by Shayok Chakraborty

“Who are we, as Americans – citizens of a democracy, or subjects to a ‘carceral state’?”

This was the question that Justice Sonia Sotomayor posed in her fiery dissent to the Supreme Court ruling on Utah v. Strieff, in which constitutional protections against illegal police searches were weakened. The Supreme Court has effectively declared that police can stop and search citizens without probable cause so long as they find a warrant on their record, even if that warrant is for innocuous violations such as a minor traffic violation, drinking from an open container, or farebeating. This clearly violates the “exclusionary principle,” a provision that excludes evidence police find in illegal searches and stops which deters police from overstepping their authority and violating the citizen’s privacy based on a hunch. Not only are these sorts of Supreme Court decisions harmful to our ability to live free of government oppression, but they also disproportionately affect low income black and brown Americans. As a result, they are even more likely to be stopped, frisked, searched, arrested, and generally policed, often for misdemeanors and drug possession. The recent Utah v. Strieff ruling acts to retroactively forgives unlawful stops by police if the officer finds a warrant on the suspect, drastically weakening legal deterrence against such illegitimate stops. When viewed in the context of race, the ruling it gives free rein for officers to racially profile and unlawfully search citizens regardless of probable cause. While we should be aiming to protect our citizens from abuse by overzealous law enforcement, our Supreme Court is busy making those protections weaker.

When viewed in the context of race, the ruling it gives free rein for officers to racially profile and unlawfully search citizens regardless of probable cause.

This is not the first assault on our protections against abusive policing by the Supreme Court, however, but rather a continuation of a broader trend. First, we must discuss the Warren court of the 1960s, famously liberal on many civil rights and civil liberties issues. The Warren Court established some of the first major protections for the accused in criminal cases in the so-called “due process revolution,” using the law to police the police where they had not before. Gideon v. Wainright (1963) established the right to legal counsel; Escobedo v. Illinois (1964) entitled a suspect to confer with an attorney as soon as an investigation shifted from investigatory to accusatory; and the famous Miranda v. Arizona (1966) established that police must read suspects their legal rights (now colloquially known as “Miranda rights”) before questioning.

The exclusionary principle, however, was established in Mapp v. Ohio (1961), in which the Supreme Court used the Fourth Amendment to rule that illegally procured evidence could not be used in criminal cases, as such evidence was derived from “unreasonable searches and seizures.” Critics of these protections claim that “if you have nothing to hide, you have nothing to fear” from any police search, constitutional or not, but that view is much too trusting of law enforcement in America. Not only should we have a natural suspicion of those with power, but we should remember that the history of policing in America has been marred by a troubled and oppressive relationship with Americans of color. Protections are needed then, because when police “take the law into their own hands” and act illegally or without reasonable suspicion, too often we hear about Eric Garners and Sandra Blands, not exactly the “heroic vigilante cop” stories we see on TV.

Not only should we have a natural suspicion of those with power, but we should remember that the history of policing in America has been marred by a troubled and oppressive relationship with Americans of color.

These are precisely the protections that began to erode beginning in the 1970s. The Warren Court and the generally liberal era of the 1960s gave way to a conservative backlash that has been slowly rolling back the due process revolution ever since. In 1984, the first chipping away to the exclusionary principle began, particularly in United States v. Leon which held that evidence procured in an illegal search can still be used if the officers were acting “in good faith.” In other words, if the officers apply for a warrant and a judge issues it, the evidence produced from that search would still be usable even if it was later found that the warrant had no “probable cause.” This is a dangerous loophole considering that “good faith” is a rather subjective and nebulous criteria to fill. Therefore, it is relatively easy for a criminal justice system that consistently favors police to let them off with minimal consequences. In 1990, the Supreme Court ruled that police could stop and search vehicles without a warrant. In 2001, in Atwater v. City of Lago Vista, the court went farther and ruled that police could arrest people for minor criminal or traffic offenses without a warrant for their arrest – the case in question was over the arrest of a person who was not wearing a seatbelt, which is at most a $50 fine.

Racial justice advocates and liberals need not be the only ones who care about this trend, however – conservatives and libertarians should care too, as this is clearly an issue of government overreach.

What we see, then, is that the Supreme Court has been slowly broadening policing powers at the expense of the rights of the accused, and that Utah v. Strieff is merely the latest incarnation of that trend. Those who guide us down this path implicitly assume that the police can always be trusted, that the laws they enforce are always right, while our racial history shows that this is quite obviously not true. Racial justice advocates and liberals need not be the only ones who care about this trend, however – conservatives and libertarians should care too, as this is clearly an issue of government overreach in policing. With Supreme Court nominee Merrick Garland unlikely to be confirmed any time soon, it is imperative that the next president appoint a justice whose sympathies are with the powerless on this case, and others. If this remains unaccomplished, then at least on the issue of criminal justice, the Supreme Court will continue to be a force primarily for the carceral state, not for democracy.

Shayok Chakraborty is a sophomore at Pomona College in Claremont, California. He is from Los Angeles, California and plans to major in Public Policy Analysis. He also writes for Claremont Radius.

The views expressed in this article are those of the writer, The Contemporary takes no position on matters of policy or opinion.