June 23, 2006
Leading Criminologist to Justice Scalia: You turned my research completely on its head.
In the Hudson ruling, Justice Scalia argues that the judiciary need not enforce the knock and announce rule because there are safeguards in place within the law enforcement community to take care of the problem. Scalia writes:
Another development over the past half-century that deters civil-rights violations is the increasing professionalism of police forces, including a new emphasis on internal police discipline. Even as long ago as 1980 we felt it proper to "assume" that unlawful police behavior would "be dealt with appropriately" by the authorities, United States v. Payner, 447 U. S. 727, 733-734, n. 5 (1980), but we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously. There have been "wide-ranging reforms in the education, training, and supervision of police officers." S. Walker, Taming the System: The Control of Discretion in Criminal Justice 1950-1990, p. 51 (1993).
In an interview with Radley Balko, published in The Agitator, Criminology Prof. Sam Walker (UN-Omaha), who serves on the Panel on Policing of the National Research Council of the National Academy of Sciences, states "Scalia turned my research completely on its head. My point was that these reforms came about because the courts, specifically the Warren Court, forced the police to institute better procedures with judicial oversight. Scalia now wants to take that oversight away."
Picking up on Professor Walker's concern, Ed Brayton, Dispatches From the Culture Wars, observes the following:
The irony of this is that Scalia, by his own declaration a textualist and an originalist, would be the first one to criticize reliance on social science research to justify a court ruling. Yet not only does he use such research to justify his ruling here, he does so sloppily and inaccurately. If he did not agree with the outcome of the decision, if it was written by someone other than him using the same reasoning for a goal he didn't agree with, Scalia would be the first one out front blistering this decision as exactly the kind of unprincipled, undisciplined judicial reasoning that one would expect from those horrible liberals who ignore sound judicial interpretation in favor of injecting their own social science driven biases into the law.
Note to Scalia's law clerks: You might want to read Professor Walker's works before copying and pasting from it. Professor Walker is the author of 13 books on policing, criminal justice history and policy, and civil liberties. His current research involves police accountability, focusing primarily on citizen oversight of the police and police Early Warning (EW) systems and includes such works as The New World of Police Accountability (2005), Police Accountability: The Role of Citizen Oversight (2000) and Citizen Review Resource Manual (1985). [JH]
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I just love that expression. When I hear it I think of our American revolution... that has to have been one of the greatest social engineering feats ever!
I believe that some court rulings that are "mutated interpretations" such as Plessy v. Ferguson which would be difficult to change via Brown v. Board of Education if we did not continue the "mutation" process.
So, "social engineering" is what exactly? So many phrases take on a meaning all their own. Usually with unspoken connotations which everyone nods their head in agreement but never fully understanding what they are agreeing with.
Because of the "engineering" aspect of the phrase we envision action... an affirmative response that causes change. If this is meant to imply that laws interpreted to change society are social engineering, then aren't all laws, by definition social engineering? We just choose to typify the ones we disagree with as being related to the negative connotation of the phrase.
Are we to presume that culture is static? That values do not change? That actions deemed unacceptable today should be locked into contradictory rulings of the past? That our values of today will meet all the needs of our society of tomorrow? If not, then how do they change?
Do the courts change their interpretation of the Constitution to fit within the the development of our changing society? Or, does the changing society create the change to which the Supreme Court reacts?
I don't see the 5 eyed family analogy. If we have contradictory rulings such as the Plessy and Brown cases, then it doesn't mutate, one replaces the other.
While I highly value factual presentations of opinions, I often find that certain characterizations of other's views leads to distraction... one where ideology and partisanship (attacking or defending) causes one to lose focus.
Posted by: Darren7160 | Jun 30, 2006 7:00:07 AM
Not sure this logic could be sustained over the longer term. You're saying social engineering may be used to expand constitutional protections to a perimeter beyond where they could be otherwise asserted, and implying this is needed to provide the oversight necessary to get these reforms in place; but on the other hand, once those reforms are realized, it's a logical contradiction for a justice like Scalia to declare that the oversight is no longer needed, because he's using social-engineering logic to render an originalist/textualist interpretation of the constitution.
If the social-engineering-inclined expansions of these constitutional protections are systematically expanded, as more oversight is needed from the judicial branch, and textualist-inclined contractions are systematically denied because they are presumed to contradict themselves, then we've defeated the mechanism for reigning in these mutated interpretations at such time the mutation is no longer required. The natural result of this is that the law continues to become further and further mutated, like a family clan of five-eyed cousins that continue to inbreed generation after generation. If the Warren expansion of the constitution was called for in the first place, isn't Scalia's ruling just the natural equal-and-opposite reaction needed?
I think your argument is fundamentally correct, but the point you've made, whether you realize it or not, is that the social-engineering ruling was a bad idea to begin with. Here it is time to scale things back again -- Scalia says so, you don't come out and directly contradict him -- and by your logic, it's impossible. Maybe it is. That would have to mean the best plan is to not engage in the exercise to begin with, even if it seems the situation might call for it.
Posted by: Morgan K Freeberg | Jun 23, 2006 1:51:18 PM
Scalia may have turned the professor's OPINION on its head, but not his RESEARCH, which is accurately quoted and on point.
Posted by: Ken B | Jun 23, 2006 11:48:44 AM
The issue between Prof. Walker and Hustice Scalia is whether or not the exclusionary rule is permanently necessary in order to assure good police practice. Not having read Prof. Walker's article, I can't say whether he takes that position. It does not appear that Scalia's Hudson opinion disputes that the exclusionary rule was necessary in the first place; the issue is whether it has to be forever maintained. Your blog item does not seem to take account of this.
Posted by: john Carr | Jun 23, 2006 10:45:58 AM
What exactly is Walker's beef? It sounds like he's saying "Dammit, Scalia, you just used my research to make a point I didn't want made." Na und?
Posted by: Xrlq | Jun 23, 2006 10:38:20 AM