The courts are acutely aware of their shortcomings—maybe too much so. When it comes to regulating the police, judges are far more likely to roll over than they are to defend your rights. While the rest of us have been imagining that the courts are supervising the police, the judges actually have been letting policing agencies do mostly anything they want. That explains a lot of why we are where we are today.

  THE STRIP SEARCH

  Clayton County, Georgia, sits just south of Atlanta. On October 31, 1996, Officer Zannie Billingslea of the Clayton County Police was scheduled to teach the antidrug D.A.R.E. program to Tracey Morgan’s class of fifth-graders at West Clayton Elementary. As Billingslea arrived, a student reported to Morgan that an envelope of money containing $26 that he had brought in for a field trip had disappeared from the teacher’s table. When a search of the classroom failed to produce the money, Morgan, with permission from the assistant principal, turned her attention to the students. She had them empty out their desks, book bags, and pockets—still nothing.1

  Morgan and Billingslea decided to take the students to the restrooms to search them more thoroughly. In the men’s room, Officer Billingslea undid his trousers and dropped them, in a demonstration of what he expected them to do. Then Billingslea “visually inspected the boys’ underwear to ensure the envelope was not inside.” In the girls’ room, “Morgan made them lower their pants and raise their dresses or shirts. Most of the girls were also asked to lift their brassieres and expose their breasts to ensure the envelope was not hidden under their bras.” Several of the girls said they were touched in the process. Other students, coming to use the restroom, stopped and watched. Several students said they were threatened with suspension or even jail time unless they complied.2

  The federal judges who heard the case, Thomas ex rel. Thomas v. Roberts, found that the “highly intrusive” searches violated the students’ constitutional rights.3 That much seems obvious. But they also decided they would do nothing to hold anyone responsible for the unlawful searches. The judges concluded that the law was not clear enough to put Billingslea and school officials on notice that schoolchildren could not be strip-searched in this way. There was something more than a little puzzling about that conclusion, given that just four years earlier the very same court, in a quite similar case, had said the same thing: strip searches of schoolchildren violated the Constitution, but the law was too unclear to hold anyone responsible.4 What, after all, does it take for the law to become clear?

  But here’s the truly remarkable thing. In February 2012, the very same lawyer who sued Clayton County in the Thomas case brought yet another lawsuit involving yet another strip search in yet another Clayton County school—this time of a seventh-grade boy named D.H. Three boys who themselves were strip-searched on accusations of possessing marijuana falsely accused D.H. of having drugs. When the police brought D.H. in and started to search him in front of the other boys, one of the boys admitted they were lying about D.H. The cop responded, “Why didn’t you tell me this before we brought him into the office?” but ordered D.H. to take off his clothes anyway. All of them. D.H. “begged to be taken to the restroom for the search,” but was forced to do it in front of his accusers, the vice principal, and the police. Nothing was found (of course).5

  Police and school officials keep strip-searching students in violation of the Constitution because courts cannot bring themselves to impose a penalty upon them for doing so.6 It’s just that simple. The law books are bursting with reports of such searches. Kids from preschool to the twelfth grade get searched. Kids are searched in private, but also in front of other students, teachers, police, and administrators. They are searched for as little as three dollars that has gone missing, and searched because a teacher decides a student is “too well-endowed” and therefore “crotching” drugs. Children are humiliated, and their rights are violated, with no reason. This happens again and again.7

  In 2011, the Supreme Court had a strip-search case of its own, and it, too, declined to provide any relief, despite finding a clear violation of rights. In that case, Safford Unified School District v. Redding, thirteen-year-old Savana Redding was told to unclothe, and then had her bra and underpants examined on the allegation that she had nonnarcotic painkillers. The Supreme Court voted 8–1 that “because there were no reasons to suspect the drugs presented a danger or were concealed in her underwear,” the search violated Redding’s Fourth Amendment rights. But once again the defendants paid no price, because—even after all these prior cases holding strip searches of schoolchildren unconstitutional—the law supposedly was still not clear enough to let them know they were doing anything wrong. Dissenting, Justice Stevens pointed out, somewhat facetiously, “‘It does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights of some magnitude.” 8

  If government officials pay no price for violating the Constitution, those violations will continue. Yet courts cannot bring themselves to do their job and impose these penalties. Indeed, contrary to popular impression, courts find it extremely difficult to regulate policing activity such as surveillance and the use of force at all. To be fair, it is not just that judges lack the will to do the job (though it certainly is partly that). They also realize they are ill suited to it.

  Policing the police has fallen on courts because no one else wants to do it. But leaving this job to courts has proven a distinct failure.

  THE GOLDEN MOMENT

  The common assumption that the courts are responsible for patrolling the police has its roots in one brief historical moment. That moment has come and gone, but apparently endures in the popular mind.

  In the 1950s and 1960s, the Supreme Court—headed at the time by Chief Justice Earl Warren—set out to reform state criminal justice systems. In one landmark decision after another, the justices set benchmarks—minimal constitutional rules—that states would have to abide by. There were rulings on search and seizure, on the way police obtained confessions, and on the right to a lawyer for criminal defendants.9

  There were two reasons the justices took this task upon themselves. First, and most obviously, it was because no one else would do it. Herbert Packer, one of the nation’s leading criminal law professors, deemed it “naive or disingenuous” to think the Court could sit by silently when “its hand is the only one raised or raisable.”10

  Second, many of the defendants in the pathbreaking cases were black, and much of the Warren Court’s self-assigned mission was to eliminate gross inequality in American society. In the mind of some, the criminal procedure decisions were just one element of a much broader agenda of racial justice.11

  These two reasons also explain why so much of this criminal justice “revolution” was surprisingly popular. When police complained about having to follow one of these decisions, The New York Times’s Anthony Lewis said the decision reflected “a national moral sentiment” that refused “to tolerate police misbehavior.” The decision in Gideon v. Wainwright, requiring lawyers for criminal defendants, was widely hailed as a matter of evident and simple justice. Even the governor of Florida, where Gideon was an inmate, conceded the point: “In this era of social consciousness, it is unthinkable that an innocent man may be condemned to penal servitude because he is … unable to provide counsel for his defense.”12

  But the tide turned against the Supreme Court’s effort to reform the police and state criminal justice in the late 1960s. With the ghettos burning and violent offenses on the rise, “crime replaced communism,” remarked correspondent Fred Graham, “as the hobgoblin of American politics.” “Fear” was the word on everyone’s lips. Appointing his Crime Commission to study the matter, Lyndon Johnson said, “Fear haunts … too many American communities. It assails us all, no matter where we live, no matter how little we own.”13

  Richard Nixon took advantage of this climate of fear in his campaign of 1968, running against the Court. “[S]ome of our courts and their decisions,” he argued, “have gone too far in weakening the peace forces as against the criminal forces in this country.” During the election, Congress also went after the Court: the leading visual display at congressional hearings was a graph that charted rising crime rates against the Warren Court’s major defendant-protecting decisions.14

  After Nixon won, the justices began to dismantle and back away from the protections they had afforded us. While Nixon was president numerous vacancies opened up on the Supreme Court, and he filled them with people who had expressed concern about crime rates and the mollycoddling of criminal defendants. The law began to shift, gradually at first, but then faster. And almost always in the direction of leaving the police free to do as they would.15

  REMEDYING THE CONSTITUTION

  When it comes to how the Constitution applies to the police, two things matter. The first is what lawyers call “substantive law,” meaning the actual rules. Can police or school officials strip-search children, and under what circumstances? Equally important, though, as the story of the Clayton County schools makes clear, is the second, the “remedy.” What happens to the defendants if they have violated someone’s rights? In the eyes of many, a right without any remedy is no right at all. What does it matter if strip searches are prohibited if, because there is no penalty, they still continue?16

  The story of the Supreme Court’s failure to regulate the police is as much about the remedies as the rights themselves.

  The Constitution doesn’t say a word about what happens if the Fourth Amendment is violated, mostly because at the time the amendment was adopted, everyone knew. If someone violated your rights, you sued them—for money. If the conduct was particularly bad, you also could recover punitive damages. Back then they were called “exemplary” damages—meaning they made an “example” of the wrongdoer, warning others not to engage in the same conduct.17

  The common law could be shockingly unforgiving when government officials violated people’s rights, even if they made honest mistakes or if the officials were just following orders—including those of the president himself. Captain George Little, commander of the U.S. frigate Boston, learned this the hard way. In 1799, the United States was in the middle of an undeclared naval war with France, and the president had issued a directive to ship captains like Little to seize any ships believed to be United States vessels that were headed to or from a French port. Following orders, Little seized the Flying Fish, traveling from a French port, and acting very suspiciously. But the president was implementing a congressional law that only allowed seizures of ships traveling to French ports that were undeniably United States vessels. The Flying Fish turned out to be Danish, so under Congress’s rules Little was twice in the wrong. In Little v. Barreme, the Supreme Court ordered Little to pay the sum of more than $8,000 (some $170,000 today) for his error. The Chief Justice acknowledged he had agonized over this, but the president’s orders “cannot change the nature of the transaction, or legalize an act which without those instructions would have been a plain trespass.”18

  Pretty tough. But also pretty effective if you don’t want people’s rights violated. Ultimately, Captain Little got Congress to pick up the tab for him; governments then and now often indemnify their officers in this way. Still, indemnification was in those days by no means certain, and in any event someone had to pay the freight when rights were violated.19

  By the middle of the twentieth century, though, for a variety of reasons that remain somewhat unclear to this day, the common law system of remedies was breaking down. The result was that the police were doing as they wished, with impunity—to the point that police would feel comfortable testifying brazenly at a criminal trial that they had kicked open the door to a home without a warrant.20

  And so the Supreme Court decided to intervene.

  ENTER THE EXCLUSIONARY RULE

  The case on remedies that made Supreme Court history began in Cleveland, Ohio, on May 23, 1957. Two things were big in Cleveland in those days: the numbers racket and boxing. Their uncomfortable collision found the police breaking and entering the home of Dollree Mapp. Mapp was a unique and determined person. (“[C]unning” and “audacious” was how Sergeant Carl Delau, the lead officer in the operation, described her.) She’d been married to the Cleveland boxing legend Jimmy Bivens; she divorced him for abusiveness, but she still ran in boxing circles.21

  On May 20, 1957, a bomb exploded at the home of Don “The Kid” King. King would go on to become one of boxing’s legendary promoters, but at the time he was deeply involved in Cleveland’s numbers (or “policy”) racket. Afraid for his life, King called the police, whose investigation led to one Virgil Ogeltree. Three days later, police received an anonymous tip that Ogeltree was staying at a particular address. That was where Dollree Mapp lived with her fifteen-year-old daughter; she rented out the first-floor apartment to boarders. So Sergeant Delau and two other members of Cleveland’s notorious “Special Investigations” squad set off to investigate.22

  When the police showed up at Mapp’s house, she was alarmed and called her attorney. He told her not to let the officers in without a warrant. Delau had no warrant, so she didn’t. The lawyer rushed over to protect Mapp’s rights, but the police wouldn’t let him enter either. A few hours and more cops later, Sergeant Delau got tired of waiting and decided to end the standoff. The police pried open a screen and broke a window. When Mapp demanded a warrant, Delau waived a piece of paper in her face. Mapp grabbed it and shoved it down her bosom; Delau went in after it. (Only after much litigation did the government admit there never had been a warrant.)23

  Because they viewed Mapp as “belligerent” in demanding to see a real warrant, the cops handcuffed her to another officer—and then to the bannister—while they searched her home. They eventually found their man—not in Mapp’s house, but in the renter’s apartment downstairs. That didn’t keep them from tearing Mapp’s place apart. Mapp describes the search: “They searched the drawers, the kitchen cabinets, the closets, in the pills—I had some diet pills. I guess they were looking there for some man in the pill package. They went all over.”24

  The next thing Mapp knew, she was on trial herself. In a piece of luggage in Mapp’s bedroom the police found numbers paraphernalia and four “lewd” books, including Memoirs of a Hotel Man. The luggage was that of a former tenant; Mapp had simply cleared out his stuff, which is why she later was acquitted of possessing the numbers materials in the luggage. Strangely, although the books were in the very same suitcase, she nonetheless was convicted of possessing trashy literature, and sentenced to one to seven in the state reformatory.25

  The Supreme Court originally took Mapp’s case to decide whether Ohio’s obscenity law—which didn’t require proof that she’d even looked at the stuff—was constitutional. But prompted by a stray paragraph in the brief of the Ohio and American Civil Liberties Unions, the justices decided the time was ripe to answer a long-standing question: whether state courts should have to throw out any evidence that was seized by police in violation of the Constitution. Memoirs of a Hotel Man and the other “lewd” books plainly were seized in violation of Mapp’s rights; if they were inadmissible into evidence for that reason, Ohio had no case against Mapp.26

  This rule barring from evidence anything unlawfully seized—called the exclusionary rule—had been applied in federal courts since 1914. As the justices explained when adopting the rule, if evidence can be seized in violation of the Fourth Amendment and then entered in court, “the protection of the Fourth Amendment … is of no value, and … might as well be stricken from the Constitution.” Here again is the idea we’ve seen, that rights without remedies are meaningless. But applying the exclusionary rule to the federal courts was one thing; making all the states follow suit was going to be a big deal. And so even as late as 1949, in a case called Wolf v. Colorado, the justices refrained from imposing the exclusionary rule on the states, hoping they would work to adopt their own effective remedies for unlawful search and seizure.27

  By the time Mapp v. Ohio made its way to the Supreme Court, in 1961, the justices had given up on the notion that states were going to take responsibility for reining in their cops. Writing for the Court, Justice Clark said it was now time “to close the only courtroom door remaining open to evidence secured by official lawlessness in flagrant abuse of that basic right.” So in Mapp the justices imposed the exclusionary rule on the states.28

  WHAT’S WRONG WITH THE EXCLUSIONARY RULE?

  Remedies are difficult to calibrate. If there is no adequate remedy, police and the governments for which they work will violate rights at will. But if the penalty imposed seems too harsh, judges will shy away from applying it. Either of these alternatives speaks poorly to protecting our rights. Indeed, the perceived problems with the exclusionary rule have led judges to approve a lot of bad policing just to avoid imposing it.

  People—including some judges—hate the exclusionary rule. Despise it. And it is not difficult to see why. The police catch someone with a carload full of drugs—or worse yet, nab a rapist or murderer—and a judge tosses out the evidence because the police broke a rule, often described in these circumstances as a “technicality.” The very fact that otherwise good evidence is being tossed out only goes to show that the defendant is guilty—and yet without that evidence likely will walk.29

  What people seem to miss, consistently, is that the price they are paying in letting these defendants off is not because of the exclusionary rule—it is the cost of having a Fourth Amendment in the first place. When Mapp v. Ohio was decided, police officials were outraged. New York’s police commissioner Michael J. Murphy was notably blunt: “I can think of no decision in recent times in the field of law enforcement which had such a dramatic and traumatic effect as this … Retraining sessions had to be held from the very top administrators down to each of the thousands of foot patrolmen.” But why, after Mapp, did the police require any police retraining? Mapp didn’t change the Fourth Amendment, which already bound the state and local police. All Mapp held was that the government could not use evidence seized in violation of that amendment. What these outraged officials really were saying was that before Mapp they were violating people’s rights willy-nilly—and getting away with it without consequence. Commissioner Murphy’s Deputy Commissioner Leonard Reisman was candid about this to The New York Times, perhaps more so than he meant to be. Describing Mapp as a “shock” that required the police to “reorganize our thinking,” he said, “Before this, nobody bothered to take out search warrants … the feeling was, why bother?”30