Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights

by Erwin Chemerinsky

Overview

An unprecedented work of civil rights and legal history, Presumed Guilty reveals how the Supreme Court has enabled racist policing and sanctioned law enforcement excesses through its decisions over the last half-century.

Police are nine times more likely to kill African-American men than they are other Americans—in fact, nearly one in every thousand will die at the hands, or under the knee, of an officer. As eminent constitutional scholar Erwin Chemerinsky powerfully argues, this is no accident, but the horrific result of an elaborate body of doctrines that allow the police and, crucially, the courts to presume that suspects—especially people of color—are guilty before being charged.

Today in the United States, much attention is focused on the enormous problems of police violence and racism in law enforcement. Too often, though, that attention fails to place the blame where it most belongs, on the courts, and specifically, on the Supreme Court. A “smoking gun” of civil rights research, Presumed Guilty presents a groundbreaking, decades-long history of judicial failure in America, revealing how the Supreme Court has enabled racist practices, including profiling and intimidation, and legitimated gross law enforcement excesses that disproportionately affect people of color.

For the greater part of its existence, Chemerinsky shows, deference to and empowerment of the police have been the modi operandi of the Supreme Court. From its conception in the late eighteenth century until the Warren Court in 1953, the Supreme Court rarely ruled against the police, and then only when police conduct was truly shocking. Animating seminal cases and justices from the Court’s history, Chemerinsky—who has himself litigated cases dealing with police misconduct for decades—shows how the Court has time and again refused to impose constitutional checks on police, all the while deliberately gutting remedies Americans might use to challenge police misconduct.

Finally, in an unprecedented series of landmark rulings in the mid-1950s and 1960s, the pro-defendant Warren Court imposed significant constitutional limits on policing. Yet as Chemerinsky demonstrates, the Warren Court was but a brief historical aberration, a fleeting liberal era that ultimately concluded with Nixon’s presidency and the ascendance of conservative and “originalist” justices, whose rulings—in Terry v. Ohio (1968), City of Los Angeles v. Lyons (1983), and Whren v. United States (1996), among other cases—have sanctioned stop-and-frisks, limited suits to reform police departments, and even abetted the use of lethal chokeholds.

Written with a lawyer’s knowledge and experience, Presumed Guilty definitively proves that an approach to policing that continues to exalt “Dirty Harry” can be transformed only by a robust court system committed to civil rights. In the tradition of Richard Rothstein’s The Color of Law, Presumed Guilty is a necessary intervention into the roiling national debates over racial inequality and reform, creating a history where none was before—and promising to transform our understanding of the systems that enable police brutality.

Product Details

ISBN-13:	9781324091974
Publisher:	Liveright Publishing Corporation
Publication date:	08/09/2022
Pages:	384
Sales rank:	395,930
Product dimensions:	5.40(w) x 8.10(h) x 1.10(d)

About the Author

Erwin Chemerinsky is the dean of the University of California, Berkeley, School of Law. The author of Presumed Guilty, The Conservative Assault on the Constitution, and The Case Against the Supreme Court, among many other works, he lives in Oakland, California.

Table of Contents

Preface xi

Part I The Supreme Court, Race, and Policing

1 "I Can't Breathe" Why Courts Can't Stop Police from Using Chokeholds 3

2 Confronting the Realities of Race and Policing 17

3 The Supreme Court's Essential Role in Enforcing the Constitution and Controlling Police 23

Part II A Minimal Judicial Role

The Court and Policing Before 1953

4 Why the Supreme Court Ignored Policing for Much of American History 39

5 Judicial Silence on Constitutional Protections and Remedies Before 1953 59

Part III The Warren Court

Finally Enforcing Constitutional Protections and Remedies

6 "Each Era Finds an Improvement in Law for the Benefit of Mankind" Applying the Bill of Rights to State and Local Police 83

7 Both Limiting and Empowering Police The Warren Court and the Fourth Amendment 101

8 Miranda Trying to Solve the Problem of Coercion in Police Interrogations 117

9 Protecting the Innocent from Wrongful Convictions Safeguards Against False Eyewitness Identifications 125

10 Rights Need Remedies 131

Part IV Retrenchment

The Burger Court Limits Constitutional Rights

11 "Only the Guilty Have Something to Hide" Undermining Fourth Amendment Protections 141

12 Hollowing Out Miranda 168

13 Refusing to Check Police Eyewitness Identification Procedures 174

14 Eroding Remedies for Police Misconduct 184

Part V Empowering Police

The Rehnquist and Roberts Courts

15 The Police Can Stop Anyone, at Any Time, and Search Them 209

16 You Don't Really Have the Right to Remain Silent 231

17 Ignoring the Problem of False Eyewitness Identifications 239

18 The Vanishing Remedies for Police Misconduct 243

Part VI It Can Be Done

Overcoming the Supreme Court to Reform Policing

19 The Path to Meaningful Police Reform 275

Acknowiedgments 309

Notes 311

Index 345

Editorial Reviews

"Opens our eyes to a critical reason that we continue to have problems of police violence and racism in law enforcement... Chemerinsky masterfully presents his arguments by tying together current events with major Supreme Court decisions that laid the foundation for those conflicts... My criminal procedure students know this to be true. They read another book written by Chemerinsky and his co-author that goes through the cases. In the future, they may be assigned this one as well... Years from now, Americans may ask, “Did anyone stand up to the Supreme Court and pull back the curtain?” The answer will be “Yes.” Chemerinsky did just that. Now, it is time for all of us to take a good look."

Los Angeles Review of Books - Laurie L. Levenson

"One of the foremost U.S. Constitutional scholars and Supreme Court analysts, Chemerinsky (dean, Univ. of California, Berkeley, Sch. of Law; The Conservative Assault on the Constitution) cogently demonstrates in this book that the court bears much of the blame for police violence and racism in U.S. law enforcement.... An insightful primer for understanding the judicial decisions that support the United States’ prevailing authoritarian, paramilitary, racist approach to policing.... A thoughtful, provocative, and instructive must-read for anyone concerned with justice and domestic tranquility."

Thomas J. Davis

"Stunning... Chemerinsky presents a damning indictment of the Supreme Court... As Chemerinsky declares, the court’s record 'from 1986 through the present and likely for years to come, can easily be summarized: ‘The police almost always win....' Aside from the fact that he writes well, Chemerinsky... is also an experienced advocate, having appeared before the court on many occasions, and also having served as a consultant to those police forces who either by choice or necessity have tried to overhaul their practices. He bolsters his argument with examples from his own experiences, and his telling of the cases always starts with the people involved... Chemerinsky details a number of ways state and local governments can and should reform police procedures without having to go to court. Whether the furor unleashed by Black Lives Matter will lead to state and city governments reforming their police departments is yet to be seen, but all lawmakers, in fact all concerned citizens, need to read this book. It is an eloquent and damning indictment not only of horrific police practices, but also of the justices who condoned them and continue to do so."

Melvin I. Urofsky

06/07/2021

UC Berkeley law school dean Chemerinsky (We the People) delivers a sharp and timely critique of the Supreme Court for “favor the interests of law enforcement over the rights of individuals.” By undermining constitutional protections against self-incrimination and unreasonable government searches and seizures, Chemerinsky argues, the court has helped create a racist criminal justice system that fails to hold police accountable for their misconduct. He delves into the 1968 Terry v. Ohio decision that facilitated New York City’s controversial “stop-and-frisk” policy, as well as more technical rulings based on esoteric concepts such as “standing,” which has been applied by the court to limit the rights of victims of police misconduct to sue to prevent future misconduct. Other enlightening case studies include Harlow v. Fitzgerald (1982), which revised the legal standard for “qualified immunity,” making it more difficult, according to Chemerinsky, to hold police officers responsible for excessive use of force and other civil rights violations. His suggestions for reform include bans on “no-knock” warrants and other dangerous police practices, and a federal law mandating that police departments “record and report all uses of force.” Lucid explanations of constitutional law and Chemerinsky’s deep knowledge of the Supreme Court’s inner workings make this an essential contribution to the debate over police reform. (Aug.)

Publishers Weekly

★ 08/01/2021

One of the foremost U.S. Constitutional scholars and Supreme Court analysts, Chemerinsky (dean, Univ. of California, Berkeley, Sch. of Law; The Conservative Assault on the Constitution), cogently demonstrates in this book that the court bears much of the blame for police violence and racism in U.S. law enforcement. Moving case by case and issue by issue through 19 chapters, he describes how the court has consistently favored unrestrained policing over personal rights. With the brief exception of the 1960s Warren court, conservative justices have weakened or gutted remedies that challenged police misconduct; Chemerinsky says these decisions abandoned the Constitutional safeguards meant to secure the people in their persons and property. This book offers little hope that the current court might shift positions to curtail law enforcement's chronic pattern of brutality and flagrant disregard for Constitutional rights. Chemerinsky instead proposes alternate ways to reform policing: enforcing states' Constitutional safeguards; setting up stricter federal and state restraints; aggressive federal prosecution of police; and, perhaps most important, insistent protests and public pressure on all branches of government. VERDICT Chemerinsky provides an insightful primer for understanding the judicial decisions that support the United States' prevailing authoritarian, paramilitary, racist approach to policing. He points out problems but also lays out steps to overcoming the Supreme Court's consistent failure. A thoughtful, provocative, and instructive must-read for anyone concerned with justice and domestic tranquility.—Thomas J. Davis, Arizona State Univ., Tempe

Library Journal

2021-06-01
The veteran legal affairs expert offers a powerful attack on a judiciary committed to advancing the police state.

There was little in the way of formal policing in this country until the later 19th century, writes Chemerinsky, who has authored multiple notable books on systemic legal problems in the U.S. Before that, municipalities relied on night watchmen who might occasionally arrest a presumed wrongdoer, a system that “was cheap to administer.” An important consideration is that these police were not subject to the guarantees of the Bill of Rights and later amendments. Instead, the supposition all the way up to the level of the Supreme Court was that only the federal government was bound to honor unreasonable search rules and the like. “For a very brief time in the 1960s,” he writes, “the Warren Court expanded…constitutional rights and sought to significantly limit certain types of police misconduct. But overall the Warren Court was an aberration in American history.” Instead, the court has taken steps to make police immune from being sued for damages, a matter now being tested in the George Floyd case. However, Chemerinsky observes, the very restraints that were used on Floyd were approved by a court ruling in 1983, such that “federal courts cannot hear cases that challenge the chokehold and seek to stop it from being used.” (The logic behind the court’s ruling, writes the author, is particularly contorted.) Even equal protection rules are overlooked while it is statistically inarguable that most police violence is directed toward minorities. “In 2016,” to name just one year, “Black males between fifteen and thirty-four were nine times more likely than other Americans to be killed by law enforcement officers.” Chemerinsky does not join the call to defund law enforcement agencies; he argues the police would merely be privatized to serve the rich. Instead, he suggests that because the Supreme Court will not restrain the police, “state courts can and should invoke state constitutions in order to do so.”

Necessary reading for civil libertarians, public defenders, and activists.

Kirkus Reviews