"The Criminal Procedure Revolution," Inside the Classroom with Professor Risa Goluboff

so today we're going to talk about the Criminal Procedure Revolution and thinking about crime and crime control in the 1960s raises very basic historical questions the kinds of historical questions that you all want to be thinking about every class session even if we're not talking about them there are the kinds of things that you should be thinking about overall in the class as you're trying to bring together the the various topics and themes so the first one is change over time what is the before look like and what is the after look like right where are you moving from and to to what extent is there change and in what ways second we're going to talk about causation why does this change happen not causation as in we will come up with one cause that leads to everything but thinking about the various kinds of causes and what kinds of historical inquiries you're making when you think about those different kinds of causes are their intellectual historical causes political social those kinds of things and then finally we're going to talk about the role of the court and the kind of sub question that I think of there is did the Warren Court make a revolution and there are a couple of aspects to that question what is the role of the court in this history before we start talking about these three questions though I just wanted to say one thing and I I don't imagine that we will succeed in the aspiration that I'm about to put forth but I am going to hope and that is it is very difficult I think to talk about this subject the way that Larry Kramer suggests remember Larry Kramer from the very first class that we should think about history right it's very hard to be a tourist in this time and to think of yourself as a traveler who's trying to understand what folks are thinking of because we know the end of the story and so when I say I want to think about change over time I want to think about what changes in the 1960s what is the world of criminal justice like before the 1960s and what does the world of criminal justice like after the 1960s but by that I don't mean the 1990s or the to thousands of mmxi right because there has been what what has been called the retributive turn in criminal justice and one might say you know the pendulum has swung back one might say it's cyclical there are lots of ways to think about what the relationship is between current criminal justice practices and say pre-1960 criminal justice practices I for one don't think they're the same and we can have a conversation about that some other time but I do want us to try to think what was it like in the 1960s as this was happening what did it look like was changing where did people think that this was headed without being weighted down by our knowledge of harsher criminal penalty is massive incarceration a burgeoning of substantive criminal laws so so let's try to do that and to to keep Larry Kramer's admonition in mind that we're trying to be travelers to this time and figure out what people were thinking about them all right number one change over time what do the before-and-after look like so let's start with the before how do you describe criminal justice in our before I gave you a few different things I gave you the field interrogation guide is one obvious place to start but you can glean from other readings what the before look like - so why don't why don't we start with field interrogation what is the before that this describes was any of this striking to you in the way this Police Sergeant is suggesting police officers get trained and is the is the question that the police officer is is asking whether this person is likely to commit a crime or not what are the labels that he uses about these folks at the bottom of page 20 page 246 of our course packet responsibilities the policeman what is be read us v1b so do you think that map's on precisely the legitimate or illegitimate nature of persons does that cap match on to the way you said it which was people likely to commit crimes so what's the difference right you read it right you read it from a post-1960 understanding right which is what are police looking for they're trying to find the people who might commit crimes or have committed crimes that what he's looking for what's the difference between the way you put it in the way he puts it and and and what makes someone a bad person is someone a bad person because they committed a crime or because they are likely to commit a crime or does the category a bad person go beyond their criminal propensities good answer but in what way how how do we know what does he tell us about the process of field interrogation that that suggests that this isn't just about criminals yeah yeah and and and who are the others look on page 248 under five selection of subjects for field interrogation the unusual persons who do not quote unquote belong where where they are observed automobiles which do not look right the unusual if you are unusual you are the subject of a field interrogation there was a fabulous outcry in late 1950s San Francisco when the Calaveras County had a something called pioneer days and so all these folks from Calaveras County were dressing like pioneers and they were wearing beards and a bulletin went out to the police force that said don't arrest these guys with beards because they're doing pioneer day and the implication was police officers were supposed to arrest others with beards because if you wore a beard in 1958 you were a beatnik or some other kind of subversive character because people didn't wear beards Josh they really you-you-you you don't think you're necessarily making a subversive statement but in 1958 in 1968 it was a subversive statement is a whole series of cases about facial hair and length of hair for men and whether these are rights that one has to engage in if you were unusual if you were unusual you were illegitimate the language you see the language that's being used here Trevor obviously really very localized but it also it speaks to something in a frame within a context involves no cell phones the interstate highway system is only seven or eight years old people do not travel as extension in communities were much more much so I think it compared to the interaction that everyone in this classroom observed today just in Charlottesville the situation in which this person writing is extraordinarily good so I think that's correct although the situation which he's writing is for cities that are actually experiencing influx of people and becoming much more cosmopolitan there's much more mobility than there had been in the past but you are right that a lot of the the professionalization of the police force in the 20th century the move to a professionalized police force in the first place the move to professionalize that police force more so than had been the case is a response to immigration it's a response to migration it's a response to industrialization and the sense that there are threats right so what I'm trying to point out here is what are the nature of the threats right it's not crazy for a police officer to say somebody who looks like they don't belong in a neighborhood may be up to no good right and that's clearly still the case but it's it's but the question is what makes someone look like they don't belong what are the characteristics how did they how do they appear to be legitimate were there other things chalant your practices are good right you have prejudices for a reason because you are police officer so if you think X category of people is likely to be committing crimes you're probably right you're absolutely right it's an invitation an invitation to prejudice david was out of hand that's okay basically awareness of the omnipresent sort of sort of the fear is this sense of the presence whereas here we basically have this idea that well that's what we're looking forward to create the source total sense that everywhere you are somehow the police are watching so as opposed to when the police are watching everywhere you live in a police state and that's what we should avoid he's saying no that's the goal right the omnipresent the police is going to prevent crime right Josh it's like that it's not and they're trying to apply this theory of how to be a police officer to like Oakland he's in Santa Ana yeah except like big cities in California but you're not like some 800 person town that is idyllic you know and it's it all these ideas like know all the people in your city but it's going to be impossible so I'm just try you know and it's all of these things they seem like a great idea if you're in that small town thank you 50s you know perfect bubble base and what does he say though about you know know everybody but if you can't what do you do what do you our strangers are presumptively problematic right so you know everybody and the people you don't know are even more suspicious right among the locals you've at least sussed it out and you can figure out who's legitimate who's illegitimate but when somebody new comes in then they're you got it you got to worry about them although I would wonder I would wonder and I think you you recognize this in your comments right when you say Andy Griffith's like right is there really such a place as the 800 person homogenous town where you know everybody is the same and the police are policing in a aw shucks we're on everybody's side kind of way right so at my my experience in my vagrancy research there's always an outsider right there's always either an outsider embedded in your community racially socioeconomically religiously culture excuse me culturally or there are outsiders coming through we're coming in that create problems right so I think you're right he's imagining a place that and his policing is not being applied to that place but I wonder if that place is an imaginary place even from the get-go Kali I found that really intrusive to of like what is where I lost my dog have to do it like fighting crime like it had the sort of Big Brother so again the David's point right that this is the police state if the police officers going to know when I walk my dog now the other response to that would be that's reassuring right that's what that's what he's saying is this should be reassuring if you are a legitimate person if you are a law-abiding person then what you want is for me to know you're out walking your dog this is when you do it you're not up to no good but that guy over there who's walking around at 11:30 at night he isn't legitimate and I'm going to prevent him from it assaulting you right so he he that's what his understanding of the role of the police is to make you feel safe fiamma presence of the police and I think our sense of safe police state right is a sense of that was the before right that that was that's a world that a lot of us can't relate to you max the whole thing kind of seemed in that in that write to me which is ironic given what people are set about how and I agree with us about how you're the big brother so there's a sense of threats now to be fair right he's a police officer this is a moment as you read in your readings of rising crime it is the case there's a lot of scary stuff out there and he feels threats now I think that's true and I think you're also right it's very hard when you read this it's hard when you read criminal justice history generally it's very hard to disentangle real percent real threats from the perception of threat right and and and there were real threats right and a lot of the unusual people do pose real threats and we can ask the question what do we mean by a real threat right and one of the things that doesn't come out all that much in your readings but one of the themes of criminal justice history in the period before this period that we're talking about is the move for police forces from a kind of morals regulation and social control to a crime control model right and that real threats include threats to the social fabric that we today don't necessarily think of as crime but that's part of the before right sodomy is a crime various kinds of sexual encounters or crimes vagrancy is a crime right there are all these laws out there that public drunkenness although that's still a crime under certain circumstances but it was way bro water in the before period what morals offenses were much more widespread and we're perceived to be real threats in a way that we discount and say no no the real threats are just violent crime or property crime so what else does our before look like and that's a great segue right what else does our before look like one thing we have is a sense of what policing techniques look like field interrogation is incredibly popular you see it come up in Terry stop and frisks are very and on field interrogation you see it in the memos about aggressive patrol this is not just one guy in Santa Ana California this is a pervasive form of policing so what else do we know about the before what do our criminal justice procedures laws look like Phillip something I got is that these structure in which these police were operating well you don't have the andy griffith you know small i'm dylan 800-number town you get the sense that you do have police officers who have very regular beats who are always in the same neighborhood and so you can be in a position to get to know people in the neighborhood but he also notices that is changing one of the problems that he identifies with implementing the techniques in his article is that police officers are being put on more varied beats and that towns are getting larger so it's not to blame if there's a change from from small town or consistent life to this much more urbanized system and technologically right he mentions technologically motorized patrol is a problem police officers in cars don't have the same access as police officers on the street police officers responding to calls you know 911 calls I don't think it was 9-1-1 back then but two calls for service are being diverted away from the beat patrol so so we've got other changes so let's think about also not only what we see in field interrogations but what we learn from the wheel rich what we learned from the Anthony Lewis article and how he describes what happens to Gideon right what else can we suss out of these things Jessie right incredible variation not only across states but across localities how much how constrained are police officers by constitutional law in the 1950s very constrained not constrained you can all say it together not constrained right like not constrained this is not when he's thinking about what can we do as police officers he is not asking the question have the courts told us there are things that we can't do are there certain things that we can't do that is not part of his understanding of what constrains the police or what what the police are authorized and enabled and empowered to do it's just not part of the conversation in a meaningful way partly because this is all being done at the local level partly because it is not it has not been thought up to a large extent as constitutional questions other things about the before what about so we know about police officers we know about lawyers Jesse mentions what else there scientific criminal relationship right the social scientific turn the social deterministic turn that people are criminals because they're made criminals by society as part of the before and how integrated is will rich think that those those ideas are in the actual processes of the criminal justice system does the criminal justice system in the before do a good job of then treating folks as if they are creations of society right right the before there's all this rhetoric about social determinism and rehabilitation and social social responsibility for the criminal but in fact according to will rich the regime is incredibly harsh it's incredibly strict it doesn't actually implement what one would think of as reforms that would make the social determinist ideas come to life in the system itself there are a few other things that I wanted to mention that don't come out in your readings that I think are important parts of the before so in addition to there being very little oversight of what the police do there's very little oversight of the judicial process itself part of that has to do with counsel part of that has to do with what local courts look like and how they operate especially low-level local courts police courts magistrates courts justice of the peace courts where crimes like vagrancy public drunkenness prostitution disorderly conduct are being heard and there's a wonderful article that I highly recommend if you're interested in this kind of thing by again and Caleb Foote who was a professor at the University of Pennsylvania Law School he writes this article after having sat in the Philadelphia magistrates courts for months at a time watching how they operate and what he reports is that 60 men pretty much always men 60 men would come into the room the judge would tell them to stand he would look around them he would say you you're in a collared shirt maybe you have a job to have a job and if you said I have a job he'd say are you go but I don't want to see you back here again and then he'd look around some more and he'd say the rest of you 60 days in the workhouse and that was it that was it that was it there were no lawyers there was no notice of what the charge was there was no opportunity to defend oneself that was it and in fact there was one he he cites one thing that at one moment you know there were something I don't know there were 1500 vagrants in the workhouse but there were only a thousand convictions for vagrancy on the books at that moment right so nobody cared about what the charge was nobody cared about whether you were going to defend yourself from the charge and this was incredibly common there were some justice of the peace courts in which the justices of the peace were paid if they convicted you but not paid if they acquitted you right that's a real before story right you can't imagine that story today they were paid although we do have yes we do have the the police officers yeah yeah we have the police officers who are planting drugs on their suspects in order to make their quotas you're absolutely right but we do not have courts anymore in which officers are paid if they if they convicted not equipped but you're totally right about that you did miss my conversation at the beginning of class in which I said we're going to try to hold an advance what's going on today but but but it's irresistible to mention yes the resistible well so the workhouse was a prison in which and in the workhouse comes out of 19th century ideas about the immorality of crime the need to instruct people in the good habits of hard work and so it's a throwback to 19th century early prisons in which work was the touchstone ideal and workhouse were only used for people commit convicted of these low-level crimes they were often it just they were a form of prison where the idea was that you work and they were called work houses and they've largely I mean we saw a prison farms we solve lots of prison labor but you don't we don't have these particular institutions so much anymore are there other things people want to raise about the before need right in partly why we don't see that today is because in the 1990s there was a prison reform litigation Act passed by Congress that made bringing lawsuits against prisons much more difficult so Congress responded to this incredible federal court supervision of the state prisons as well as a huge increase in prisoner litigation in general not just on a large scale but on an individual scale and so that has stopped but you're right prisons not that they're lovely places to be now but prisons in the pre nineteen sixty zero were pretty horrific there wasn't any the Eighth Amendment was not operative in the prisons in the sense that anyone would say the conditions of my confinement or unconstitutional that that that is not happening in the 1950s and the conditions of their confinement for for many many people were pretty awful I think that's I think that's a good point Garrett they can't use these terms that leave it most community like this is still what they do and I feel like I'm this is a law school we can react at least a reaction but I think if I gave this list of a tool Quran from my community I think 90% would love this that's what encouraged at least uses activists maybe not use these terms but to prosecute and single out these exact teams so I don't know if this ship is really a big fort after that so so this is why I want to hold today in a bands right because what I want us to figure out is what did this shift look like in the late 1960s right when this shift is just happening because I think there's there have been real changes over time since that moment and it's possible that the folks in your town would like this in 1968 they would vote for Nixon right that that there are always folks who like this list and there are I think that one of the main difference is if I could say it this way is that there are always folks who like this list there are always folks who don't like this list but before the mid-1960s the folks who didn't like this list had almost no power right they were the people targeted by this list and what happens in the late 1950s and 1960s is people with power elites in the legal system legislatures scholars don't like this list and that's one of the that's where the change happens right is it's not the case that this list goes away or that this model policing goes away or this model policing doesn't have defenders anymore but suddenly there's an alternative model of policing and maybe not so suddenly but there's an alternative model of policing and then you have a competing views of what the criminal justice system should do and how it should work but I take your point that it's not as if the whole world is going to say this guy's crazy they're not right that's that's a lot of what we expect the police to do still is the case last comment and then we're going to move on yes Chris yeah sorry that was you I don't know how like how many offenses worst reliability but it seems like that was important and kind of show that the courts ignore me here too much by the individual having a mens rea requirement just kind of doesn't take the kind of things away any sort of like particulars in that situation absolutely I think that's a great thing yeah so and to put a little gloss on that right it's not just that the procedures of criminal law are different in the before period or the sanctions which Sarah was talking about it's also that the criminal law itself what was prohibited and how it was prohibited was also different right so I think we'll rich mentions this but you want to think that when we're talking about a criminal justice revolution there are three potential aspects to it right one is what does the criminal law say right what our legislature is passing as the criminal law the second is how do seizures work what happens on the street what happens with police officers what happens in courtrooms and then the third is what do sanctions look like how does punishment change what is what his punishment looked like so I think that's a great point and what's the after them we've started sort of getting into the after a little bit but what's the after how does all this look different after while and we'll rich suggests right so this goes to to Sarah's comment and one thing that I think I want to point out is not everything has changed right there's continuity - so this idea of rehabilitation clearly existed before the 1960s what the model Penal Code does is try to coherently integrate ideas of social determinism and rehabilitation into a penal code that also talks a lot about individual responsibility and mens rea a-- and so one of the things that happens which is sort of at a high level of theorizing right but one of the things that happens is things that were at odds in the past which are still somewhat at odds right it's a little bit odd to say crime is socially determined and to say you're not convicted of a crime unless you're culpable but how are you called the bull of crime a socially determined one of the things that happens is there is a greater integration and a greater attempt to create coherence there but I don't want to suggest that everything has changed over time partly because of what Derek says and partly because a lot of the ideas that get entrenched in the 50s and 60s have started have been percolating for some time and have been moving around and instituted in various places there have been some reports in the past and then and then they get entrenched more now what else what else is the after Josh yeah greater uniform this is one of will riches big points right it's greater national uniformity partly because the Supreme Court gets involved and so you do have constitutional national constitutional level restrictions on what police officers and courts and states can do and partially of more national uniformity because of the model Penal Code and lots of states following the model Penal Code which creates more more uniformity Callie that the federal government can be rights protecting and not just encroaching and in fact maybe should be rights protecting against local norms prejudices that that are that are thought to be increasingly problematic amber so this goes to Chris's point right the strict liability crimes that changes and there's decriminalization of lots of things and and some of that its total decriminalization and some of that is the creation of administrative or civil sanctions for certain kinds of offenses David you also go talks about the backlogs that are being created of districts taking about two meters between the diamond and trial problems that happen so you see how this new system procedure takes time right procedure takes a lot of time there's a case in 1960 out of the Louisville police courts where this guy's Sam Thompson wants procedure he wants a trial he wants a lawyer he wants to contest the charges against him and the what Louisville responds is these police courts see 25,000 cases a year we can't give all those people a trial we have to change our whole system and in fact one of the things that happens right is a huge increase in plea bargaining right if you require more procedures you can't possibly give all those people procedures and in fact mostly we don't right the vast majority of cases are decided by plea bargain and not by a trial what so let's just add you want to get on the table the Supreme Court cases I'm still only on page 2 of 14 this is problematic and it's not your fault I mean you have great things to say but it's my fault but just to get on the table the cases right so you've got a whole bunch of cases regulating the police cases like Matt V Ohio which established the exclusionary rule Miranda v Arizona about warnings Escobedo V Illinois is about the right to counsel during interrogation you've then got a whole bunch of cases that regulate the courts so there are cases about transcripts for Appeals this case Griffin V Illinois from 1956 one of the earlier cases that if an indigent couldn't afford to get a trial transcript then the state had to provide it for him there are cases that open up federal habeas relief for state prisoners cases that change due process standards say for juveniles in regal that's mentioned in your readings there are all the prison cases that bring state state prisons under federal jurisdiction and really do as Benita was saying really do change the way state prisons are run as a result of findings of Eighth Amendment violations of cruel and unusual punishment they're also the Justice the Peace courts I was talking about those are challenged and those are largely eliminated we're not not not all just appease courts but the ones where they get paid for convictions and not acquittals that that goes by the wayside too so I just want to sum up the sort of before-and-after with a description from a book and if you're interested in this stuff this is a real real classic book by a guy named Herbert Packer called the limits of the criminal sanction and in this book that he writes in I think 1968 he describes two models and and this goes back to what Garrett what the conversation Garrick and I were having before so he describes two models of the criminal system and the old model he calls a crime control model and the crime control model assumes that the repression of criminal conduct is the goal of the criminal process right repressing criminal conduct preventing and repressing it and that the failure of the repression of crime leads to disorder it leads to a breakdown of public order and it leads to ultimately the opposite of what David and Callie were saying that without public order you can't have human freedom right so you need a crime control model in order to make the world safe for people to exercise their liberty and freedom on the the crime control model use the criminal justice system as an assembly line you get somebody on it and they go through all the steps and the goal is to convict them at the end of the day because by the time they've gotten on it you think they're likely guilty of the crimes a--they that you you think they've committed the new model he calls the due process model although some have said after he wrote that's a little bit of a narrow way to think about it because as we were talking about it's not just about due process it's also about the kinds of laws state pat states passed it's also about the kinds of sanctions that one puts into place so it's not only procedural and the due process model assumes that the loss of Liberty one experiences the criminal process the stigma of being brought into the criminal process is the heaviest deprivation the government can inflict on an individual right that that's where harm laws is in the government pulling somebody in to the criminal process a criminal process says this model but is unreliable subject to abuse subject to prejudice subject to inequalities and that that they they view the criminal process or they think the criminal process should be viewed as an obstacle course right so that at each stage the government has to make out its case at that stage probable cause pío pío reasonable doubt they have to make out their case for why they have the authority to do this horrible thing to you and the goal of the due process model is people are falling off the assembly line all the time due to this obstacle course I've just mixed the metaphors right but that's that's the that's the way this is thought now I want to say right and this goes to what I was talking about with Garak right it's not the case that the Due Process Model enters and takes over everything and suddenly of a new paradigm and nobody is attached to the current criminal control model right people are very attached to the crime control model especially police officers prosecutors state legislators right there's an incredible attachment to that model and they fight tooth and nail which we see and we're going to talk about in a minute alright so we've got our before we've got our after we're all comfortable before and after why does it happen why even though the criminal the crime control model continues to exist why do we get this new model why does it become more dominant why do we get what is often called the Criminal Procedure Revolution or the due process revolution I think there are a bunch of different answers that we can see in the readings Emma or so there are international pressures right both they're both international legacies right so of Nazism fascism and international pressures ongoing at the moment in the Cold War and the fight against communism that lead to - some of this change I think that's absolutely writing you want to think about it's interesting right the the will rich is a very recent piece and you can see the influence of the International turn that we've been talking about in that piece that that would unlikely have been there in a piece written 30 years ago right but he is attuned to the idea that we are part of an international system a global world and we should think about how those how those tensions operate here other thoughts about causation Josh so so that's to say that the court is not acting in a counter majoritarian way right so if we're thinking about this as a judicial revolution it's not just a judicial revolution right it's actually much broader than that so why is it what's happening why why do the states think this - and not just the Supreme Court what's been happening that has led so many different kinds of people in this direction trevor challenged news 8 on Gideon's case after it went back to florida to what extent is the proliferation of the legal profession and in fact these cases are actually able to get there are more available attorneys to handle them I mean like you said earlier the Philadelphia context is correct prior to the 1960s you get 60 people convicted at once that's pretty it was probably fairly common in the suburban area or the urban areas across the United States how much did the nationalization of transportation air travel communications play into the mass proliferation of attorneys in terms of producing these cases normally there would have been deep business so yeah the population of lawyers in the United States goes up steadily throughout our history right and and in fact it does increase a lot in this period as a result of the democracy the GI Bill the democratization of the profession allowing in more immigrants more women more people of color although these are still elbow the people the number of people of color who are lawyers in the south is still shockingly low I think there's you know one or two lawyers in Alabama in the 1960s black Wars but so that's part of it but part of it is they get jobs because of this revolution right the number most UVA law grads do not go out and hang up their own shingle right but if you did one of the places you would get your first business problem would be court-appointed criminal cases right that's one of the things that happens and the same thing is true with legal services right so legal aid gets established in 1960s and that's yep partly there are more lawyers available but it's partly a new commitment to the way we think about the justice system and who deserves representation that then creates whole new swabs of the legal profession that lawyers fill absolutely absolutely tie together and that's been going on kind of things we going on for decades we get decades so that kind of unable the court to kind of bypass the traditional federalism concerns about like prisons and things like that and it's typically absolutely right this is part of the race revolution right this is part of the civil rights revolution the court clearly thinks that that's the case advocates clearly think that's the case with anybody struck by the n-double-a-cp s brief that talked in a brief about Terry V Ohio what are they talking about interracial couples right the whole thing is I mean they have there's more of a brief this is why they're interested in this case right it's all about interracial couples why is it all about interracial couples in 1967 what happened right before this case named a case from common law yeah nice work loving right the court has just said you can't criminalize interracial marriage and they come back and they say okay but if you don't criminalize it this is what cops are doing now this is what states are doing now maybe they won't criminalize it but they're going to arrest them and harass them and make them crazy they're saying to the court this is all part of the same thing and the court knows that right the early cases that come up a little bit in your readings from the 30s from the Scottsboro incident the first times that the court does dip into constitutional Criminal Procedure and and and reverse what state courts are doing with regard to criminal cases is in the case of a highly publicized highly racialized incident the Scottsboro case from 1930's Alabama so if absolute case that race is coloring this to a tremendous extent that's a big part of the story Jesse you absolutely right and we'll rich points this out that there's much more federal capacity and there's much more acceptance of the federal government playing a large role in lots of aspects of life that starts with the New Deal continues into World War two is a part of the idea of the Great Society under Lyndon Johnson right the federal government is more present and the Supreme Court in particular is more present John and how does the Criminal Procedure Revolution relate to that right there there's general upheaval although I think it cuts in multiple directions this general upheaval right I think it's part of why the court does what it does in Terry as well but as a general matter yes I think it's not just the civil rights movement it's other social movements it's political movements it's a youth revolt partly in response to Vietnam partly not what if you were an intellectual historian you read a legal and intellectual historian like say will rich what else would you point to as as causal here we already talked about it in the before and after but I want to get it on the table as part of the cause because I think it's easy to just say it's just context as opposed to having any causal relationship itself emma was out of hand rise of like social scientists in social determinants I think that shift an intellectual history is pretty cute in terms of not just Sara Lee happiness black-and-white view of you know the government the police are good everyone there are huge changes in intellectual trends right and it's not only among social sciences which is one of the differences I think in this era it's a month legal elites right its law professors the AI that creates the American Law Institute that creates model Penal Code they're not crazies on the fringe they are the mainstream elite of the legal profession saying we can't run criminal justice this way anymore this is totally unacceptable and part of that comes out of social science studies in the 1950s you see tremendous studies of how criminal justice systems actually work and the view that comes out of those studies shocks a lot of people and they say wow we didn't realize that the police did this kind of thing we didn't realize that course operated in this way we didn't realize the corruption the prejudice the inequality the injustice and we have to do something about that right so what one could say that you know the the the the scholarly turn is the reaction to Nazism totalitarianism or the civil rights movement emails but it has its own heft as well right and that's something that will rich is really emphasizing is when you're thinking about causation you want to think about there are all these different streams and they're all in this case not all of them because I think John's are pushing sometimes in the opposite direction but many of these streams are pushing in the same direction Philip you see illusion look very very different if you have a chief justice Byron white instead of for a warrant they look different you don't have so you're sayin causation is in part a function of the court itself and the justices on the court nice segue number three Rome Accord Thank You Philip that was so elegant okay so let's talk about the role the Court did the war in court make a revolution and I you know I named this class session the Criminal Procedure Revolution but part of me thinks I should have named this class session the Criminal Procedure Revolution question mark and and I think there are two reasons why there might be you know I love question marks why there might be a question mark at the end of that title so I'm going to introduce them and then we'll take them one at a time so the first is questions about whether the Supreme Court made a revolution right what was the Supreme Court's role in in Crime Control did it create a revolution how central was it to this change and then second is well was the Warren courts still creating a revolution at the end of the decade even if you think that they were creating a revolution at the beginning of the decade and I want to start complicating the traditional view that most people have of the Warren Court versus the burger court that the Warren Court was liberal in the bird Court was conservative I want us to start thinking about that so we're going to talk about these two things separately so first let's talk about the Supreme Court's role in crime and crime control and the Criminal Procedure Revolution there are two stories that get told about the Supreme Court's rule one is told by liberals and one is told by conservatives both of these stories assume that the Supreme Court was central to some revolution but they have different normative takes on what that revolution did and how salutary it was so the liberal story is embedded in Gideon versus Wainwright right this is the story told by Anthony Lewis he actually wrote a whole book about this case called Gideon's trumpet it's a wonderful read on it you know he's a journalist it's not a scholarly work and it's it was a huge bestseller and it was an iconic book about the way the Supreme Court works so what's the story what's the story that Anthony Lewis is telling about the Supreme Court and American criminal justice and this revolution what's Anthony Lewis's story Jessie that's it right that's it triumph it's a vindication of American constitutional ideas the court is good it cares about these small folks right and and it creates change right now there are some indications in this story that maybe that's not exactly true Josh points out 22 states are already on board with this right so how heroic how counter majoritarian lis heroic is the court one might say it's more so than you might think it's mostly the southern states that don't have public defender services partly because of race and who they imagine the criminal defendant is and who would benefit from public defender services so one might say what Supreme Court is doing is raining and outliers not so much being outright counter majoritarian there's another way to complicate this story which is and I wonder what you think about this right so the story is Clarence Earl Gideon writes his letter to the Supreme Court someone somehow finds this pro se petition and look what they do they assign aid for - who's going to be a Supreme Court justice himself in the near future to argue the case it's not exactly how to story with the story actually went that the justices had already decided the case of Douglas V California anybody know what Davos V California it grants a council for your first appeal of right as a follow-on to Griffin v Illinois that I was just talking about before so it grants council for your first appeal as of right be a little weird to grant council for an appeal when you don't get council for trial maybe and they have already decided Douglas before Gideon but they don't release the Douglas opinion until after they decide Gideon so that it looks like it came in the right order moreover so they've been looking for a case that Rey is is the issue in Gideon and there had been an earlier case that they considered but the defendant was so unsavory I mean Clarence Earl Gideon right like he's your regular drifter he's a vagrant easy but he's not evil he's not awful he hasn't done some horrible thing so they had another case and I don't recall the facts of it at the moment but the defendant was so awful that the court wasn't quite sure whether which way they were going to go on it and they didn't take that case so they are looking for Clarence Earl Gideon it's not just he brings something to the court and suddenly they see the light now what do you think of that does that does that totally break down Anthony Lewis's argument is a totally undermine his argument or is that fine you can still make this claim you can still tell this triumphal a story even if if those those things are the case Kali being like those in power we're still just doing what they wanted to do and they were using weak individuals to do it already plant like that he didn't really change anything so sad so anybody want to defend the the triumphalist narrative against depressing a hegemony david was going on sort of overturning a Betts V Brady and sort of what you have with Johnson Serbs I guess was Blackwell son JD yes so I think you have a sense of pride and sort of this idea that's you know the doctrine itself is a tribe there's something that has been brewing for a while and he kind of like going on it's a tribe that Brown was a triumph over blessing or something so Gideon doesn't necessarily Gideon himself doesn't necessarily have to be part of it to be a triumph okay other thoughts on that max certainly is we take benefit over tournament system in a way that is a huge unfortunate defendants like Gideon seeming that you know the court is still was someone who was writing to the Supreme Court and whether or not ever gonna find another case elsewhere they didn't he thought he had rights it turned out he did right he was wrong about the law when he first wrote but then he he was right he changed and there he is sitting in his prison cell and a thousand people are released from Florida prisons after this case right that's kind of that's kind of big but that's not to say Kelly I'm not saying you're wrong I think because because I think there's there's lots of reasons to think like he's a tool he's a pawn but he's maybe he's both a tool and also an inspiration right or maybe one says it requires both of these things right if the case doesn't come if no Gideon or a war or Clarence Earl Gideon can you know a warrant nice if no Clarence Earl Gideon writes that letter the court could wait forever right but it's also the case that the way the court works is not someone brings a case that's totally out of where the courts mind already is and they're going to go for it right there needs to be some convergence between the kind of claim that he's making and things that are already within the legal elite discord and categories that they're already thinking about or it's unlikely to move forward all that much and actually we're going to see in the next on Monday when we talk about poverty we're going to see what happens and how claims get shaped to fit into legal boxes that maybe aren't that comfortable with them and then what that does when you get to court and I want you to think about that as you as you do the readings for Monday okay so so we've got the liberal story what's the conservative story the chicago mother's letter what's the conservative story Josh crime is crazy crime is crazy at this moment I'll just give you a couple of statistics in 1960 there were 1,800,000 crimes according to the FBI crime statistics which are notoriously flawed but but we're going to use those for all three of our things right so they're always notoriously flawed okay so in 1960 there's 1,000 1,800,000 crimes in 1970 there are five million five hundred thousand crimes and by 1975 that number had doubled again crime is in fact going up right there's a perception and there's a reality the rate of crimes is increasing and a lot of people are blaming the Supreme Court for the rise in crime saying you have handcuffed the police the police can't do their jobs you are letting criminals go free with this exclusionary rule right yeah maybe the cops shouldn't have searched them but when they did they found drugs been gone how can you then let them go free they were criminals right and this is where the battle between the crime control model and the due process model is joined right so adherence to the crime control model are responding to this and saying you the court created this problem now there are questions about what created the the rise in crime at this moment the baby boom meant that there were many many many more young people who are the people most likely to commit crime at this moment war in West Warren's theory about why there's so much crime ghettos and war right so ghettos is a huge part of why people think there's crime LBJ creates this crime Commission that ends up saying the reason we have so much crime is because we have concentrated poverty in ghettos and Warren says these people these young people they know nothing but war they know nothing but a devalued human life that we've brought them by by being engaged in war all the time but that said many people think the Supreme Court the Supreme Court caused the rise in crime the Supreme Court did this it is a very hard thing and I I say the role of Supreme Court I should have a question mark there too right we can't answer the question we in this class can't answer question I'm not sure anyone can answer the question of what actually it was that the Supreme Court did on the ground right we know some things a thousand prisoners in Florida were let go as a result of Gideon we know that police officers now read folks their Miranda rights we know that counsel are now appointed but we don't actually know how effective any of these things are right there are studies that show that reading some of the Miranda rights doesn't actually change the way anything happens after that moment there are studies that show and cases that show in horrific detail at the council that most poor folks get is pretty incompetent and not all of it but it often is that they're overburdened that they're not great lawyers that they do an incompetent job there's lots to show there's lots to suggest that the liberal story is not true in that whatever it is the court did up there it didn't have salutary effects on the ground we don't know whether it did and by the same token we don't know whether it had bad effects on the ground which is kind of the flipside right the more the procedures actually protected criminal defendants the more likely it was there were some criminal defendants who went free now that's not to say the Supreme Court is on the hook for the entire rise and crime in this period but who knows we can't judge that right we can't judge that but I just wanted to identify that the way the stories are told both sides assume that the Supreme Court plays a huge role in both of these processes and I think that that's an open question the last thing I want to talk about today is Terry right and is the question of whether the Supreme Court's Revolution the war on course revolution is a linear one whether they're still revolutionising at the end of the war on Court Warren steps down in 1969 and what is Terry do what do you make of Terry how do you explain Terry if Terry were decided under the burger court no one would blink an eye right why is Terry why does Terry come out this way under justice warrant under Chief Justice Warren Matt really this federal system so they are they are seeing problems in the world are these problems of their own creation you think do you think that they buy the story they buy the crime no they're just see the problems and they think we have to give the police tools to address some tools to address these problems ma you had your hand up and also I think I felt big it's sort of drawing a line between safety and sort of investigation and I just think that's good just things are done yet you have the right to protect yourself but willy-nilly search them for everything so that's a different kind of response right than Matt's so Matt's takes them as thinking about the world and the police and trying to solve a problem and emma is a little more skeptical and thinks that they're politically responding to criticisms of them right that this is a more political response my right Monica so let's so let's take this and ask a question and we start talking about last time when we talk about a case there are lots of ways we can think about the case right and what you seem to be saying to me tell me if I'm wrong is they didn't actually think the case as a decision in the world was necessarily going to do all that much right that they don't have that much efficacy but that they crafted the case expressively to offer up a vision is that is that what you're saying right so it's not only because I think that's really interesting right it's not only that people outside the court think about a case differently the justices think about the case differently from the very moment Terry V Ohio gets to the court the outcome is not in doubt it is clear it is clear from the very first conference that they have on this case that they are going to affirm this conviction it is clear and then the question is how right and one possibility of how is they're going to say there was probable cause there's a probable cause standard everywhere probable cause is always the standard we lose that standard but it existed here and the other possibility so they don't go for that right the other possibilities say no a different standard applies here we're not under the warrant Clause we're under the reasonableness clause and and so a lower standard exists when the intrusion is less when it's only a stop-and-frisk as opposed to an arrest and search there's a lower standard that's what makes drugless apoplectic right Douglas says you can't do that there's one standard you can't do but the reason they do it is because they think if they keep probable cause it's going to get water down the probable cause standard and you're going to find probable cause everywhere but they don't ever consider huh if you do probable cause go to water chuckles there's not probable cause your because there is no way at this moment in 1968 with riots and Vietnam War protests and students taking over university building and crime on the rise there is no way that they are going to reverse this conviction that is clear right the case as decision was decided from the outset they do not see any other possibility the case as opinion right so one of the other possibilities is the cases of opinion and we think about the legal reasoning of the case that's very much on the table did you love Brennan's memo to the chief he's like chief I rewrote your whole damn opinion because it sucked if I have offended the proprieties please let me know right but in fact Warren uses the Brandon version of the opinion right and Brennan so so let me let me stop for one second so you you have questions at the opinion is it going to be probable cause is there going to be a new standard and they create this new standard and people take note of that new standard that new standard does have effects in the world and the way people think about police stops on the street but then the next thing which is what I think Monica was really talking about is well so so is the opinion as an expression of an imaginary that's not really satisfying is the opinion as reflecting some view of reality right and so one of the main things Brennan says in his opinion is not just I change the legal basis of their opinion I change the tone right if we're going to give the decision to the cops we have to give the rhetoric to the black people right we can't give both to the cops because if we give both to the cops the cops are going to go crazy they're going to think we are wholly behind them and that can't be and it also means that all those people who are rioting in the streets because of conflicts between young african-americans and the cops are going to feel abandoned by us and we can't let that happen either right so Brandon's much of Brennan's concern is not with the decision it's not what the analysis although he is concerned with that it's about the imagination of what the world looks like and how the world works that this opinion is going to provide and then the fourth thing right so we talk about a legal decision a legal opinion a reflection of reality or an expression of an imaginary and then the fourth thing is a political intervention right and this goes to what Emma was saying right they understand that the the Omnibus Crime Control Act is happening they understand that the 1968 election is a lot about the war on crime they understand that they are getting the brunt of political criticism for their actions and so they are pulling back and saying no no no we are not going to completely tie the hands of the police that's not what we're doing right so it's also a political intervention so you can read the case on all four of these different levels I think why so I think is less important so one thing I do want to make clear though and I think Emma says this too is even though the decision is largely for the police it's not entirely for the police right because it's on tape as a possibility that the court will say anything short of an arrest and a search isn't even cognizable as a fourth of any harm and so one of the things that the court does do in this case is say it's cognizable the Fourth Amendment covers these kinds of things you can't just walk up to a person on the street as a police officer start talking to them and have nothing constitutionally restraining you so they do give something but it's still much less than what they give I think to the police officers but you're right right they're concerned about what people are going to think what people look right who reads how far does this go what what and that goes back to the role to court right so what role is the court playing what do people think of the court you know you got where - Gideon get his idea that he had a right from where did that come from and he was eating a haddock quite right right but he had one he wasn't that far off that's give some rights so where does it come from does it come from the opinions does it come from a newspaper coverage of the opinions that might reflect the rhetoric right how does it disseminate out and and how do people then understand what it is the courts doing and what their rights are under the Constitution last comment Trevor doesn't see that by grounding it in the reason is open it up for textual lists so 30 years later because there's there's some commentary now that liberals are trying to resist any sort a seizure case coming before the court until they get another liberal justice on the court because Scalia has recently been grounding some Criminal Procedure opinions in the same reasonableness standard that Terry elucidates right so and that's and that is right and that's a point so that's a point that is a more general point that is very important right which we talked about in Brown it which is the point of unintended consequences right you use a new frame you create a new category for a particular purpose at a particular moment and and that category in that frame is available for future litigants and future courts to reshape and reframe in new contacts on behalf of new litigants right that's part of the process of what happens in constitutional history all right we're going to go it's time but let me just say one last thing I will leave you with a question so the question is I want you to think about I want you to abstract from this story that we've been talking about today and it particularly the last question about the role of the court to abstract about the way the court interacts with States state court state legislatures other branches of the federal government public opinion actual change right so does this story look like a Lochner story is the court cabbage or Terry encountered or Terry encounter majoritarian and then finally in Terry it realizes it shouldn't be kinda majoritarian at all anymore and that it's not right into capitulates to public opinion is this a story that is in fact the court following public opinion like the briefs that the 22 states submit in Gideon and so it suggests a very Friedman's view that the court never gets that far from public opinion and really what it's doing is raining in outliers what how would you think about this episode in American constitutional history and what other episodes it looks like right so starting to think across topics and across time periods to see what role the court is playing and and how its role is is similar or different from its role in other instances alright thank you everybody I'll see you on Monday and we will talk about poverty in the Constitution

Channel: University of Virginia School of Law

Views: 58,656

Keywords: UVA, UVA Law, university of virginia, risa goluboff, civil rights, police procedure, crime

Id: Z_EK_gd-9h4

Length: 76min 26sec (4586 seconds)

Published: Fri Mar 30 2012