PRESUMED GUILTY

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.