A Tiny but Very Articulate Cog in America's Vast Criminal Injustice System

tomdispatch |  One day recently, I was getting ready to hit the Oakland streets in search of a witness to a murder when I found in my email Justice Sonia Sotomayor'sdissent in the Supreme Court Case of Utah v. Strieff.  It had been forwarded to me by a psychologist with whom I once worked on a death penalty case.

Anyone lulled into thinking the new coalition of liberals and conservatives who hope to reform the criminal justice system will actually get somewhere should read Strieff. The facts are the following: a Salt Lake City cop was watching a home rumored to house methamphetamine dealers. When Edward Joseph Strieff left the house, the cop stopped him, questioned him, and checked his record. When the cop found a warrant for an unpaid parking ticket, he searched Strieff, found meth in his pockets, and arrested him for possession of drugs.  In Strieff and other cases leading up to it, the Supreme Court has now decreed that evidence gathered in an illegal search isn’t "the fruit of the poisoned tree" as Justice Felix Frankfurter put it in 1939, and so no longer must be suppressed. Even though gathered illegally, evidence can be used at trial against a defendant.

In short, stop-and-frisk policing and racial profiling, key targets of the new civil rights movement, just got a stamp of approval from the highest court in the land.

Justices Ruth Bader Ginsburg and Elena Kagan also dissented. But it was Sotomayor who sounded the alarm in an opinion evoking nothing less than James Baldwin's The Fire Next Time and adding quotations from W.E.B. Du Bois, Ta-Nehisi Coates, and Michelle Alexander for good measure.

She wrote:

"The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s technical language: this case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic war­rants -- even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arrest­ing you on the warrant. Because the Fourth Amendment should prohibit, not permit, such misconduct, I dissent."

And she concluded:

"This case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be catalogued.

“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."

Sotomayor's dissent describes daily existence for my defendants. Too poor to buy car insurance, fix broken tail lights, pay parking tickets, or get green cards, they are always on high alert for the police. (Alice Goffman's brilliant study, On the Run: Fugitive Life in an American City, describes just how it works in one of Philadelphia's poorest neighborhoods). My defendants have been sentenced to life in a war zone even before they find themselves charged in court. They have been sentenced to a life without parole or sometimes to death, caught as they are in a crossfire between cops and warring neighborhood gangstas.

A warrant for, say, unpaid parking tickets discovered in a Strieff-approved stop gets you a search of yourself and your car by police and maybe a bust for weed, the intoxicant of choice for many of the poor. If you object or run or the arresting officer is having a bad day, it may get you dead. (Refusing to pay protection money to your neighborhood punks or standing on the wrong corner at the wrong time may do the same.)

Once you're arrested, if you say you want a lawyer, you get a public defender with so many cases she or he may not even be able to meet you or read the complaint against you before you appear in court. You may serve weeks or months in jail, even if you're innocent, before your case is heard, and years before you are tried.