The Freedom Bulletin

The Supreme Court made a great ruling yesterday, unanimously declaring that, absent a warrant or probable cause, it is unconstitutional for police to track people’s movements by attaching a GPS device to their car.

As Justice Sotomayor points out:

“GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familiar, political, professional, religious, and sexual associations … The Government can store such records and efficiently mine them for information years into the future … And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: ‘limited police resources and community hostility.’ “

Read the full text of the ruling, in the case of United States v. Antoine Jones, here.

This week the Supreme Court heard arguments in the case of Albert Florence. Horrifically, Mr. Florence was wrongly arrested due to a computer mistake for failing to pay a traffic fine, which he had actually paid, and was then thrown in jail and strip searched twice. The Court is deciding whether New Jersey’s practice of strip-searching all inmates who are held in jail before trial is constitutional.

Interestingly, the more “liberal” justices seemed more opposed to strip searches and the more “conservative” ones seemed to lean toward supporting them.

Justice Sotomayor said that much contraband enters jails ”not on intake, but…from corrupt correction officials” and reminded her fellow justices of a very important principle, asking, ”What are we doing with the presumption of innocence? That’s also a constitutional right.”

Justice Kagan contrasted this case with a 1979 decision approving body cavity searches after contact visits, saying, ”Here, you are talking about somebody who is arrested on the spot. There is no opportunity for planning, for conspiracy with respect to contraband.”

Justice Scalia claimed that strip searches were routine at the time the Bill of Rights was ratified. Although I don’t know for sure, that would be very surprising to me. He also implied that it would be okay to strip someone “to see if the person has any fleas or cooties or, you know, any other communicable disease before he is put into the general population.”

My view:

Although jail officials and people who support strip searches do not refer to them as a punishment and do not conduct them for that purpose, being subjected to such a degrading invasion of privacy is unarguably a punishment, and a severe one at that. It is always wrong to inflict punishments on people who have not been convicted of a crime, both from a common-sense point of view and according to the Fifth Amendment to the Constitution, which forbids that anyone ”be deprived of life, liberty, or property, without due process of law.” Heck, you could even argue the more radical position that strip searches, even of people who have been convicted of crimes, are unconstitutional because they are a “cruel and unusual” punishment under the Eighth Amendment.

Looking at the debate from a slightly different angle, using common sense about searches and seizures also makes it clear that strip searching people, when there is no reason to suspect they may be hiding weapons or contraband, is unconstitutional. If someone is arrested, then presumably there is reasonable suspicion that they committed some crime. But the strip search is not related to finding evidence of a crime, it is done for safety and security purposes. If the inmate has done nothing to raise suspicion of smuggling contraband, then there is no reasonable suspicion to conduct a strip search, and it therefore violates the Fourth Amendment. This is even more true when someone is arrested for a minor offense such as failing to pay a traffic ticket.

A lawyer from the Department of Justice told the Court, ”You cannot say that there are some minor offenders that don’t pose a contraband risk. You have individuals who are making (a) very quick determination. They have very little time, and if they guess wrong, those mistakes can be deadly.” But a strip search is a severe violation of a person’s dignity, privacy, and sexual integrity. The burden of justification must always be on those who want to inflict such a violation, and it is certainly not enough of a justification that there is some chance, however small, that the person might have contraband. If you don’t have enough time to figure out which inmates raise a reasonable suspicion, you shouldn’t be searching anyone.

In my opinion, this particular case is a no-brainer. Punishing people in this way, when they must be presumed innocent and have done nothing to raise suspicion, is unconstitutional, and I hope the Supreme Court recognizes this.

John Thompson was convicted of murder and sentenced to death in 1985. He didn’t testify in his own defense because he worried that a prior armed robbery conviction would hurt his credibility. Shortly before his planned execution, in 1999,  private investigators discovered that prosecutors in the robbery case had withheld evidence that blood at the crime scene did not match him, that a supposed eyewitness description did not resemble him, and that the main informant had received a reward from the victim’s family. He was then retried on the murder charge and quickly acquitted. Then, he sued the district attorney who prosecuted him, Harry Connick, Sr., for failing to train his employees on their duty (established under Brady v. Maryland) to share exculpatory evidence with the defense. He was awarded $15 million for his suffering, one for each year he spent behind bars and one for legal fees.

Last week, the Supreme Court threw out this award. Justices Clarence Thomas and Antonin Scalia both wrote opinions, which Dahlia Lithwick at Salon called among the “meanest ever.” Justice Ruth Bader Ginsburg read her dissent aloud.

Scalia called the wrongful conviction the work of a “miscreant prosecutor,” not the fault of the D.A.’s office as a whole, in explaining why D.A. Connick shouldn’t be held liable. But Ginsburg wrote that similar Brady violations had occurred several times in the same office, that five prosecutors had been involved in the misconduct, and that they failed to correct it “despite multiple opportunities, spanning nearly two decades, to set the record straight.”

What makes this case really unjust is that, according to Ms. Lithwick from Slate, “the courts already give prosecutors absolute immunity for their actions as prosecutors.” So neither the D.A. nor individual prosecutors can be held responsible for misconduct that took 14 years from a man’s life and nearly killed him. Clearly, someone did something wrong. Either D.A. Connick failed to properly teach his prosecutors about their Brady obligations, or one or more individual prosecutors chose to violate these obligations. I don’t know enough to make a determination of which was the case here, but one or the other certainly was. It is wrong that neither of the possibly culpable parties can be made to pay restitution to their victim, Mr. Thompson.

• Full opinion (PDF)

Here’s some news on an old, notorious Massachusetts murder case. Dirk Greineder is an allergist from Wellesley who was convicted of murdering his wife back in 1999. Now he is taking his case to the Supreme Court, hoping to be one of the few appellants granted a writ of certiorari:

“In a 30-page petition to the Supreme Court, filed Jan. 28 by his attorney James L. Sultan, Greineder notes that the Sixth Amendment of the Constitution guarantees that a defendant be confronted with the witnesses against him.

A key piece of the case was DNA testing linking him to the knife and brown work gloves presumably used by his wife’s killer, his petition states. The prosecution presented the results through the testimony of a forensic laboratory director, but the testing was conducted and reviewed by three people who did not testify at the trial.”

Read the rest at Boston.com.

The Supreme Court ruled today that the Westboro Baptist Church’s protests at military funerals are protected by the First Amendment. The WBC is the extremist religious group, led by Fred Phelps and composed largely of his extended family, that believes that the deaths of soldiers are God’s punishment to America for its acceptance of gays and lesbians. Not an idea I agree with, to say the least, and one that is extremely offensive and hurtful to many people, especially the family of Lance Cpl. Matthew Snyder, who was killed in Iraq and whose funeral the WBC picketed.

But the Court decided that the Snyder family is not entitled to monetary compensation from Phelps and his organization. As Chief Justice Roberts wrote in his opinion:

“Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. It did not disrupt Mathew Snyder’s funeral, and its choice to picket at that time and place did not alter the nature of its speech. Because this Nation has chosen to protect even hurtful speech on public issues to ensure that public debate is not stifled, Westboro must be shielded from tort liability for its picketing in this case.”

Contrast this with France’s legal response to fashion designer John Galliano’s alleged anti-Semitic rant. He was charged with “public insults based on origin, religious affiliation, race, or ethnicity” and faces up to six years in prison for saying things like “I love Hitler” and “your forefathers would be gassed.”

Although the First Amendment protects unpleasant speech, I am thankful for it. Opinions should not be banned merely because they are offensive to many people. Extreme, radical, and even wrong views such as those of the Phelps family and anti-Semites, have a role in public discourse simply because diversity of opinion is a good thing. I would rather live in a world where people are allowed to express all kinds of views, even those that I find offensive and wrong, than one where people are forced or pressured into uniformity of thought.

Full Supreme Court ruling (PDF)