A Few Recent Cases
We will return now to the discussion we set aside after reading Brown v. Mississippi.
“Yes, yes,” one might say, “the criminal justice system is important. As a nation we spend immense sums on police, prosecution, and prisons. And back in 1934, some goons in Mississippi abused criminal defendants, which required intervention by the Supreme Court. What about today?”
This is a fair question; otherwise, we would not have placed it in the mouths of our hypothetical students. We expect that by the end of the semester, few if any students will question whether police and prosecutors still require judicial oversight. The amount and proper form of that oversight will almost surely remain contested—indeed, the Justices themselves contest these issues every year—but the principle is likely to win near unanimous assent. To assuage skepticism without delay, however, we will present some evidence now.
In 2013, the State of California freed Kash Delano Register, whom the state had imprisoned for 34 years for a murder he did not commit.12 Mr. Register had been convicted on the basis of false identification testimony, and the lawyers who won his release produced proof that police and prosecutors had concealed from Register’s trial defense team evidence of his innocence, including reports of eyewitnesses who would have contradicted the testimony of prosecution witnesses, along with evidence of how police had used threats of unrelated criminal prosecution to pressure the witnesses against Register. Absent the work of students and faculty at Loyola Law School in Los Angeles, Register might remain incarcerated today. Prosecutors opposed his release until 2013. In 2016, the Los Angeles City Council approved a $16.7 million settlement payment to Register.13 The city has paid tens of millions of dollars in other recent settlements related to police conduct.14
In 2012, the State of Missouri released George Allen, Jr., whom the state had imprisoned for 30 years for a St. Louis rape and murder he did not commit.15 Although prosecutors could not explain how Allen could have travelled from his University City home to the murder scene—St. Louis was paralyzed that day by a 20-inch snowstorm—a jury eventually convicted Allen on the basis of his confession. Decades after his conviction, new lawyers for Allen—from the Bryan Cave law firm and the Innocence Project—produced evidence that police had elicited a false confession from Allen, who was mentally ill. Missouri courts found that prosecutors withheld exculpatory evidence, including lab results, fingerprint records, and information about bizarre interrogation tactics such as hypnosis of a key witness. Allen died in 2016, and the City of St. Louis and Allen’s family settled his civil rights lawsuit in 2018 for $14 million.
The National Registry of Exonerations, maintained by the University of Michigan, lists 2,253 exonerations, representing “more than 19,790 years lost.”16 Because it covers only exonerations, it does not include cases in which misconduct is uncovered in time to prevent a wrongful conviction.
In 2015, the Wall Street Journal reported that America’s “10 cities with the largest police departments paid out $248.7 million” in 2014 in settlements and court judgements in police misconduct cases.17 Students should keep in mind that because so much misconduct cannot be remedied through monetary damages, numbers likes these understate the problem.
Chicago has settled several multi-million-dollar cases in recent years. Examples include: “A one-time death row inmate brutally beaten by police: $6.1 million. An unarmed man fatally shot by an officer as he lay on the ground: $4.1 million.”18 Another involved an officer who “posted messages on his Facebook page falsely calling [a] teen a drug dealer and criminal” and officers handcuffing this same teen without cause. (Settlement around $500,000.) More recent cases include “a police officer [who] pointed a gun at [the plaintiff’s] 3-year-old daughter’s chest during a 2013 raid of the family’s Chicago home” and a man who spent about 20 years in prison after being framed.19
As the Baltimore Sun noted—in its 2014 report of how the “city has paid about $5.7 million since 2011 over lawsuits claiming that police officers brazenly beat up alleged suspects”—the “perception that officers are violent can poison the relationship between residents and police.”20 The newspaper observed:
“Over … four years, more than 100 people have won court judgments or settlements related to allegations of brutality and civil rights violations. Victims include a 15-year-old boy riding a dirt bike, a 26-year-old pregnant accountant who had witnessed a beating, a 50-year-old woman selling church raffle tickets, a 65-year-old church deacon rolling a cigarette and an 87-year-old grandmother aiding her wounded grandson.”
In multiple jurisdictions, class action lawsuits about unlawful strip searches have yielded large payments. In 2010, the Cook County (Illinois) Board of Commissioners agreed to a $55 million settlement with suspects stripped-searched at Cook County Jail. New York City reached a $50 million settlement in 2001 and another one for $33 million in 2010, both related to searches in city jails such as Rikers Island. Similar settlements (for smaller amounts) have been reached in places such as Kern County, California; Burlington County, New Jersey; and Washington, D.C.. Massachusetts officials settled a suit concerning the Western Massachusetts Regional Women’s Correctional Center, agreeing to prohibit male guards from continuing their practice of videotaping the strip searches of female inmates.
Less sensational issues (nonetheless important to those involved) include the ongoing debate over “stop-and-frisk” tactics nationwide, in addition to racial profiling of motorists. These practices affect persons whose involvement with the criminal justice system might otherwise be fairly minimal. In New York City, a federal court found that NYPD officers violated the Fourth Amendment by performing unreasonable searches and seizures and further found that police violated the Equal Protection Clause of Fourteenth Amendment by stopping and frisking New Yorkers in a racially discriminatory manner.21 In Missouri, annual reports by the Attorney General regularly find racial disparities in vehicle stops.22 According to the 2017 report, black motorists were far more likely to be stopped, despite police finding contraband less often when stopping black motorists than when stopping white motorists. “African-Americans represent 10.9% of the driving-age population but 18.7% of all traffic stops …. The contraband hit rate for whites was 35.5%, compared with 32.9% for blacks and 27.9% for Hispanics. This means that, on average, searches of African-Americans and Hispanics are less likely than searches of whites to result in the discovery of contraband.”
In sum, the incidence of police and prosecutorial misconduct is not limited to dusty case files from the old Confederacy.
Meanwhile, crime remains a serious problem, one America has struggled with since colonial times. Since the 1800s, the United States has had a much higher murder rate than European countries otherwise similar to us in measures of economic power and educational attainment. Then, beginning around 1965, the U.S. homicide rate increased dramatically.23 Although the increase was not uniform (different decades saw different trends, and different locations experienced trends differently), the United States as a whole suffered a big increase in crime from the mid-1960s through the early-1990s, with the nationwide homicide rate peaking at around 10 per 100,000 persons. Since then, crime has dropped significantly, returning over twenty years to what was observed in the early 1960s.24 By 2000, the homicide rate had dropped to around 5.5 per 100,000, which is close to the current rate.25 In other words, American crime rates remain well above those of Western Europe, Canada, and Australia, but they are far better than American rates of a generation ago. The sharp increase in crime between the 1960s and 1990s may explain in part the rapid increase in American incarceration, as politicians offered “tough-on-crime” solutions. The causes of the huge increase in crime beginning around 1965, as well as of the subsequent decrease, are hotly disputed.26 In any event, crime remains an important political and social issue in America. Court decisions about how police may behave will be better understood if given broader social context. For example, judicial decisions that prevent the convictions of undisputedly guilty defendants may be unpopular among voters, and voters elect the politicians who appoint and confirm Supreme Court Justices. Further, Justices may recognize their relative lack of expertise in the fields of policing and criminology, and they may hesitate to mandate practices (or to prohibit practices) without thoughtfully considering how their decisions could affect ongoing national efforts to fight crime. The debate over how much the Court should meddle in the affairs of police departments is a thread that runs through the course material.