Yesterday, Justice Sonia Sotomayor issued a powerful dissent in the case of Utah v. Strieff. The full dissent is well worth reading and can be found with other court materials here.
The case centered around the 2006 arrest of Edward Strieff Jr. in Salt Lake City. As explained in the headnote for the Supreme Court’s decision:
Narcotics detective Douglas Fackrell conducted surveillance on a South Salt Lake City residence based on an anonymous tip about drug activity…After observing respondent Edward Strieff leave the residence, Officer Fackrell detained Strieff…He then requested Strieff’s identification and relayed the information to a police dispatcher, who informed him that Strieff had an outstanding arrest warrant for a traffic violation. Officer Fackrell arrested Strieff, searched him, and found methamphetamine and drug paraphernalia. Strieff moved to suppress the evidence, arguing that it was derived from an unlawful investigatory stop. The trial court denied the motion, and the Utah Court of Appeals af- firmed. The Utah Supreme Court reversed, however, and ordered the evidence suppressed.
In a 5-3 decision, the Court overturned the Utah Supreme Court decision, with Justice Ruth Bader Ginsburg and Justice Elena Kagan also dissenting.
In the majority opinion, Justice Clarence Thomas explained:
To enforce the Fourth Amendment’s prohibition against “unreasonable searches and seizures,” this Court has at times required courts to exclude evidence obtained by unconstitutional police conduct. But the Court has also held that, even when there is a Fourth Amendment viola- tion, this exclusionary rule does not apply when the costs of exclusion outweigh its deterrent benefits…The question in this case is whether this attenuation doctrine applies when an officer makes an unconstitutional investigatory stop; learns during that stop that the suspect is subject to a valid arrest warrant; and proceeds to arrest the suspect and seize incriminating evidence during a search incident to that arrest. We hold that the evidence the officer seized as part of the search incident to arrest is admissible because the officer’s discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized incident to arrest.
On its face, this seems reasonable. Strieff was a criminal engaged in illicit activity. Perhaps, then, the officer was right to detain him and to initiate the chain of events which led to the discovery of evidence of Strife’s criminal behavior.
Justice Sotomayor, however, strongly disagreed:
It is tempting in a case like this, where illegal conduct by an officer uncovers illegal conduct by a civilian, to forgive the officer. After all, his instincts, although unconstitutional, were correct. But a basic principle lies at the heart of the Fourth Amendment: Two wrongs don’t make a right.
Because the officer did not search Strieff until after he learned of Strieff’s outstanding warrant, the majority opinion found the discovered evidence to be admissible; the search itself was entirely legal.
And perhaps stopping essentially random people, checking for a warrant, and then conducting further searches if needed, seems reasonable. Perhaps its better to inconvenience some people in order to catch criminals.
But, as Justice Sotomayor points out, this is an increasingly pervasive, institutionalized tactic:
Justice Department investigations across the country have illustrated how these astounding numbers of warrants can be used by police to stop people without cause. In a single year in New Orleans, officers “made nearly 60,000 arrests, of which about 20,000 were of people with outstanding traffic or misdemeanor warrants from neigh boring parishes for such infractions as unpaid tickets.”…In the St. Louis metropolitan area, officers “routinely” stop people—on the street, at bus stops, or even in court—for no reason other than “an officer’s desire to check whether the subject had a municipal arrest warrant pending.”…In Newark, New Jersey, officers stopped 52,235 pedestrians within a 4-year period and ran warrant checks on 39,308 of them.
I do not doubt that most officers act in “good faith” and do not set out to break the law.…Many are the product of institutionalized training procedures. The New York City Police Department long trained officers to, in the words of a District Judge, “stop and question first, develop reasonable suspicion later.”…The Utah Supreme Court described as “‘routine procedure’ or ‘common practice’” the decision of Salt Lake City police officers to run warrant checks on pedestrians they detained without reasonable suspicion.
There is something wrong with our justice system when police officers are trained to assume people are guilty until proven otherwise. Not only does this go against the heart of what our judicial system ought to stand for, it introduces – or extenuates – opportunities for systemic discrimination.
At the core of ‘citizenship’ is the idea that all people – regardless of legal status – have something of value to add to their communities. That their voices and perspectives matter. Allowing this random stopping of citizens paints an entirely different picture; that people must prove their right to be treated as full-fledged members of a community, that they may not be worthy of respect.
While many elements of the Utah v. Strieff case give weight to the Court’s majority finding, we ought to think long and hard about what kind of society we want to be and what kind of justice system we want to have. As Justice Sotomayor points out, this is the beginning of a very dark path, and – at the very least – we should know what we’re doing before we go down it.
I will let Justice Sotomayor conclude this post, then, with her powerful words of warning:
Writing only for myself, and drawing on my professional experiences, I would add that unlawful “stops” have severe consequences much greater than the inconvenience suggested by the name. This Court has given officers an array of instruments to probe and examine you. When we condone officers’ use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens.
Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more. This Court has allowed an officer to stop you for whatever reason he wants—so long as he can point to a pretextual justification after the fact…The officer does not even need to know which law you might have broken so long as he can later point to any possible infraction—even one that is minor, unrelated, or ambiguous.
The indignity of the stop is not limited to an officer telling you that you look like a criminal…he may order you to stand “helpless, perhaps facing a wall with [your] hands raised.” …If the officer thinks you might be dangerous, he may then “frisk” you for weapons. This involves more than just a pat down. As onlookers pass by, the officer may “‘feel with sensitive fingers every portion of [your] body. A thorough search [may] be made of [your] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.’ ”
The officer’s control over you does not end with the stop. If the officer chooses, he may handcuff you and take you to jail for doing nothing more than speeding, jaywalking, or “driving [your] pickup truck . . . with [your] 3-year-old son and 5-year-old daughter . . . without [your] seatbelt fastend.”…At the jail, he can fingerprint you, swab DNA from the inside of your mouth, and force you to “shower with a delousing agent” while you “lift [your] tongue, hold out [your] arms, turn around, and lift [your] genitals.” …Even if you are innocent, you will now join the 65 million Americans with an arrest record and experience the “civil death” of discrimination by employers, landlords, and whoever else conducts a background check. And, of course, if you fail to pay bail or appear for court, a judge will issue a warrant to render you “arrestable on sight” in the future.
This case involves a suspicionless stop, one in which the officer initiated this chain of events without justification. As the Justice Department notes, supra, at 8, many inno cent people are subjected to the humiliations of these unconstitutional searches. The white defendant in this case shows that anyone’s dignity can be violated in this manner…But it is no secret that people of color are disproportionate victims of this type of scrutiny. …For generations, black and brown parents have given their children “the talk”— instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them.
By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.
We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere….They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.
I dissent.
As we look toward NCDD’s 2016 national conference on Bridging Our Divides, we want to lift up stories of D&D projects that are actively showing how people can work together across huge differences, and NCDD member organization Living Room Conversations is a powerful example of that kind of work. We wanted to share a recent article from their blog about the change LRC has brought to the criminal justice reform conversation, and we encourage you to read it below or find the original here.
Critics of dialogue often ask, “what’s the point of talking? It’s not like it’s going to change anything, right?”
In January of 2013, a Living Room Conversation took place between Joan Blades, co-founder of MoveOn and Mark Meckler co-founder of Tea Party Patriots. After being surprised to discover how much they all agreed about criminal justice reform, Joan and Living Room Conversations partners decided to make this topic a priority in future efforts.
Front page coverage of the conversation between Joan and Mark led to a grant from California Endowment to organize Living Room Conversations about realignment (a change in CA prison policy that keeps non-serious offenders in county) and community safety. Those California conversations have prompted further conversations in Portland and Kansas City.
In 2013, Joan and Mark were invited to speak together on stage at Citizens University and Harvard Kennedy School – a clip of the Citizens University presentation was shared widely on Upworthy.
Joan wrote op-eds about criminal justice reform with Grover Norquist and Matt Kibbe in 2014. As the Living Room Conversations project got more and more attention, so did criminal justice reform – including a World Affairs Forum presentation that highlighted Living Room Conversations’ contribution to the the new momentum for criminal justice reform.
In October of 2014, these efforts led to Joan and Debilyn Molineaux helping convene a meeting of leaders in DC on the left and right, from inside and outside D.C., to talk about opportunities to work together to achieve meaningful progress on criminal justice issues where we already have fundamental agreement. That meeting helped inspire the creation of the cross-partisan Coalition For Safety and Justice – bringing together the Center for American Progress, Koch Industries, the American Civil Liberties Union, Americans for Tax Reform, FreedomWorks and others in the unlikeliest of alliances.
In December civil rights activist Van Jones co-hosted an event for Living Room Conversations focusing on criminal justice reform. He shared details about his new partnership with Newt Gingrich to form #Cut50, aimed at reducing the prison population. This April Van and Newt hosted a bi-partisan summit in D.C. on reducing the prison population. They had a fabulous turnout!
It is increasingly evident that criminal Justice Reform has reached a new place in the public consciousness. In May the NY Times had front page reports of presidential candidates on the right and left proposing to reform our system because there are too many people in our prisons and our drug policy is not working. Culture leaders like John Oliver and John Stewart recently eviscerated civil asset forfeiture laws and incarceration that is caused by poverty rather than breaking criminal laws. And leaders in Texas and Georgia now brag about reducing their prison populations. Laws and enforcement practices are beginning to change and prison populations are declining.
So maybe there’s a point in talking after all?
You can find the original version of this Living Room Conversations blog post at www.livingroomconversations.org/2016/06/living-room-conversations-criminal-justice-reform.
Medford/Somerville, MA – Young people have turned out in record numbers for the 2016 GOP primaries and caucuses. Now that Donald Trump is the presumptive Republican nominee, researchers at the Center for Information and Research on Civic Learning & Engagement (CIRCLE) – the preeminent, non-partisan research center on youth engagement at Tufts University’s Jonathan M. Tisch College of Civic Life – today released an analysis of his level of support from young people during this primary election cycle. This briefing examines how Mr. Trump’s support from young voters stacks up with previous Republican nominees, as well as implications for the general election.
The briefing offers findings in response to several key questions:
How did Donald Trump do among young people who voted in the primaries?
How does Trump’s youth support compare to that of previous Republican nominees?
How do young people overall view Donald Trump?
What are the potential implications for the general election?
For CIRCLE’s full briefing, please see here. CIRCLE’s 2016 Election Center will continue to offer new data products and analyses providing a comprehensive picture of the youth vote, including a forthcoming analysis of the presumptive Democratic nominee Secretary Hillary Clinton. CIRCLE researchers also will provide insight into key states where young people have the potential to shape the 2016 general election, as rated in CIRCLE’s Youth Electoral Significance Index.
Yesterday, some 65,000 people in Naha, the capital of Okinawa Prefecture, gathered to protest U.S. military bases on that island.
The protest was sparked by the recent rape and murder of 20-year-old Rina Shimabukuro, a crime which has been linked to an American military contractor, and is reminiscent of the 1995 protests which followed the rape of a 12-year-old girl by three American servicemen.
Among Okinawans, there is a widespread perception of U.S. bases as “hotbeds of serious crime,” though, as the New York Times points out, “defenders of the military point to statistics that show American soldiers and sailors in Okinawa are charged with crimes by the Japanese authorities at lower rates than locals.”
The strain between the U.S., Okinawa, and Japan, however, runs deeper.
Teacher and protestor Noboru Kitano, 59, is quoted in the Japanese Times as succinctly explaining the heart of the matter: “Japan is still a military colony of the United States. This base symbolizes that.”
The U.S. has had a continuous presence in Japan since the end of the second world war. Following the post-war occupation, the 1952 Treaty of Mutual Cooperation and Security between the United States and Japan – which has been active in its current form since it was updated in 1960 – provided for the permanent presence of U.S. forces on Japanese soil.
The majority of those forces are on Okinawa.
As of January 2016, the Japanese census puts 1,432,387 people living on Okinawa, including about 50,000 Americans – making it home to about half the American soldiers and sailors stationed in Japan. About three-quarters of the acreage taken up by U.S. bases in Japan is on Okinawa.
But, here’s the thing – Okinawa and the Ryukyu Island chain of which it is a part, has its own distinct culture and a long history as a political pawn between Japan and China. In 1879 – around the same times our own U.S. civil war – Japan’s Meiji government annexed the then-sovereign Ryukyu Kingdom, creating the Okinawa prefecture we know today.
During the second world war, just 66 years after its annexation, Okinawa was the scene of one of the bloodiest skirmishes in the Pacific, and the largest military engagement in history. The brutal, 82-day, battle claimed the lives of 14,000 Allied forces, 77,000 Japanese soldiers and somewhere between 100,000 to 150,000 Japanese civilians died.
Nearly all those civilians were Okinawan, and many of the Japanese soldiers were in fact Okinawan conscripts, drafted by the Japanese government against their will. The shocking death toll of this battle would then be used to justify U.S. use of nuclear weapons – as the American government became convinced that a land battle on the Japanese mainland would be just as horrific as the Battle of Okinawa, if not more so.
It’s entirely unclear if this is true, however. Seen as Japanese by the American troops and considered second-class citizens by the Japanese troops, Okinawan civilians suffered atrocities at the hands of both sides. Caught between the two superpowers, it was Okinawan civilians who suffered – one of the reasons for the horrific toll.
Following the war, the Japanese had little choice but to cede to American interests – which included establishing a strong presence of military operations in the east.
Okinawa, then, provided the perfect setting for rebuilding U.S.-Japanese relations. A strong U.S. presence there mitigated the risk of loosing the island prefecture to China – a manuver in the interest of both U.S. and Japanese officials. Furthermore, the Japanese lost little by ceding Okinawan land, while simultaneously ameliorating their U.S. occupiers. It was a win all around – except for the Okinawans.
This is a history that’s critical to understanding today’s Okinawan protests of American military bases. It’s almost beside the point whether local perceptions of American military crime are accurate or exaggerated. Just a few generations ago, the Ryukyu Kingdom was a proud, independent nation. Desired by China, annexed by Japan, and then colonized by the U.S., Okinawa has found itself continually caught between the interests of these global superpowers. And while great games of politics play out across the world stage, it seems it’s always the Okinawan people who suffer.
That is why they protest.
A new Nature article by Joshua E. Cinner and many coauthors entitled “Bright spots among the world’s coral reefs” is getting a lot of play in mass media. The authors find that, despite grievous damage to coral reefs around the world, some reefs are doing much better than predicted. Among the causes of their success are local institutions and norms:
Our initial exploration revealed that bright spots were more likely to have high levels of local engagement in the management process, high dependence on coastal resources, and the presence of sociocultural governance institutions such as customary tenure or taboos. … For example, in one bright spot, Karkar Island, Papua New Guinea, resource use is restricted through an adaptive rotational harvest system based on ecological feedbacks, marine tenure that allows for the exclusion of fishers from outside the local village, and initiation rights that limit individuals’ entry into certain fisheries
According to economics before Elinor Ostrom, an unowned and unregulated resource is doomed because individuals will exploit it. A coral reef is a perfect example of an unowned resource; thus it must be enclosed and controlled by a private owner or a state to save it from the Tragedy of the Commons. But Ostrom found that communities around the world have developed durable means of protecting such resources for their own use. They apply tacit design principles for the successful management of what she called common pool resources, including clearly defined boundaries, rules for appropriating resources that are congruent with the local biological and cultural circumstances, practical means of monitoring the resource, and procedures that most people in the community have some capacity to influence.* Although the above description of Karkar Island is brief, it seems to manifest these principles.
Ostrom’s findings are profoundly significant, because all over the world, local institutions for protecting common pool resources have been bulldozed (metaphorically or literally) by states and markets. That form of modernization is one cause of our global ecological crisis. If more people were permitted–or even supported–to manage local resources as the Karkar Islanders do, the world would be in better condition.
It is also true–as the Nature authors emphasize–that deadly external threats beset local resources (in this case, coral reefs). As long as we heat the earth at a global scale, it’s virtually inevitable that many or most reefs will be destroyed, regardless of how local people manage them. But it’s a mistake to read Elinor Ostrom as a “Small-is-Beautiful” romantic. Her insight is that collective action problems are omnipresent, but they are not inexorable tragedies. They are “dramas” that can turn out either tragically or happily, depending on how we organize ourselves. The moral of her work is not that indigenous people can save the earth if left alone, but that institutions at all scales must learn to manage resources using the principles that happen to be traditional in places like Karkar Island.
*Ostrom et al., “Covenants, Collective Action, and Common-Pool Resources,” in The Constitution of the Good Society, ed. Karol Edward Soltan and Stephen L. Elkin, 1996, pp. 23–38.
See also: Peter Levine, “Seeing Like a Citizen: The Contributions of Elinor Ostrom to ‘Civic Studies’” (The Good Society, 2011); Elinor Ostrom, 1933-2012; on the contributions of Vincent and Elinor Ostrom; and the cultural change we would need for climate justice.
Last week, NCDD supporting member Peter Levine shared the message below on the NCDD discussion listserv summarizing some key lessons from a book review he wrote of two recent books authored by NCDD members Caroline W. Lee and Josh Lerner. Peter argues that a key contribution of public deliberation lies in bolstering capacity for engaging in “relational politics” – not necessarily democracy or deliberation. We encourage you to can read his insightful piece below, find his original blog summary here, or read his full review article here.
In the June edition of Perspectives on Politics, I have an article entitled “Saving Relational Politics“* I review Caroline W. Lee’s Do-It-Yourself Democracy: The Rise of the Public Engagement Industry and Josh Lerner’s Making Democracy Fun: How Game Design Can Empower Citizens and Transform Politics and I advance an argument of my own.
I argue that what’s most valuable about activities like public deliberations, planning exercises, and Participatory Budgeting is not actually “deliberative democracy.” Neither political equality (democracy) nor reasonable discussion about decisions (deliberation) are essential to these activities. Instead, they are forms of relational politics, in which people “make decisions or take actions knowing something about one another’s ideas, preferences, and interests.” That makes them akin to practices like one-on-one interviews in community organizing or Augusto Boal’s Theater of the Oppressed.
Relational politics has disadvantages and limitations – it’s not all that we need – but it is an essential complement to well-designed impersonal forms of politics (bureaucracies, legal systems, and markets). And it’s endangered, because genuine forms of relational politics are not valuable to governments or companies. Relational politics still occurs at small scales, but we need strategies for increasing its prevalence and impact against powerful opposition.
Lee’s book is a useful critique of typical strategies for expanding relational politics, which involve developing small models and trying to get powerful organizations to adopt them. Lerner contributes a strategy, which is to make processes more fun so that they are desirable to both citizens and institutions. I review both books positively but argue that they leave us without a persuasive strategy for saving relational politics. After considering some alternatives, I argue that relational politics is most likely to spread as a by-product of mass movements that have political agendas. However, we need some people to pay explicit attention to the quality of the participatory processes.
*Per the copyright agreement, I am posting the “version of record” on my personal web page after its appearance at Cambridge Journals Online, along with the following bibliographical details, a notice that the copyright belongs to Cambridge University Press, and a link to the online edition of the journal:
“Saving Relational Politics.” Peter Levine (2016). Perspectives on Politics. Volume 14, Issue02, June 2016, pp. 468-473. http://journals.cambridge.org/action/displayAbstract?aid=10356927
You can find the original version of the post from Peter Levine’s blog at http://peterlevine.ws/?p=17055.