Presumed guilty How the Supreme Court empowered the police and subverted civil rights

Erwin Chemerinsky

Book - 2021

"Presumed Guilty reveals how the Supreme Court allows the perpetuation of racist policing by presuming that suspects, especially people of color, are guilty. Presumed Guilty, like the best-selling The Color of Law, is a "smoking gun" of civil rights research, a troubling history that reveals how the Supreme Court enabled racist policing and sanctioned law enforcement excesses. The fact that police are nine times more likely to kill Black men than other Americans is no accident; it is the result of an elaborate body of doctrines that allow the police and courts to presume that suspects are guilty before being charged. Demonstrating how the prodefendant Warren Court was a brief historical aberration, Erwin Chemerinsky shows how... this more liberal era ended with Nixon's presidency and the ascendance of conservative justices, whose rulings-like Terry v. Ohio and Los Angeles v. Lyons-have permitted stops and frisks, limited suits to reform police departments, and even abetted the use of chokeholds. Presumed Guilty concludes that an approach to policing that continues to exalt "Dirty Harry" can be transformed only by a robust court system committed to civil rights"--

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  • Preface
  • Part I. The Supreme Court, Race, and Policing
  • 1. "I Can't Breathe": Why Courts Can't Stop Police from Using Chokeholds
  • 2. Confronting the Realities of Race and Policing
  • 3. The Supreme Court's Essential Role in Enforcing the Constitution and Controlling Police
  • Part II. A Minimal Judicial Role: The Court and Policing Before 1953
  • 4. Why the Supreme Court Ignored Policing for Much of American History
  • 5. Judicial Silence on Constitutional Protections and Remedies Before 1953
  • 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
  • 7. Both Limiting and Empowering Police: The Warren Court and the Fourth Amendment
  • 8. Miranda: Trying to Solve the Problem of Coercion in Police Interrogations
  • 9. Protecting the Innocent from Wrongful Convictions: Safeguards Against False Eyewitness Identifications
  • 10. Rights Need Remedies
  • Part IV. Retrenchment: The Burger Court Limits Constitutional Rights
  • 11. "Only the Guilty Have Something to Hide": Undermining Fourth Amendment Protections
  • 12. Hollowing Out Miranda
  • 13. Refusing to Check Police Eyewitness Identification Procedures
  • 14. Eroding Remedies for Police Misconduct
  • Part V. Empowering Police: The Rehnquist and Roberts Courts
  • 15. The Police Can Stop Anyone, at Any Time, and Search Them
  • 16. You Don't Really Have the Right to Remain Silent
  • 17. Ignoring the Problem of False Eyewitness Identifications
  • 18. The Vanishing Remedies for Police Misconduct
  • Part VI. It Can Be Done: Overcoming the Supreme Court to Reform Policing
  • 19. The Path to Meaningful Police Reform
  • Acknowledgments
  • Notes
  • Index
Review by Booklist Review

The conversation around police reform and the rights of citizens who interact with the criminal justice system is a wide-ranging one, but rarely has it considered the ways in which the landscape of American policing has been shaped by Supreme Court decisions. Legal scholar Chemerinsky (The Case against the Supreme Court, 2014) considers the numerous Supreme Court cases that have undermined civil rights while empowering law-enforcement officials. Citizen protections have been whittled away through ever-narrowing interpretations of what those protections mean, and remedies against police overreach and abuse have likewise been removed or gutted. Apart from a brief window of time in which the Warren court greatly expanded the rights of suspects, the Supreme Court has consistently ruled in favor of law enforcement, making it all but impossible for average Americans to assert their constitutional rights or receive compensation for violations of those rights. Presumed Guilty is a methodical and damning catalogue of how the highest court in the land has chosen to empower police forces at the expense of suspects, bystanders, and justice itself.

From Booklist, Copyright (c) American Library Association. Used with permission.
Review by Publisher's Weekly Review

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.)

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Review by Library Journal Review

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

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Review by Kirkus Book Review

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. Copyright (c) Kirkus Reviews, used with permission.

Copyright (c) Kirkus Reviews, used with permission.