#1: Obviously I teach about some Warren Court decisions in class: Mapp v Ohio (extended exclusionary rule to the states), Gideon v Wainwright (mandated accused be provided counsel in noncapital cases), Brady v. Maryland (prosecutor suppression of evidence favorable to defendant who requested it violates due process), & of course Miranda v Arizona. I’m wondering which Warren Court decisions--perhaps one of these, I'm guessing probably others--you felt were particularly damaging or that you disagree with.  

#2: The crime rates dropped significantly in the early/mid 1990s--why do you think this is?

Asked by: Glenn

Answered: 9/20/2020

 The question takes in too much territory, so I'll ignore the second part of it to try to get it down to more the scale of a "Hey, Bill" question, rather than a book length narrative.   

Suppose that a basketball game was lost by the score of 128 to 16, and at the end of the game you asked the losing coach "What do you think was the key possession there?  Was it that time your point guard was flirting with the cheerleader and dribbled the ball off of his knee?  Was it that time that your center got the rebound and dunked the ball in the wrong basket?  Or was it when your power forward got frustrated with a call and punched out the referee?  What do you think really went wrong here?

A possession in basketball is just a possession; a court decision is just a court decision.  The explosion in the crime rate between 1963 and 1975 was truly a phenomenal thing--like a basketball game that ended 128 to 16.   It wasn't within the normal range of fluctuation or variation in the crime rates, and it did not have any one cause.   I don't have any problem with any one of those decisions, although I'll offer comments on two or three.  

1)  The most consequential court decision of the 20th century, other than perhaps Brown vs. Topeka, was Brady vs. Maryland.   Whereas Brown vs. Topeka was ESSENTIALLY a reversal of course, a reversal of policy (although of course it did build on earlier cases). . .but it was essentially a reversal of course, whereas Brady vs. Maryland was the culmination of a series  of earlier cases.  The High Court had tried to tell prosecutors for several decades that "you need to play fair; you need to play fair; you need to play fair", and finally they said, "OK, that's it.  We're done messing around here."  I'm fine with that--as I am with most if not all of these decisions, in isolation, in and of itself.  

But the effect of Brady vs. Maryland has had an impact on the system that NO ONE foresaw at the time, and which is not wholly beneficial. It added so much weight to the process; it's effect. . ..most of the people reading this won't have any idea what we're talking about, but. . .it added so much weight to the process that it was like making a rule that every document submitted to the court must be carved on a slab of stone.  Trials in the 1930s, the 1940s, into the early 1950s. . . .a person would be arrested, brought to trial days later or weeks later, the matter adjudicated (not sure that is the right word).. .the matter decided, justice or injustice delivered within weeks.  There were people executed weeks after the crime. . .not my idea of a great of system of justice.  40 years later, essentially because of Brady, the same case would lead to months of pre-trial confinement or months of pre-trial maneuvering, long, long trials (and I understand that they are not as long now as they were in the 1970s). . .but just a long, heavy process in which nothing could be dispatched quickly or easily.  It encumbered the process of justice with so much weight that it could no longer function effectively.   The easiest example of that would be the squeegee boys in New York City.   They were petty criminals; they would offer to clean your windshield while you were parked at a stoplight, with an implicit threat that if you didn't pay them a couple of dollars to scrape your windshield with a rubber wedge, they would break out a window or put a knife in your tire, or worse.   And there were hundreds of documented examples in which it was worse.  They were criminals; everybody KNEW they were criminals, but nobody would do anything about it because if the police arrested one of them and sent him a summons, the prosecutor’s office would just drop it because they were weighted down with the million details of an upcoming trial.   

The Supreme Court never intended for that to happen, and there was nothing inevitable about it.  You could have had the Brady decision and had no consequences anything like that, IF the Brady decision had been channeled by subsequent decisions and lower-court decisions toward the situations where it was actually needed, or if, for example, the states had had the foresight to create a "smaller cases" prosecutorial system whose purpose was to deal with the things that the big boys were too busy to deal with. 

But the states really COULDN'T do that, because they were being overwhelmed by a flood of new decisions, new regulations, new policies that washed away 100 years of this-is-the-way-things-are-done around here, and created new--and frankly chaotic--systems of dealing with things.  

2)  The issue with Miranda. .. well, let me back up.   In writing The Man From the Train, which dealt with crimes that occurred from 1898 to 1912, I saw MANY cases in which defendents WERE given, in essence, Miranda warnings.   It was standard practice, in 1910, for police dealing with people suspected of serious crimes to warn them clearly,  sometimes in writing but usually orally, that they had the right to have an attorney present, that they had the right not to answer questions, and that, if they did answer questions, their answers could be used against them in court.   I ASSUME, but I don't know, that there was some higher court ruling before then which required that this be done.   In any case, it WAS commonly BUT NOT ALWAYS done in the 1900-1910 era.  

But there were exceptions.  SOMETIMES it wasn't done.   Over the years, the "sometimes" became more and more frequent.   The intention of the Supreme Court in the Miranda decision was to say that this absolutely, positively HAD to be done; no messing around.  Which is fine. 

As with the Brady decisions, their intentions were good, and there was no inevitable harm that flowed from the Miranda decision.   BUT.   Real harm did follow from the decision, not solely from that decision but (A) from lower court decisions implementing that ruling in heavy-handed and destructive ways, and (B) from the failure to think through the interaction of the Miranda decision with the Exclusionary rule.   England, as you no  doubt know, had long had the equivalent of a Miranda warning, but England has (or had at that time) no Exclusionary Rule.  If a cop misbehaved, the cop could be punished or fired or, in some cases, arrested, but the evidence would not be thrown out.  

The case I would point to, and have pointed to, is the "Onion Field" case.  The murderers in the Onion Field case WERE given access to a lawyer, were clearly informed of their rights, and were not beaten or abused in any manner.  The detectives who interviewed them after they murdered a policeman were friendly, polite, and gave the cigarettes and coffee and candy bars.   There was no legitimate reason to reverse their convictions (although the death penalty was inappropriate for one of the defendants.)  The case was decided years before the Miranda ruling.  Nonetheless, the case was overturned, the confessions thrown out, and the matter was thrown back into a courtroom struggle which lasted more than a decade and consumed many, many thousands of hours of lawyers’ time and judges’ time and court reporters’ time and bailiff’s time and sheriff’s time and sheriff’s deputies time and detectives’ time.  This time swamp left them unable to deal with their law enforcement responsibilities.   There simply were not enough hours in existence for the system to do what needed to be done. 

3)  I can’t tell you any one case which caused the problem, but I can tell you the one case which contributed most toward bringing that to a close.  It is Arizona vs. Fulminante (1991), a case which actually was a defeat for the government, but which established the principle of distinguishing between Harmless Error and Reversible Error. 

In the Warren Court era, essentially ANY flaw in a trial was a fatal flaw, and basically any court decision could be reversed for. . .I shouldn’t say any error, but for a very small error, and an error of no real consequence.  THAT was really the problem.   The rule was, essentially—and I don’t blame the Warren Court for this, because they never made any such ruling—but the de facto rule was that a trial must be perfect, or it could be reversed and a new trial ordered.  It was crazy, frankly.  Cases were retried sometimes five, six, seven times because the appellate courts kept finding small errors in the previous trials.  

But I am not suggesting that Fulminante brought about the lower crime rates of the following years.  There were a lot of things that had to happen for the explosion in crime rates (1963 to 1975) to occur; there were a lot of things that had to happen to turn it around.