Thousands of Americans have protested in recent weeks, outraged at repeated and brazen displays of police violence. While the brutality against black people and protesters of all races has rightly been the focus of their anger, the twin institutions of policing and mass incarceration impose other grave, often-overlooked costs on black communities. These costs come in the form of diminished constitutional rights. Because courts do not want to interfere with the machinery of these institutions, they have narrowly defined many core constitutional rights to allow the carceral system to function efficiently.
Very few, if any, constitutional rights are absolute. The First Amendment prohibits laws abridging freedom of speech, and yet the government can arrest you for falsely shouting “Fire!” in a crowded theater, because it has a legitimate interest in preventing an unnecessary and dangerous stampede. Other constitutional rights are subject to similar limitations when the government can offer a sufficient justification.
However, in criminal law, courts have repeatedly narrowed the scope of the Constitution's protections over the past 50 years—the time period coinciding with the rise of mass incarceration—without requiring the government to prove that these limitations are justified. This deference to the government has allowed the carceral system to expand unchecked while over-policed and over-incarcerated communities incur extraordinary constitutional costs, in addition to the more familiar human, social, and economic ones.
This submission is most egregious with regard to the Fourth, Fifth, and Sixth Amendments—the parts of the Constitution that govern the basic rules by which law-enforcement officers must operate.
Start with the Fourth Amendment’s prohibition of “unreasonable” use of force by police officers. The Supreme Court has narrowed the scope of this protection by determining that claims of excessive force must be evaluated “from the perspective of a reasonable officer on the scene” (emphasis my own). The Court has also said that the use of force may not have been unreasonable “even if it may later seem unnecessary in the peace of a judge’s chambers.”
Rather than setting clear boundaries within which law-enforcement officers must act, the Supreme Court has thus decided that the protective scope of the Fourth Amendment depends on what law-enforcement officers themselves find reasonable, and that lower courts should not trust their own judgment to determine whether use of force is excessive. It’s as though the Court has taken Chief Justice John Roberts’s famous quip that it’s the judiciary’s job to call “balls and strikes,” and granted the pitchers a strike zone twice as large as normal without so much as asking why.
Perhaps, then, it’s little surprise that so many police officers have become so callous and indifferent to use of force that they feel comfortable brutalizing protesters and journalists live on camera. Not to mention the nearly 1,000 police killings every year—the highest rate and total in the developed world by an order of magnitude; the constitutional landscape developed by the courts has largely permitted this kind of violence whenever police officers can offer even the thinnest justification.
The Court has extended similarly extreme deference to law-enforcement officers in other Fourth Amendment contexts. For example, the Court has consistently held that as long as a police officer has “probable cause” to believe that a person has violated any one of the thousands of criminal offenses that govern Americans’ lives, the officer’s motivations are immaterial to the constitutionality of the stop. In doing so, the Court declared ongoing, incessant police harassment, no matter how extreme, of communities of color for loitering, failing to use turn signals, “drifting” across lane markings on the highway, using vehicle air fresheners, and other extremely minor offenses to be “reasonable” under the Fourth Amendment. The Court has also determined that the Constitution permits police officers a nearly unlimited arrest power, because they may arrest and jail a person for committing any misdemeanor offense, even if it is punishable only by a fine.
The Sixth Amendment is what guarantees the right to defense counsel in all criminal prosecutions, and it too has been all but eviscerated by the Supreme Court. Courts have limited the right to counsel for defendants who may face years in prison for parole or probation violations. The Supreme Court has determined that some of these defendants, the incarceration of whom is a major driver of prison-population growth, have no right to counsel because it would impose “direct costs” and “collateral disadvantages” on the carceral system.
Here, the stated reason is that interpreting the right more robustly—granting counsel to criminal defendants when they truly need it—would introduce serious, perhaps fatal, inefficiency into a system that seeks to arrest, process, and charge 10 million people every year and holds another 4.5 million in criminal supervision. For similar reasons, the Court has also determined that, despite the Sixth Amendment’s explicit right to a jury trial in “all criminal prosecutions,” only defendants facing an individual crime punishable by six months in jail or more have the right to a trial by jury, even if the cumulative punishment of all crimes charged is greater than six months.
In a trio of cases, the Supreme Court also held that criminal defendants can waive their Fifth Amendment rights to counsel (which is different from that afforded by the Sixth Amendment) and to remain silent without ever speaking with an attorney—even if they had previously asked for one, one had been appointed for them, or their attorney is attempting to contact them. This opened the door for savvy law-enforcement officers to coax and cajole defendants into waiving these rights, a decision that could haunt them for the rest of their life. While the Court theoretically protects against this behavior by requiring that the waiver be “voluntary, knowing, and intelligent,” that’s not what typically plays out in reality. On the contrary, law-enforcement officers are trained to effectively and consistently persuade defendants, nearly all of whom are indigent and terrified, to waive their rights. In each of these cases, the Court justified its conclusion by emphasizing the “substantial costs” of enforcing a right to counsel: “society’s compelling interest in finding, convicting, and punishing those who violate the law.”
To make matters worse, the Court-invented doctrine of qualified immunity, originally invoked to protect police officers who were enforcing segregation from a lawsuit seeking damages for violations of the Constitution, has consistently been used to effectively limit these rights even further, by preventing victims of police misconduct from bringing suit. The doctrine has led to absurd outcomes, including grants of qualified immunity to an officer who broke a woman’s collarbone and knocked her unconscious because she walked away from him when he told her not to, and to officers who stole $225,000 while executing a search warrant.
But courts have rarely taken a moment to consider whether limiting these rights is justified. The scale of America’s carceral system requires weakening constitutional protections in order to function. The resulting direct costs and collateral disadvantages are experienced almost entirely by communities of color. In the vanishingly few instances when a court has considered these costs and disadvantages, it has assumed, without asking for proof, that they are necessary for public safety and accountability, and that that’s reason enough to limit them.
For example, consider the “lawful but awful” shootings plaguing black communities across the country. If public safety requires a police force that is given carte blanche to brutalize its citizens, the government should have to state so on the record and defend its reasoning.
As militaristic policing, mass incarceration, and their attendant collateral costs—police violence, fiscal expenses, unstable neighborhoods and social ties, increased criminality, economic losses, and human misery—are finally emerging as direct consequences of the Supreme Court’s limiting of constitutional rights in deference to law enforcement, courts should begin to revisit and rebalance these precedents. That providing an attorney or a jury trial for the millions of people the carceral system seeks to churn through its grip would be expensive cannot justify disposing of these rights. That policing can be dangerous for police officers cannot justify allowing officers themselves to dispense violence at the slightest threat. Courts must stop permitting municipalities to hide the costs of policing by levying them upon black communities instead of upon police departments and city budgets. Before limiting a constitutional right in favor of law enforcement, courts should require the government to prove both that it has a really good reason for doing so and that its proposed conduct is the best way of achieving its goal, just as it must with other rights. If courts force law-enforcement actors to operate within the same constitutional limits as everyone else, the economic costs of the system will quickly reveal just how urgently an alternative is needed.
As it stands, these law-enforcement-driven limitations on our constitutional rights illuminate why merely reforming police behavior to limit police violence is insufficient. Were policing and incarceration unquestionably the best, or the only, way for a society to respond to criminal activity, it could be tempting to grant serious leeway to law-enforcement officers who advocate for narrow constitutional rights. But organizers, advocates, and academics have by and large concluded that much, if not all, of the carceral system is counterproductive. Courts must stop giving free rein to those who seek to limit constitutional freedoms in service of the carceral system.
The stakes of constitutional law in the context of criminal law couldn’t be higher. It is not merely a freedom to speak or assemble that is at risk; it is freedom, period.