to serve any deterrent purpose.

Some courts have interpreted these factors quite generously—including the Utah Supreme Court, which sided with Strieff and suppressed the evidence against him. When the U.S. Supreme Court agreed to review that decision, court-watchers assumed that the conservative bloc would continue its campaign against the exclusionary rule by broadening the attenuation doctrine. It could do so here by ruling that the discovery of evidence was sufficiently attenuated from the illegal seizure because of the intervening discovery of an arrest warrant. But that was back when Justice Antonin Scalia, noted exclusionary rule skeptic, was still on the bench. (Scalia once asked, “Why don’t we just abolish the exclusionary rule?” It wasn’t clear that he was kidding.) Following his death last Saturday, the justices appear to be deadlocked, 4-to-4, on Strieff’s case and maybe the exclusionary rule itself.

Arguments begin with a bang, as Tyler Green, representing Utah, attempts to persuade the court that there was a clear attenuating circumstance here: Fackrell discovered an arrest warrant for Strieff, thereby breaking the chain of causation between his illegal conduct and his discovery of the evidence. Green wants the court to adopt a general rule that once an officer has discovered an outstanding arrest warrant, the “taint” of his initial illegality dissipates. Sotomayor jumps in.

“If we announce your rule,” she asks Green, “what stops us from becoming a police state and just having the police stand on the corner down here and stop every person, ask them for identification, put it through—and if a warrant comes up, searching them?”

Green answers weakly that “an officer can never count on finding a warrant, so there is no incentive to make that stop.” Sotomayor hits right back.

“If you have a town like Ferguson,” the justice says, referring to the Missouri city with a documented history of predatory policing, “where 80 percent of the residents have five minor traffic warrants out, there may be a very good incentive for just standing on the street corner in Ferguson and asking every citizen: Give me your ID. Let me see your name. And let me hope, because I have an 80 percent chance that you’re going to have a warrant.”

Everyone in the courtroom, including Green, looks a little stunned that Sotomayor went there. (Green, at least, should’ve seen it coming: Strieff’s brief heavily cites the Department of Justice’s investigation of the Ferguson Police Department.) Justice Elena Kagan leans forward with a mischievous grin to hammer home Sotomayor’s point.

“If you’re policing a community where there is some significant percentage of people who have arrest warrants out on them,” she tells Green, “it really does increase your incentive to make that stop on the chance that there will be a warrant that will allow you to search and admit whatever evidence you gained in that search.”

Kagan and Sotomayor make a compelling argument: If officers can justify an illegal seizure whenever the individual they detain turns out to have an arrest warrant, then there’s little stopping them from detaining whomever they want. Deterring police from engaging in this kind of unlawful activity is a fundamental justification for the exclusionary rule itself. So shouldn’t the court rule that an outstanding arrest warrant can’t justify an illegal seizure?

Predictably, Justice Samuel Alito hops in to defend Utah, pointing out that most communities aren’t like Ferguson, and most people don’t have outstanding arrest warrants. Kagan pushes back, noting that the police are more likely to stop individuals in high-crime neighborhoods. When Joan Watt approaches the bench to defend Strieff, it seems as though she is inserting herself into a late-night dorm-room debate between Kagan, Sotomayor, and Alito. Watt reiterates the point that Utah’s proposed rule would encourage officers to detain anybody, even without an iota of suspicion.

“There is a downside,” Alito insists. “If the officer makes an illegal stop, the officer exposes himself or herself to all sorts of consequences!” You can sense Sotomayor struggling not to roll her eyes. Police rarely face consequences when they shoot innocent civilians. Does Alito really think they’ll get in big trouble for detaining somebody unlawfully for a few minutes?

Chief Justice John Roberts wades in with a nettled grimace to point out that most Americans don’t have arrest warrants, so the police don’t have an incentive to go on what Watt calls a “fishing expedition.” (Roberts seems increasingly irritated throughout the morning. Perhaps it finally dawned on him that his 5-4 majority against the exclusionary rule has gone up in smoke.) Watt, projecting an aura of stoic patience, calmly explains that officers “can still target communities that may have a greater incidence of warrants.” (She means minority communities.) Roberts has no good response.

By this point, the battle lines are clear. The court’s liberals think that Utah’s rule would give officers a new reason to stop anybody and run a warrant check: If a warrant turns up, the illegality of the initial stop will be dissolved, and the officer can search his arrestee. Thus, to deter this behavior, the court should refuse to extend the attenuation doctrine. The conservatives, on the other hand, doubt that officers target communities where people have lots of arrest warrants, and doubt that applying the exclusionary rule here would deter police misconduct.

This dispute leads to the most searing and uncomfortable moment of the morning. Alito attempts to ridicule Watt’s deterrence arguments by asking, “Do you think the judges in traffic courts are going to start issuing lots of warrants because they want to provide a basis for randomly stopping people?”

Watt starts to answer, but Sotomayor cuts in with a brutal joust.

“I’m very surprised,” she says acidly, “that Justice Alito doesn’t know that most of these warrants are automatic. If you don’t pay your fine within a certain amount of days, they’re issued virtually automatically.”

It is one of those knockout moments so ruthless that you aren’t sure whether to cringe or cheer. Sotomayor is essentially calling out Alito’s privilege—why would he know about corrupt, scammy, racist policing?—and Alito doesn’t even attempt to respond. Instead, he wears an embarrassed smirk throughout the remainder of arguments, appearing appropriately shamed.

By the time the justices file off the bench around noon, it seems probable the court will indeed divide 4-to-4, liberals against conservatives, on Strieff. That will leave the Utah Supreme Court’s pro-exclusion ruling in place, but fail to establish any nationwide rule. It would also represent one small conservative revolution thwarted.

When Scalia died, court-watchers noted that his absence would forestall impending victories against unions, affirmative action, and voting rights. Less commented upon was the fact that the justice’s death also granted a reprieve to the Warren Court’s biggest contributions to defendants’ rights. The era of conservatives merrily hacking away at Fourth Amendment safeguards appears to be over. And Sotomayor’s aggressiveness on Monday suggests that, in the long run, she believes her side has the winning hand.

Researchers Have Discovered a New and Surprising Racial Bias in the Criminal Justice System

By Jeff Guo, The Washington Post

25 February 16

or a nation as diverse as the United States, the judiciary is quite male and white. In theory, this shouldn’t matter. Judges are supposed to be impartial — as boring as “umpires,” in the famous words of Chief Justice John Roberts.

In practice, of course, it's much messier. People can’t help but see the world through the lens of their own experiences. A recent report by two sociologists showed that white federal judges are about four times more likely to dismiss race discrimination cases outright. Another analysis found that they are half as likely as black federal judges to rule in favor of people alleging racial harassment in the workplace. 

“Since African American judges have likely experienced discrimination themselves, they can recognize more complex and subtle forms of racial harassment,” the authors argue.

But in criminal cases, the evidence has been blurrier. Just because black judges might understand more about the black experience doesn’t mean that they’re more sympathetic toward black criminals. In fact, a surprising new study shows that judges in Louisiana — white or black — actually give longer sentences to juvenile offenders of their own race.

“It was a little bit shocking at first,” says Briggs Depew, an assistant professor at LSU and co-author on the paper, which was released as a draft by the National Bureau of Economic Research on Monday.

Depew and his colleagues, Ozkan Eren and Naci Mocan, found that when a black judge rules on a black defendant, or when a white judge rules on a white defendant, the sentences are about 14 percent longer. Also, the judges are about 5 percent more likely to recommend jail time instead of probation for defendants of the same race.

The study hinges on the fact that these cases are assigned randomly. There’s no telling whether a black judge or a white judge will handle someone’s hearing. The researchers also controlled for the age and gender of the defendants, the place where the crime was committed, and the average tendencies of each judge. They focused on cases in which the defendants already plead guilty, so the judges were only in charge of deciding the terms of the punishment. 

In other words, there are few alternative explanations for this pattern of racial bias. Judges in Louisiana, it seems, are systematically treating similar defendants differently. And, unexpectedly, they are more lenient on defendants who are of a different race.

The researchers have a few theories for why this might be.

First, it could have something to do with the race of the victims. There wasn’t any information about that in the Louisiana data, but the researchers note that national statistics show white people are more likely to be victims of crimes perpetrated by white people. Correspondingly, black people are more likely to be victims of black crimes. Judges may be more sympathetic toward victims of their own race, and may mete out more severe punishments to those who perpetrate such crimes, regardless if they are white or black.

The researchers have some preliminary evidence supporting this idea. When they focused on victimless crimes, they found that the judges seemed to be a lot more even-handed. But the same-race bias was large for crimes with victims, implying that something here was important. (There wasn’t enough data for this difference to be statistically significant, but it’s suggestive.)

Second, this could be tough love. Since judges may more knowledgeable about people of the same race, they might feel more comfortable assigning longer sentences. Out of unfamiliarity, a white judge might prefer to err on the lenient side when dealing with black defendants. A black judge could have more insight into whether a black defendant could benefit from more jail or probation time. 

Third, judges could be worried about seeming prejudiced. White judges might go easy on black defendants to ward off accusations of racism, and black judges might treat black defendants more harshly to avoid the appearance of racial favoritism. In laboratory tests, researchers have shown that white trial judges, like most white Americans, hold implicit biases against black people — but also that judges can overcome those prejudices with conscious effort. The racial patterns in Louisiana, might be the result of overcompensation.

A study like this tends to raise more questions than it answers. The important message is that diversity matters. As my colleague Max Ehrenfreund noted last week, President Obama's nominations to the federal judiciary have been remarkably non-male and non-white. Obama explained to The New Yorker in 2014 that he wanted minorities "to be able to see folks in robes that look like them." But the consequences of a multiracial, multicultural bench will be more than just symbolic.

As America's judges start to look like, well, the rest of America, the law will bend in interesting ways. A striking example is Supreme Court justice Sonia Sotomayor, a Latina who grew up in a Bronx housing project. Just on Monday, she scolded fellow justice Samuel Alito for being ignorant, apparently, of how arrest warrants can tangle up the lives of the poor.

“Personal experiences affect the facts that judges choose to see,” Sotomayor once said in a 2001 speech (the same in which she made her "wise Latina" comment). "My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar."