In the Summer of 2020, you would have thought that criminal justice and police reform were the most important issues in America. There was even a bipartisan effort in the US Senate to try to find common legislative ground. Oh what a difference a year makes.
Today everything else is more important… From Facebook to Kyrsten Sinema’s wardrobe choices, from Squid Game to infrastructure. Perhaps this is a clue as to why crime control has historically trumped the rights of defendants, and why it has been so hard to legally and legislatively limit the power of law enforcement.
The dean of UC Berkeley’s School of Law, Erwin Chemerinsky — author of Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights — joins us on this week’s WhoWhatWhy podcast to talk about the legal framework behind criminal justice and police reform, and in addition, to remind us why presidents cannot be above the law.
Chemerinsky details the long history of the courts in virtually ignoring the rights of defendants. Often counter to the Fourth Amendment and to the Constitution itself, it is very rare for the courts, either federal or state, to champion defendants’ rights.
Chemerinsky explains why it was only the Warren Court, in the early- to mid-60s, that ever made any real effort to protect those rights. For most of our history, things like the right to remain silent (the Miranda warning) and the right of a suspect to have a lawyer and to be protected from illegal search, were not the norm.
However, even after the Warren Court, under both Democratic and Republican presidents, he argues, courts and legislatures have still acted on behalf of criminal control — and yet none of it has made us more secure.
Chemerinsky reminds us that, even with our longtime emphasis on crime control over criminal rights, we have only 5 percent of the world’s population — and 25 percent of the world’s prisoners.
He chastises his own legal community for ignoring the problem for too long and says that it is only through legislation, on both the state and federal level, that some of these issues can be rectified. Relying on the courts, he says, to protect criminal rights or to hold police accountable has been a fool’s errand.
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(As a service to our readers, we provide transcripts with our podcasts. We try to ensure that these transcripts do not include errors. However, due to a constraint of resources, we are not always able to proofread them as closely as we would like and hope that you will excuse any errors that slipped through.)
Jeff: Welcome to the WhoWhatWhy podcast. I’m your host, Jeff Schechtman. Well, the issue of systemic racism and a long history of racial conflict since our founding certainly occupies a large portion of our social and political landscape. The issue of racial motivation in law enforcement and the problems of police violence directed at people of color holds a unique place. The idea of equal justice under the law is a unique pillar in the American experience.
It is arguably one of the weight-bearing pillars upon which our entire system of law and justice is based. And yet for years, it’s been under siege. Not just on the streets or in the squad rooms but in the courtrooms of our states and even the Supreme Court. How the courts have undermined a foundational tenet of the very existence tells us a lot about how we got where we are today.
We’re going to talk about this with my guest, Erwin Chemerinsky. Erwin Chemerinsky is the Dean of the University of California Berkeley School of Law. He’s the author of the previous books, The Conservative Assault on the Constitution and The Case Against the Supreme Court. He’s a longtime and frequent media voice on a host of legal issues and his newest work is Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights. Erwin, thanks so much for joining us here on the WhoWhatWhy podcast.
Erwin: My pleasure. Thank you for having me on.
Jeff: It’s difficult to understand the present moment without really having a sense, as you outline it, of the history of law enforcement and how it has been able to operate in the past. Give us the broader framework.
Erwin: The constitution was meant to limit the police. The Fourth Amendment limits the police when they stop, or detain, or search people. The Fifth Amendment, that protects the privilege against self-incrimination, is meant to limit police questioning. The requirement of due process is meant to limit how the police do things like identification procedures, such as lineups. And yet for the first century of American history, from 1791, when these provisions were adopted, until really early in the 20th century, there were no Supreme Court cases interpreting or enforcing them, which meant there were no constitutional limits on the police.
And even in the early 20th century, when the Supreme Court began to deal with issues of policing, it ruled in favor of the police time and again, didn’t limit the police, and if you look at the current Supreme Court, you find that same pattern that’s been through American history. It’s a court that time and again sides with the police and refuses to impose constitutional limits. And the thesis of my book is that that’s really what’s contributed to police abuses and racialized policing in the United States.
Jeff: You talk about a period that was really an aberration in our history, and that was some of the rulings from the Warren Court. Talk about those.
Erwin: The only time in history that there’s ever been a liberal Supreme Court was the Warren Court, and especially just between 1962 and1969. Not surprising, that’s also the time at which the Supreme Court handed down the most important rulings in favor of criminal suspects and defendants and against the police. Example, in 1966 in Miranda v. Arizona, the Supreme Court said that police questioning when somebody is in custody is inherently coercive.
And the court said, in order for the police to question somebody in custody, they have to give warnings. And everybody who watches police shows knows the warnings — you have the right to remain silent; anything you say can be used against you; you have the right to a lawyer; if you can’t afford one, one will be provided. In 1963, it was the Warren Court that said anyone being tried for a crime in state court with a possible prison sentence has the right to a lawyer. The government has to pay for one if the person can’t afford it.
Isn’t it amazing that until 1963 somebody could be tried for a state crime in state court, sentenced to life in prison but not to be given a lawyer to the proceedings? In 1961 in Mapp v. Ohio, the Supreme Court said if police violate the Fourth Amendment and engage in illegal search, any evidence gained has to be excluded from coming in the trial. So these are examples of Warren Court decisions.
Jeff: Wasn’t the idea of qualified immunity though for police something that came about during the Warren Court?
Erwin: It’s interesting. Qualified immunity is a concept that I’ve been teaching about for years and now to see it being so much part of our popular discourse — qualified immunity is whenever a government official is sued for money damages, provided in the constitution, the Supreme Court has said there is an immunity defense. Some have absolute immunity; they can’t be sued for money damages it all. Police officers when they testify in court as witnesses can’t be sued for money damages, even if they commit perjury, even if it means an innocent person goes to prison. Prosecutors for their prosecutorial acts, judges for the judicial acts, legislators for the legislative acts, all have absolute immunity.
All other government officials who don’t have absolute immunity — now, what you just referred to, qualified immunity — it means they can be held liable only if they violate clearly established law that the reasonable officer should know. The immunity defenses really developed only in the late ’60s and into the 1970s. And the reason for that is it was in 1961 that the Warren Court expanded the ability to sue government officers who violate the Constitution. And it’s after that that immunity developed, and it grew and grew. So now, qualified immunity often is like absolute immunity. It means people who are injured by police and other governments’ contact can’t recover at all.
Jeff: Talk a little bit about the difference between the way this has evolved in the Supreme Court — what you’ve been touching on — versus what we’ve seen happen in state courts and how those two things have played off against each other.
Erwin: One of the things that’s often forgotten is that state courts, under state constitutions, protect rights even when the Supreme Court refuses to recognize them under the Federal Constitution. Let me give an easy example. The Supreme Court has said there’s no First Amendment right to engage in speech on a privately owned shopping center. So if it’s a private shopping center that wants to exclude the demonstrators, they have the right to do so. But the California Supreme Court said, under the California Constitution, there is a right to engage in speech on privately owned shopping center grounds.
That’s because the state can provide more rights than what the Supreme Court finds in the US Constitution. And there are important instances where state courts have found rights even though there’s no other federal constitution. Let me give you an example with regard to policing. The Supreme Court has said that for police to search somebody’s garbage out on the curb, it doesn’t require a warrant or probable cause, that you don’t have an expectation of privacy for the trash you throw out.
But many state courts, like the Alaska Supreme Court, said under the state constitution, searching somebody’s garbage does require a warrant for probable cause. Or what I regard as an even more important example, the Supreme Court has said if police stop somebody based on a pretext, that they stop them because they find a minor traffic violation, but the real goal is to see if they’ve got drugs, doesn’t matter. It doesn’t violate the Fourth Amendment. And so long as the police see the person violating a traffic law, they can stop them even if it’s just a pretext. But many states like Arkansas and Washington State have said, no, police can’t use a pretext for a stop.
The reason that matters is if the police follow any driver — you, me, any of the listeners — long enough, they’re going to see us violate some traffic law. It’s estimated that all they’ve got to do is on average watch 15 minutes, and they’ll see somebody change lanes without a turn signal, turn without the signal, or go a mile over the speed limit, or not stop long enough at the stop sign. And even if the traffic stop is just a pretext, and they really want to stop us to search a car for drugs, the Supreme Court said it doesn’t violate the Fourth Amendment, but some state courts have said it does violate state constitutions.
Jeff: This is of course how we wound up with stop-and-frisk in some states.
Erwin: Well, we wound up with stop-and-frisk because the Supreme Court in Terry v. Ohio in 1968 said police can stop someone, frisk someone without needing probable cause as a Fourth Amendment would require. And then the Supreme Court said in Rando v. United States in 1996 that it doesn’t matter if the police stop us based on a pretext. So long as they can point to the traffic violation, their real motivation becomes irrelevant.
Jeff: Talk a little bit about why in your view the Supreme Court has been so quick over the years — and over so many different courts, with the exception of the Warren Court, as you’ve talked about — to take these positions. There does seem to be a certain consistency to it, the Warren Court being the exception more than the rule.
Erwin: Some of it is the political ideology of the justices. Some of it is because of larger social pressures. The reality is, except for the Warren Court, we’ve never had a liberal court in American history. And since the Warren Court ended in 1969, we’ve had very conservative courts. The statistic that I find revealing, between 1960 and 2020, is that there were 32 years with a Republican president and 28 years of a Democratic president, almost even; it will be even in 2024. But during that time, Republican presidents appointed 15 justices and Democratic presidents appointed only 8 justices. And conservatives generally tend to be much more pro-law enforcement; liberals are more willing to protect the rights of criminal suspects and defendants. But I think there’s also a larger social pressure that is understood. In our society, the pressure has always been much more for crime control than for protecting the rights of criminal suspects and defendants. That’s why the United States has 5 percent of the world’s population and 25 percent of the world’s prisoners. And I think the justices who live in our society have come to internalize that and very much favor law enforcement over the rights of criminal suspects and criminal defendants.
Interviewer: I guess the question then becomes in that political structure, how we can have both, how law and order, as the public sees it, can coexist with the rights that are granted by the Constitution.
Erwin: I think we have to have both. We have to be safe, and we have to protect the rights of criminal suspects and defendants. It’s why I argue against abolishing the police because any society needs police for the sake of safety. I’m not in any way anti-police. I think often, the steps that are taken for safety don’t make us more secure but do take away rights. Let me give you an example. You mentioned stop-and-frisk. A lawsuit was brought in New York challenging how the New York Police Department was using stop-and-frisk. And the statistics were stunning over a long period of time and how many more Blacks and Latinx individuals were stopped compared to Whites, even though Whites were more likely to have guns or other contraband, and it was clear that this was based on race. Ultimately, the lawsuit settled and the NYPD was no longer allowed to engage in stop-and-frisk. There was no increase in crime in New York after stop-and-frisk was eliminated. So, we were able to better control the police and lessen racialized policing without in any way compromising safety and security.
Interviewer: To what extent do laws have to change in order to rectify some of these excesses that we’ve been talking about?
Erwin: I think the laws do need to change — and we take so many different areas, just ones we’ve touched on, the last change with regard to stop-and-frisk — no longer should the law allow police to stop people based on a pretext. The law needs to change with regard to police questioning to make it less coercive, or an example where I care particularly deeply, we know from the work of the Innocence Projects that many innocent people were wrongly convicted because of false eyewitness identifications.
There are many instances of people who were convicted and then exonerated through DNA evidence, and we learned that their conviction was based on an eyewitness who was mistaken. Yet, since 1986 when the Rehnquist Court began, through today, 35 years, there’s only been one Supreme Court case to even deal with the issue of eyewitness identification, and that one ruled in favor of the police. The court is not dealing with this problem; we need new laws or state courts to deal with it. You talked about qualified immunity, which so often makes it difficult for injured people to recover. The law needs to change on that as well.
Interviewer: To what extent has all of this been a function of the ups and downs of crime rates at various times? We’re seeing it now, we’re seeing this uptick in crime in some cities, and this pushback against criminal justice reform and more liberal attitudes on the part of district attorneys, for example, in places like Los Angeles and San Francisco. Talk a little bit about that and the way in which the law is so tied seemingly to up- and downticks in crime.
Erwin: The justice of the Supreme Court, the judges in the lower courts, live in society. And when crime is perceived as a high and as a salient issue, I think there’s real pressure on courts to empower the police, not to limit the police. And you’re right. When you look at the efforts of more progressive prosecutors — like George Gascón in Los Angeles, Chesa Boudin in San Francisco, and the opposition to them who believe they’re being too liberal — you see this very much playing out, but I think in general, when crime is perceived as more rampant, it’s much harder for courts to be willing to protect the rights of criminal suspects and criminal defendants.
And a very powerful example here is Terry v. Ohio that authorized the police stop-and-frisk was a decision of the Warren Court in 1968. That was the moment when it was the most liberal Supreme Court in history. The majority included liberal lion William Brennan, Thurgood Marshall. Why did the court 8-1 empower the police that way? The year 1968 was a time when crime rates seemed high; there’s great apprehension about crime, where Richard Nixon was running for president on a law-and-order platform, and I think the liberal justice on the court was susceptible to that pressure.
Interviewer: Talk about that, the way in which the law is so susceptible to that pressure. We think of equal justice, we think of the law sometimes as supposedly being immune from that kind of political pressure, but it’s not.
Erwin: The justices and all judges are human beings; they all live in society. They all, then, are aware of social attitudes and social pressures. The Constitution is written in very broad language: It speaks of probable cause; it speaks to searches and seizures; it speaks to the privilege against self-incrimination; it says no cruel and unusual punishment. But, it takes human beings to give meaning to those words and apply them to specific issues. And how the justices do that is so much a product of who they are, their ideology, values, and life experience, and what’s going on in the society around them.
Interviewer: And to that, as the divide becomes wider and wider between states and attitudes of state courts that are reflective to whether they’re in a red or a blue state in the extremes that we’re seeing, it seems that it makes it so much harder to address this on any kind of national basis.
Erwin: I think that’s such a good point. There’s always been differences among the states. And think of early American history, the difference between the slave states and the abolitionist states. That’s a difference that ultimately led to the Civil War. Think of the 1950s and the 1960s, the difference in attitudes towards segregation from the southern states that were fiercely fighting to keep the Jim Crow laws and northern states. And today, we see that over issues like vaccine and mask mandates or just the difference between the red states and the blue states. And so, you’re absolutely right that it’s hard to say there’s a national consensus on any issue when there’s such great divergence on so many, and such divergence among the states.
Interviewer: Historically, when you look at the way the Supreme Court has tried to navigate those differences — in state courts, among the states — is there anything that gives us precedent for trying to square the circle?
Erwin: I think the hope that I get is there’s such intense public pressure, or at least there was last summer to reform police, that it can lead to Congress, and state legislatures, and city councils, and police commissions doing things that state courts can do, things under state constitutions, but the justice department can enforce existing laws that allow it to sue where there’s a pattern and practice of police misconduct. I’m not hopeful that the Supreme Court of the United States is going to put limits on the police. History shows it’s unwilling to do so. But there are other actors in our political system who can do so, who I hope will do so.
Interviewer: So, your view is that it needs to happen legislatively on a state-by-state basis or on a federal basis?
Erwin: Congress can pass laws that oppose police reforms. A bill passed the House but stalled in the Senate. It would have done many things. It would prohibit the police from using the chokehold, a very dangerous form of restraint that killed George Floyd, Eric Garner, and many others. It required that police record the race of the people who they stopped, which, we know, just that has the effect of decreasing racial profiling. It would have changed the standards of qualified immunity that we talked about earlier. And I hope a police reform bill will pass Congress, but state legislators can adopt such reforms for their states, cities can adopt it for their localities, and police commissions can adopt this. Many cities, especially after the death of George Floyd, have prohibited police from choking people. I wish that all cities, states, and Congress would do that as well.
Jeff: Talk a little bit about how the legal community at the highest levels views this — the fact that we can be looking at, it’s an extension of what we were talking about a little while ago, laws that are so different from city to city, from state to state, and what that does, what that makes the legal community think about in terms of how to address all this?
Erwin: I think it’s a really important question. And I fear that my profession, the legal community, my profession more specifically, law professors, haven’t focused nearly enough on these problems. And the reality is, in our society, people of color are much more likely to be targeted by police. The legal profession and the legal academy is overwhelmingly white. And my children when they were teenagers weren’t likely to be stopped by the police in the same way that my black colleague’s children were likely to be stopped by the police. And I fear that that accounts for some of why the legal profession just hasn’t done enough or taken this seriously enough.
Jeff: And I can’t let you go without talking a little bit about the other area that I know you’ve written a lot about and talked a lot about with respect to accountability, and that’s whether our presidents are above the law, and where you think that there will be any kind of accountability in the future for what we’ve been through over the past five years?
Erwin: I think it’s so important that we uphold the rule of law. An essential tenet of the rule of law is that no one, not even the President of the United States, is above the law. And I think what we saw in the last five years was that many of the mechanisms that are supposed to hold presidents accountable don’t do so. Courts are supposed to hold presidents accountable, but lawsuits were filed on January 23, 2017, against President Trump for violating the so-called Emoluments Clause of the Constitution, none of them got resolved, and they got dismissed after he left office in January of 2021. Lawsuits were pending for four years to stop the president from violating the Constitution, and nothing came of them.
Impeachment is supposed to be a way of holding the president accountable, but we saw in the time of partisan division virtually none of the Republicans were ever willing to vote to impeach a Republican president. You can’t sue a president for money damages according to the Supreme Court, absolute immunity. So what are the mechanisms for holding the president accountable? I think we need to focus on this and focus on it in a time like now where we have experience that shows us how crucial it is.
Jeff: But it also shows us that there doesn’t seem to be any accountability and certainly in the political climate that we live in today, the odds are that there won’t be.
Erwin: In one sense, there was political accountability for Donald Trump. He was voted out of office in November of 2020. In another sense, for many people who were injured by his unconstitutional neglect, they didn’t have a remedy available to them.
Jeff: And what do we need to do to address that going forward? Or is there anything we can do?
Erwin: I think there are things that can be done that are important. I think that Congress can pass laws to create much more control and oversight. In the area of the Emoluments Clause, I think Congress can make it very clear that presidents are prohibited from benefiting from foreign countries or from the United States other than their salary while in office. I think some things are much harder to fix. I don’t know how to fix the impeachment and removal process. I think it’s interesting, the Supreme Court has said a president can’t be sued for money damages for anything done in office. I believe that Congress could pass a law that would create such accountability, but it’s uncertain whether it would be constitutional.
Jeff: Erwin Chemerinsky, I thank you so much for spending time with us today.
Erwin: I thank you so much for having me, such a pleasure for me.
Jeff: Thank you. And thank you for listening and joining us here on the WhoWhatWhy podcast. I hope you join us next week for another Radio WhoWhatWhy podcast. I’m Jeff Schechtman. If you like this podcast, please feel free to share and help others find it by rating and reviewing it on iTunes. You can also support this podcast and all the work we do by going to whowhatwhy.org/donate.
