"One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted." - Oscar Wilde

Tuesday, July 5, 2016

In Dissents, Sonia Sotomayor Takes On the Criminal Justice System

Supreme Court Justice Sonia Sotomayor
Supreme Court Justice Sonia Sotomayor
The Supreme Court term had barely gotten underway in early November when Justice Sonia Sotomayor issued her first dissent. A police officer's "rogue conduct," she wrote, had left a man dead thanks to a '''shoot 1st, think later' approach to policing."

Justice Sotomayor would go on to write 8 dissents before the term ended last Monday. Read together, they are a remarkable body of work from an increasingly skeptical student of the criminal justice system, one who has concluded that it is clouded by arrogance and machismo and warped by bad faith and racism.

Only Justice Clarence Thomas wrote more dissents last term, but his agenda was different. Laconic on the bench, prolific on the page and varied in his interests, Justice Thomas is committed to understanding the Constitution as did the men who drafted and adopted it centuries ago.

Justice Sotomayor's concerns are more contemporary and more focused. Her dissents this term came mostly in criminal cases, and were informed as much by events in Ferguson, Mo., in 2014 as by those in Philadelphia in 1787.

She dissented again in January, from Justice Antonin Scalia's final majority opinion. Joined by no other member of the court, she said the majority in 3 death penalty cases might have been swayed by the baroque depravity of the crimes.

"The standard adage teaches that hard cases make bad law," she wrote. "I fear that these cases suggest a corollary: Shocking cases make too much law."

9 days after Justice Scalia died in February, on the day the 8 remaining members of the Supreme Court first returned to the bench, Justice Sotomayor laid the groundwork for what would turn out to be her most important dissent of the term.

The question in the case, Utah v. Strieff, No. 14-1373, was whether prosecutors could use evidence obtained by the police after illegal stops. A lawyer for the state told the justices that the Constitution allowed this if there had been an outstanding arrest warrant for the person the officer happened to stop.

There is logic to the position. The warrant existed before the illegal stop. It called for the suspect's arrest. Searching people in the process of arresting them is prudent and constitutional. The contraband the Utah officer found was real. There may be better ways to discourage unlawful stops than by suppressing evidence.

But, as Oliver Wendell Holmes Jr. wrote, "the life of the law has not been logic; it has been experience."

At the argument in February, Justice Sotomayor asked the first 6 questions, ripping into the state's lawyer with a blast of real-world experience rooted in the Black Lives Matter movement.

"What stops us," she asked, "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?"

A moment later, she answered her own question.

"If you have a town like Ferguson, where 80 % of the residents have 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.'"

Last month, Justice Thomas, writing for a 5-justice majority, accepted the state's logic.

Justice Sotomayor, a former prosecutor who grew up in a housing project in the Bronx, responded with an unusually direct dissent.

"Do not be soothed by the opinion's technical language," she wrote. "This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants - even if you are doing nothing wrong."

"If the officer discovers a warrant for a fine you forgot to pay," she continued, "courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant."

In many communities, she said, the tactics the court endorsed will allow the police to search people almost at will.

"It is no secret that people of color are disproportionate victims of this type of scrutiny," she wrote.

She cited precedents, naturally. But she also named major works on the African-American experience: W. E. B. Du Bois's "The Souls of Black Folk," James Baldwin's "The Fire Next Time," Michelle Alexander's "The New Jim Crow" and Ta-Nehisi Coates's "Between the World and Me."

You might be forgiven for thinking she was suggesting some summer reading for her fellow justices.

3 days later, Justice Sotomayor dissented again, this time from a ruling that said the police do not need warrants to conduct breath tests when they arrest people for drunken driving.

"I fear," she wrote, "that if the court continues down this road, the Fourth Amendment's warrant requirement will become nothing more than a suggestion."

Most of the justices, including some of its more liberal members, are inclined to give the police the benefit of the doubt. Justice Sotomayor is more apt to see encounters with the police through the eyes of the powerless, as tinged with humiliation, danger and worse.

"For generations," she wrote in the Utah case, "black and brown parents have given their children 'the talk' - instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger - all out of fear of how an officer with a gun will react to them."

Her 1st dissent of the term arose from an attempt to serve an arrest warrant for a misdemeanor probation violation. Disinclined to be arrested, the subject of the warrant, Israel Leija, instead led the police on a high-speed car chase on an Interstate highway north of Tulia, Tex.

The authorities set up a spike strip to try to disable Mr. Leija's car. But Chadrin L. Mullenix, a Texas state trooper who had earlier that day been told he was not "proactive enough," had a different plan. He positioned himself with a rifle on an overpass.

A superior told Mr. Mullenix to "stand by" and "see if the spikes work first." Mr. Mullenix instead fired 6 shots, killing Mr. Leija. The car then hit the spike strip and rolled over twice.

Mr. Leija's family sued, saying Mr. Mullenix had used excessive force, and an appeals court let the case proceed. The Supreme Court reversed that court's ruling, in an unsigned opinion.

Justice Sotomayor said she was struck by Mr. Mullenix's "glib comment" after he finished shooting Mr. Leija. "How's that for proactive?" Mr. Mullenix asked.

"The comment seems to me revealing of the culture this court's decision supports," she wrote, alone on the court.

Source: New York Times, July 4, 2016

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