Here’s the problem: You’d be hard-pressed to assemble nine lawyers in America who as a collective are further removed from the realities of the facts of these cases than the nine justices of the Supreme Court. The road from law school to the Supreme Court today starts at Harvard or Yale (all nine of the current justices attended Harvard or Yale for law school, although Ruth Bader Ginsberg later transferred to Columbia). From there the next stop is a clerkship or two with a federal judge, followed by a post in academia, the Justice Department, or a white shoe law firm. Rise quickly and get noticed, and you might eventually earn an appointment to the federal judiciary. From there you’ll want to write strong opinions (but not too strong) that will attract the eye of court watchers, influential ideological organizations like the Federalist Society and the American Constitution Society, and the legal media commentators who draw up those Supreme Court short lists.
What’s missing from that career trajectory is any real experience in criminal law. Of our current Supreme Court lineup, only two justices — Samuel Alito and Sonia Sotomayor — have significant experience with criminal law. Both are former prosecutors. Alito spent time as an assistant U.S. attorney and a U.S. attorney. But even that misses a huge percentage of the criminal justice system: The overwhelming percentage of criminal cases in America are at the state and local level. Only Sotomayor has real experience with a local, day-to-day criminal justice system, and even that experience isn’t all that overwhelming: She spent four and a half years as an assistant district attorney in Manhattan, thirty years ago.
Each term, the Supreme Court decides a dozen or so cases in which the justices attempt to balance the public’s interest in keeping order (which manifests in the powers we give to police and prosecutors) with our constitutional rights. Yet for the vast majority of Supreme Court justices now and in recent history, you could quite literally say that the criminal justice system is merely academic. Some justices may have seen a criminal case or two while in the upper echelons of the Justice Department, or taken a pro bono post-conviction case for an indigent client here or there. But real experience is almost nonexistent. And to the extent that a justice has had real hands-on experience, it’s almost always for the prosecution. We haven’t had a justice with significant criminal defense experience since Thurgood Marshall retired in 1992. Given the intense politicization of the nominating process, and that we’re increasingly seeing the practice of criminal defense used as a political cudgel, it seems unlikely we’ll see another example any time soon. (Can you imagine the uproar if a president were to nominate a prominent attorney like Bryan Stevenson who has made his name defending prisoners on death row, or an ACLU lawyer who specializes in criminal law?)
The point here isn’t that we should stock the court with votes to broaden the rights of criminal suspects, or to limit the powers of police and prosecutors. But in some of the most important and profound issues we face in a free society — issues like what limits should be put on the government’s power to use force, to inflict violence, to detain, to imprison, and to kill — the Supreme Court lacks any firsthand perspective on how those issues arise and are handled day to day on the streets, in the jails and prisons, and in prosecutor offices.
One of the cases this term deals with how long the police can hold a motorist after a traffic stop in order to bring in a drug dog for a sniff.* The high court has already badly botched the drug dog issue, and its mistakes are directly related to the lack of criminal defense experience on the bench. In U.S. v. Place, the court ruled that a sniff from a drug dog is not a “search” for Fourth Amendment purposes. In the 2005 case Illinois v. Caballes, the court extended that doctrine to automobiles. In both cases, the majority opinion referred to the finely-tuned, seemingly infallible nose of a trained drug dog. The problem, as an criminal defense attorney will tell you, is that drug dogs aren’t infallible. Studies and field records show they can have widely varying rates of false alerts, in some cases topping 50 percent. It isn’t that there’s anything wrong with the dog’s sense of smell, it’s that we have bred in dogs the ability to read our body language and an overwhelming desire to please us. Unless those traits are factored into a dog’s training, the dog will often alert merely to confirm the hunches of its handler. (My favorite example of this is the claim that dogs can be trained to sniff out counterfeit DVDs.) And of course, the entire point of the Fourth Amendment is to protect us from invasive searches based on little more than the hunch of a government official.
In 2012, the court heard a Florida case that delved into some of these issues. Specifically, the court was reviewing a set of criteria the Florida Supreme Court had established for judges to use in determining whether a drug dog’s alert could be used as evidence. There was a notable exchange between Justice Antonin Scalia and one of the defense attorneys.
JUSTICE SCALIA: What — what — what are the — what are the incentives here? Why would a police department want to use an incompetent dog? Is that any more likely than that a medical school would want to certify an incompetent doctor? What — what incentive is there for a police department?MR. GIFFORD: The incentive is to acquire probable cause to search when it wouldn’t otherwise — otherwise be available.JUSTICE SCALIA: And that’s a good thing?MR. GIFFORD: Is that a good thing?JUSTICE SCALIA: I mean, you acquire probable cause, you go in and there’s nothing there. You’ve wasted the time of your police officers, you’ve wasted a lot of time.MR. GIFFORD: And — and you’ve invaded the privacy of an individual motorist who was innocent.JUSTICE SCALIA: Well, maybe the police department doesn’t care about that, but it certainly cares about wasting the time of its police officers in fruitless searches.MR. GIFFORD: The incentive of the officer to be able to conduct a search when he doesn’t otherwise have probable cause is a powerful incentive. As the Court has said, ferreting out crime is a competitive enterprise. And also, these —JUSTICE SCALIA: Willy-nilly. Officers just like to search. They don’t particularly want to search where they’re likely to find something. They just like to search. So let’s get dogs that, you know, smell drugs when there are no drugs. You really think that that’s what’s going on here?MR. GIFFORD: Officers like — officers like to search so that they can get probable cause so that they can advance their career. Forfeiture is also an issue in this —JUSTICE SCALIA: They like to search where they’re likely to find something, and that only exists when the dog is well trained. It seems to me they have every incentive to train the dog well.
Scalia can’t fathom any incentive a police officer might have to want a dog that falsely alerts. Well, here’s an obvious reason: civil asset forfeiture. A cop pulls over a motorist. The drug dog alerts, not because there are drugs in the car, but to confirm its handler’s suspicions. A search reveals no drugs but, say, $5,000 in cash. The cash, the alert, plus some vaguely-defined “suspicious behavior” is enough for the cop to seize the money. An innocent motorist is now looking at months of court dates and thousands of dollars to get that money back. The cost of winning it back may well exceed the value of the money itself. The cop might threaten criminal charges unless the motorist voluntarily signs over the cash. The money then goes back to the police department. It may even go to the specific drug unit that employs the cop.
I’ve interviewed drug dog trainers. Police officials will say that drug dogs have high false alert rates because they often alert their handlers to “trace” amounts of illicit drugs, perhaps because the drugs have recently been removed. But drug dogs can be trained to only alert handlers to measurable quantities of drugs. If Scalia is right — if there’s no incentive for the police to want a drug dog that alerts to un-chargeable quantities of contraband, because that would waste the time of law enforcement officers — then you’d expect them to ask that dogs be trained avoid alerting to trace amounts of drugs. The dog trainers I’ve interviewed say police departments explicitly request the opposite. Scalia was just wrong. Despite his conservative reputation, Scalia is actually relatively good on Fourth Amendment cases, but his inability to conceive of an incentive for police departments to want dogs that err on the side of authorizing searches is telling.
There are lots of other examples. Here are just a few:
— A few years ago, I wrote a long piece on prosecutorial misconduct for the Huffington Post. When you start to break down Supreme Court rulings on who should be held liable when prosecutor misconduct results in the conviction of an innocent person, you see that the court is extremely reluctant to give the wrongly convicted any avenue to recover damages. But the cases are always decided in a very limited legal framework, and the opinions rejecting one form of compensation often cite other ways the victim could recover. Rather than rehash the point, I’ll just quote what I wrote about the court’s decision in Connick v. Thompson, which overturned a $14 million award for a death row prisoner who successfully sued New Orleans prosecutors for misconduct.
Writing for the majority, Justice Clarence Thomas’s opinion illustrates how taking various theories of immunity in isolation can present a distorted, context-starved picture of what’s really happening in America’s courtrooms, and effectively shield prosecutors from any accountability.Thomas noted, for example, that because Thompson hadn’t attempted to argue a pattern of misconduct in Connick’s office, the court couldn’t consider it. That was true, but it was because the Fifth Circuit had rejected that argument two years earlier, in [a different] case. Thomas also wrote that because prosecutors get specialized training in law school and are required to complete continuing education, a district attorney like Connick can be safe in assuming that his subordinates are already aware of their Brady obligations. Therefore his failure to train them on the matter wasn’t such a big deal.Thomas’s opinion was at odds with Connick’s professed ignorance of Brady and the DA’s own admission that he hadn’t bothered keeping up on the law. But even if Thomas was correct, consider the implication: It would mean that as far as the U.S. Supreme Court is concerned, when prosecutors fail in their obligations under Brady, they must do so knowingly and willingly. That means the city can’t be held liable. But when prosecutors cheat willingly and knowingly, they’re protected by absolute immunity . . .The net result of the Supreme Court’s immunity decisions is a sort of case-by-case buck-passing. In declining to attach liability under one theory, the court inevitably makes a good argument for why it should attach under a different one. Unfortunately, the court has already denied liability under that theory, too, and either has no interest in overturning that decision, or won’t consider the possibility, because it wasn’t argued.
Thomas also argued that discipline from bar associations can also be an effective deterrent. But a justice with any criminal defense background would know that bar associations are notoriously lax at disciplining prosecutors for misconduct. A justice with criminal defense experience would also know that part of the reason for this is that there’s a huge disincentive for the people most likely to be aware of prosecutorial misconduct — defense attorneys — to file complaints. Doing so could jeopardize their working relationship with a prosecutor, to the detriment of their other clients. A discovery of misconduct can also be a bargaining chip in plea bargain negotiations, which again becomes a disincentive to reporting it.
— The Supreme Court has long been unwilling to second-guess the motives of police officers. Under the “Good Faith Doctrine,” for example, evidence procured from an illegal search to be admitted at trial if the police were acting in good faith when they found it. If a defendant has proof that exculpatory evidence was in the state’s possession, and that evidence then goes missing, the court has ruled that unless the defendant can show willful misconduct on the part of police or prosecutors, the defendant is out of luck.
In the 2011 case Kentucky v. King, the court upheld a conviction based on evidence police found after they illegally entered the wrong apartment after chasing a fleeing suspect. The police had knocked on the wrong door, but then broke the door down after hearing “rustling” inside. The suspect had fled to a different apartment, but the cops found drugs in this one. The Kentucky Supreme Court tossed the evidence, finding that though the police had mistakenly created the exigent circumstance under which they raided the apartment. The Supreme Court overruled 8-1. The justices found that although the search was illegal, there’s no evidence the police were acting in bad faith. Perhaps they weren’t. But as Justice Ruth Bader Ginsberg explained in her dissent, the ruling essentially provided a roadmap for police who do: Just say it was an honest mistake.
— In Hudson v. Michigan, the court ruled that evidence obtained during an illegal no-knock raid is still admissible at trial. Writing for the majority, Justice Scalia argued that excluding the evidence was too harsh a remedy for that particular Fourth Amendment violation. Instead, he cited other ways of discouraging illegal searches, such as better training and internal discipline. To support his position, Scalia cited the work of criminologist Sam Walker, who has written about the increasing professionalism of police agencies, and the increasingly better training given to police officers. But Walker himself later wrote in the Los Angeles Times that Scalia had mischaracterized his work. Police agencies are increasingly professional, he wrote, because the Supreme Court has imposed sanctions like the Exclusionary Rule. In any case, “better” doesn’t mean “sufficient.” It isn’t that cops are inherently evil or corrupt. It’s that nearly every incentive is nudging them toward taking constitutional shortcuts. It may be flawed, but the Exclusionary Rule is the one significant force pushing in the other direction. Take it away, and you’re creating a system that’s ripe for violations — as,f again, any criminal defense attorney will tell you.
— As I pointed out in a post here a few months ago, there’s a common misperception that cops are frequently ambushed during traffic stops. Yes, it has happened, but it’s exceedingly rare — far too rare to be a factor in any sort of balancing test between the Fourth Amendment and public safety. Yet the Supreme Court has done exactly that, relying on the myths and misperceptions about the ambush threat to allow police to order drivers and passengers from cars, and to do cursory “plain view” searches of vehicles for possible weapons.
— The court has little appreciation for public choice theory (the notion that public employees won’t always act in the best interests of the public). Or put another way, when performing balancing tests of constitutional rights versus a competing interest like public or officer safety, the court is uninterested in exploring whether the power it authorizes could or will be abused. It just assumes that the government will act in good faith. A good example is the 1990 case Michigan v. Sitz, in which the court okayed the use of roadblocks to check for drunk drivers. While acknowledging that the checkpoints were a Fourth Amendment violation, the court ruled that protecting public safety by preventing drunk driving was more important. Roadblocks are unconstitutional if they’re used to look for minor vehicle infractions, ID checks (unless it’s near the border) and other minor violations. But so long as the primary intent of the roadblock is DWI enforcement, police are free to issue fines and citations for other violations as they find them. As a result, these roadblocks tend to produce a healthy amount of revenue for police departments in the form of impounded cars and traffic fines, while catching only a tiny number of impaired drivers.
These are only a few examples. In a fascinating 2013 article published in the Tulane Law Review, Seth Stoughton — a former police officer turned law professor — reviewed Supreme Court opinions in Fourth, Fifth, and Sixth Amendment cases in which the majority opinion relied in some part on assumptions about law enforcement. From the executive summary:
The United States Supreme Court’s understanding of police practices plays a significant role in the development of the constitutional rules that regulate officer conduct. As it approaches the questions of whether to engage in constitutional regulation and what form of regulation to adopt, the Court discusses the environment in which officers act, describes specific police practices, and explains what motivates officers. Yet the majority of the Court’s factual assertions are made entirely without support or citation, raising concerns about whether the Court is acting based on a complete and accurate perception. When it comes to policing facts, the Court too often gets it wrong.
Here, for example, Stoughton looks at the framework within which the Supreme Court evaluates whether a police officer’s use of force is constitutional:
Were some future anthropologists to turn to the federal reporters to form an opinion about the environment in which law enforcement officers use force, they would have little choice but to conclude that those “circumstances [were] tense, uncertain, and rapidly evolving,” requiring “split-second judgments . . . about the amount of force that is necessary.” Since the Supreme Court first introduced that description in 1989, federal district and circuit courts have repeated it on more than 2300 occasions. It features widely in briefs and trial court documents and has made its way into federal and state pattern jury instructions.122 It is, by any measure, the accepted depiction of the environment in which police officers use force . . .
The vast majority of the time, then, officers use force aggressively, not defensively. That is, they act forcefully to establish control over a suspect rather than to defend themselves, a third party, or the suspect from some imminent harm. Injury to the officer— which can be uncommon even when police use force to defend themselves142—is unlikely. Considering that the vast majority of use- of-force incidents involve the use of aggressive force by police officers—typified by tactical preparation, a degree of premeditation, low levels of resistance, low levels of force, and a low probability of injury—the Court’s description of “split-second judgments” is simply wrong almost all the time.
He finds similar reliance on false narratives when it comes to consent for searches. (I should disclose here that Stoughton also argues that empirical evidence says the Exclusionary Rule is not much of a deterrent when it comes to illegal searches. I’ve read other studies suggesting it’s a mild deterrent. Regardless, unless we modify how we protect police officers from civil liability, it’s really the only countervailing force we have.)
It’s telling that in her time on the bench, the only justice with real-world criminal justice experience —Justice Sotomayor — has in her time on the court been the justice most skeptical of police and prosecutors. She has also been the justice most willing to look at how the court’s ruling might play out in the real world. I’m a civil libertarian, so I’d obviously like to see more justices who share her outlook on these particular issues. But the argument here isn’t that we need a court full of defense attorneys. It’s that we’re asking the court to decide some of the most profound and important issues we face as a free society, but we’re then filling it with people who have no experience with, no appreciation for, and no concept of how those issues play out in the real world. They’re making landmark pronouncements on rights and powers with no understanding of how incentives operate in the criminal justice system, often based on false narratives about police and prosecutors.
Worse yet, given the direction the nominating process has been headed in recent years, it seems unlikely that any of that is going to change any time soon.
(*This post doesn’t look into that case specifically, but to see how the theme of the post applies to it, see this analysis by New York criminal defense attorney Scott Greenfield.)