Empathy. Back in 1996, Justice David Souter authored the opinion in Whren v. United States, upholding the power of a police officer to make a traffic stop as long as the officer observed a violation, even if he had an ulterior motive for the stop. And so we have the police stopping cars for all sorts of bullshit violations - failing to signal before changing lanes is a favorite - so they can see if they can come up with something that will allow them to search the car or the driver or passengers. Of course, neither Souter nor the other justices who joined the opinion had to worry about that.
A few years ago, Justice Samuel Alito authored the opinion in Kentucky v. King, upholding the authority of the police to conduct the "knock and talk," knocking on a tenant's door, and then bursting in if they heard something they believed was the tenants trying to dispose of drugs. Of course, neither Alito nor the other justices lived in the projects, where that routine had become commonplace.
On the other hand, probably the key moment in the oral argument in United States v. Jones, the case in which the Supreme Court held that a warrant was required to put a GPS on a car, was when Chief Justice Roberts elicited an affirmative answer to the government to this question:
You think there would also not be a search if you put a GPS device on all of our cars, monitored our movements for a month?
Supreme Court justices rarely come from an environment that allows them to see - or suffer from - the real-world effects of their decisions. A GPS on their cars? Well, that's something they could relate to.
We discussed Utah v. Strieff yesterday. The detective had stopped Strieff without any legal basis to do so, but his subsequent discovery of drugs on Strieff was excused because Strieff had an outstanding warrant for failing to pay a traffic ticket. Justice Thomas, who grew up in an environment where that sort of thing happened to people like him, has long forgotten that.
Justice Sotomayor, who also grew up in that kind of environment, hasn't. She penned a dissent criticizing the majority's reasoning, but what got the most attention was part IV of her opinion, where she talked about the actual experience of being stopped, and "how degrading a stop can be when the officer is looking for more." After cataloguing how "this Court has given officers an array of instruments to probe and examine you," she notes how even the Justice Department concedes that "many innocent people are subjected to the humiliations of these unconstitutional searches." While Strieff was white, "it is no secret that people of color are disproportionate victims of this type of scrutiny."
We must not pretend that the countless people who are routinely targeted by police are "isolated." They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. They are the ones who recognize that unlawful lpolice stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.
No one joined that portion of her opinion.
Death Penalty News. If Georgia stops executing people, it won't be because they decided not, it will be because they're run out of people to execute. As this article (h/t to SL&P) notes, no jury has sentenced anyone to death in the state since 2014. The message hasn't been lost on prosecutors; while 10 years ago they sought the death penalty in 34 cases, last year the number dwindled to 13, and so far this year prosecutors have indicted only one defendant - he'd killed a priest - on capital specs.
But that hasn't stopped Georgia from trying to get rid of its inventory: it's killed five people in each of the last two years, and if it executes one more this year, that'll be the most who've been put to death since capital punishment was reinstated 40 years ago.
Second thoughts. A couple weeks back, I joined the dogpile on Aaron Persky, the judge who handed down a six-month jail sentence for convicted rapist Brock Turner, because he wanted to spare Turner the "severe impact" a prison sentence would have on him. It's a big dogpile; over a million people have signed petitions demanding Persky's recall.
On the other hand, I remember what one speaker at a habeas seminar I attended a few years back said on the death penalty: "When judges are elected, people die." No judge ever lost an election by being too hard on crime.
Some of them are legitimately hard: they think people should be punished severely for committing crimes. But some of them do it because they think that's the best way to stay in office.
A couple of stories.
A few years back, a friend of mine had a case, a particularly nasty aggravated vehicular homicide. He'd told me a couple days before sentencing that the judge had agreed to give his client ten years. Then I read in the paper that the client had gotten twenty years. "What happened?" I asked.
"I got camera'd. The judge comes out on the bench and there are like five TV cameras in the jury box." And that was that.
Story #2. Quite a while ago, a common pleas judge here, now dead a number of years, ran for the court of appeals. One of his ads showed him standing in front of a jail cell with a particularly scruffy individual - blessedly white - standing behind him, while the judge intoned that he'd make sure people like that stay behind bars. Just before that campaign, I'd had a child abuse case with him. And it was a nasty case: the couple had thrown the kid in the closet at one point and poured bleach on her. The judge didn't know the case, and he didn't care, so he agreed to a low-level felony plea and probation. The probation officer came up the day of the sentencing to argue that the couple should be sent to prison. Probation the judge had promised, probation he gave.
I'm guessing that story would have ended differently if it had been a reporter and a news cameramen who'd been sent up, instead of the probation officer.
I disagree with the sentence Persky gave, but as a defense lawyer, I've got some real problems with the idea that a judge should lose his job over giving too lenient a sentence.