Fault Lines
21 July 2017

What Does Scalia’s Death Mean For Criminal Justice?

Feb. 15, 2016 (Mimesis Law) — Antonin Scalia was, and will continue to be, a massive figure in American jurisprudence. When word of his death tore through the internet and media on Saturday evening, among the variety of reactions was one undeniable truth. This matters.  During his time on the Supreme Court, Scalia was pilloried and praised by detractors and fans.  Villain or savior, it seems that few are neutral as to the man or the impact he had on our nation.

For someone in such a powerful position, his passing cannot be disconnected from his potential successor. The Justice who was identified, fairly or unfairly, as the Court’s conservative standard bearer, will undoubtedly have his position on the bench filled by someone very unlike him.  Even if the President were to throw a curveball and appoint a conservative, there will only be one Antonin Scalia.

So what does this mean about the law, seeing as how the Supreme Court has, on occasion, dabbled in this area? This judicial transition comes at a time when our nation is fiercely engaged in a re-examination of our criminal justice system.  The increase of video evidence and the government’s ever weakening embargo on such evidence has fueled the rise of the Black Lives Matter movement and calls for justice reform from many corners of our society. The parts of America that have tended to escape the watchful eye of our criminal justice system are finally beginning to recognize the systemic unfairness within our policing, courts and prisons that particular communities have had to live with for decades.

So when one of the nine most powerful attorneys in our nation falls, many will want to gauge the effect this will have on criminal justice. First, while Antonin Scalia held firmly to outdated views on many social issues, he authored numerous opinions which protected the rights of the accused and convicted.  In his fittingly reverent and honest eulogy, Scott Greenfield points out that Scalia wrote decisions that strengthened the right of the accused to confront witnesses, overturned enhanced sentencing under a vague clause of the Armed Career Criminal Act, limited the government’s ability to track a suspect with GPS monitoring without a proper warrant and protected the sanctity of the home from government intrusion. Disagree with him all you want, but there is no denying that on the whole, Scalia was no enemy to due process.

But, in the realm of criminal justice, what impact did he have? And more importantly, what impact will his successor have?  Asked another way, in this time of significant upheaval within our system, is the Supreme Court really all that important to the criminal defendant?  Sure, if one particular defendant is able to have his case heard by the Supreme Court, the decision will obviously have an impact on his life and similarly situated defendants who follow.  But it has been a long time since Gideon, Terry, Miranda and the many other decisions in the pantheon of U.S. criminal law.  The Supreme Court ruled on fundamental principles of fairness and due process long ago, before Scalia was even on the bench.  The principles are there.  Our system just refuses to abide by them.

Gideon established that indigent defendants had a right to counsel, thus leading to the creation of our public defender system. But can anyone suggest that our current system administers and protects this right in any way that could be described as “fair?”  When one attorney is responsible for 200 criminal defendants, is that constitutional representation or triage?  The right exists, but often only in theory.

When the police routinely arrest far too many people for crimes they did not commit or for situations where discretion should dictate against arrest altogether, the Supreme Court is not tasked with stepping in and beating this back. When far too many prosecutors hide or twist evidence or delay meaningful discovery in order to keep their batting average at a respectable level, true justice be damned, there was little that Scalia or any of the other Justices could do.  The fact that our system ignores the clear mandates of fairness and due process that the law requires are the faults of judges, just not the Supreme ones.

The passing of Antonin Scalia allows for many things. But we should use this moment to examine our judicial framework.  In so doing, we can see that when a defense attorney sleeps through a trial, there is a local judge who has allowed this to happen, and there are generally a series of appellate judges who find no legal recourse for the client who lacked conscious representation.  The county judge who shifts the burden from the government to the presumptively innocent defendants by setting unattainable bail on far too many defendants, she is the problem, not Scalia.  The judge who twiddles his thumbs while officer after officer testifies to a different reality in court than the one they administer on the streets, he is failing to keep the gate that was constructed by the Supreme Court long ago.

This is not to say that the Supreme Court has not made important criminal justice decisions in recent memory. This is not to say that they will not render important rulings in the future.  However, the Supreme Court is not to blame for our nation owning 25% of the world’s incarcerated population.  The Supreme Court has not presided over the constant stream of trials where the judge might as well be sitting at the prosecution’s table.  The Supreme Court made the Brady rule, but they are not responsible for enforcing it.

Take the Central Park Five case for example. A local criminal court judge sat on the bench and allowed the government to thumb their nose at clearly established rules of fairness and due process.   The Supreme Court has held that for confessions to be admissible, they must be voluntarily given. A judge in a Manhattan court, many, many rungs below the nine Justices in Washington, chose to ignore both precedent and decency and allowed the coerced confessions of those innocent young men to go to the jury.

Whoever is appointed to take the most junior position on the highest of benches, his or her impact might be great. However, that impact will not cure what ails our criminal justice system.  We must forego the notion that police or prosecutors will lead the charge for significant change, especially when they are the ones most central to the problem.  But the judges who sit at the local level and ignore the burden that, in theory and law, should sit squarely upon the shoulders of the government, they are the barriers to the true administration of justice.

In the realm of criminal justice, the Supreme Court has, for the most part, continued to keep the theoretical flames of due process lit. There can be little doubt that the post-Scalia court will continue to uphold the rights that are meant to protect us of everything from illegal searches to unjust convictions.  But for the shouts of those rights to be heard at the lower court levels where they matter most, justices who are anything but Supreme must start listening.  Only then will theoretical fairness finally turn into reality.

6 Comments on this post.

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  • Jason Peterson
    15 February 2016 at 7:36 pm - Reply

    And what do you expect that Jamal, with his GED, can do about this?

    The only people who can change the quality of our judges, are the people who have the necessary credentials to become judges.

  • Eliot clingman
    15 February 2016 at 10:58 pm - Reply

    Why would all local court judges spontaniously rise to a higher level of their duty? That is magical thinking!

    Ultimately “activists” and the press need to inform the public of the due proccess problem, and if the public are sufficiently roused they can force the politicians to make changes, and the judges to tack their sails differently.

    • Ken Womble
      16 February 2016 at 9:54 am - Reply

      “Ultimately “activists” and the press need to inform the public of the due process problem”

      I am no Tom Brokaw, but isn’t this kind of exactly what I have done by writing about this?

      • shg
        16 February 2016 at 9:56 am - Reply

        Then again, Tom Brokaw’s no Ken Womble.

      • dm
        16 February 2016 at 10:14 am - Reply

        Yes, but ultimately it’s going to happen when attorneys feel empowered to speak out about judges who are not judicious. Instead, most attorneys are, rightfully, afraid to speak up pursuant to the threat of bar discipline. The most “wild west” court blog that I’m aware of was JAABLOG. The “chief” of that blog was grieved and ultimately neutered to the point that JAABLOG became practically worthless in calling out injudicious judges. It was sad to witness, but entirely unsurprising.
        Nonetheless, thanks for your efforts Mr. Womble.

      • Eliot Clingman
        16 February 2016 at 1:26 pm - Reply

        I think Ken Womble’s commentary is great as always. The general public needs to be informed, as well as lawyers and judges.

        This takes persistence from lots of people, and over the long term I am an optimist. Balko, the Undisclosed podcast crew, and the Black Lives Matter / Campaign Zero seem to be having a very large effect on public opinion. I think it would be great if Fault Lines became more known, while respecting that is focused on legal audience.