Mimsy Were the Borogoves

Editorials: Where I rant to the wall about politics. And sometimes the wall rants back.

Justice conjured is justice denied

Jerry Stratton, June 26, 2009

Two cases came down from the Supreme Court recently that were less about the law than about papering over bad laws so that they’re less obviously bad. In District Attorney’s Office for the Third Judicial District et al. v. Osborne, the court ruled that people don’t have a right to re-examine DNA evidence after conviction. In Safford Unified School District #1 et al. v. Redding, the court ruled that strip-searching a 13-year old for Advil is unconstitutional.

Justice Thomas is getting a lot of flak for his Safford dissent, but it’s important to remember that Thomas was on the right side of Gonzales v. Raich. The rest of the court—including Justice Stevens—upheld putting dying people in jail for using medicine that their doctors say will help them and that is less dangerous than Advil. Is the Raich ruling any less egregious than Thomas’s dissent here?

In this latest case, Thomas wrote, “The majority’s decision in this regard also departs from another basic principle of the Fourth Amendment: that law enforcement officials can enforce with the same vigor all rules and regulations irrespective of the perceived importance of any of those rules.”

Now, Thomas also appears to agree with these particular ‘rules’, but he’s been consistent even when he doesn’t. What he’s writing for is a fair application of the law to everyone. We will not get fairness if we let bad laws stand by papering over individual outrages while letting the outrageous laws themselves stand. Sometimes what looks like the kind thing to do is unkind. I wrote earlier about the misguided desire to kill people, in order to end suffering—granting a “right to die”—when the real problem is that we’ve made effective pain-killers illegal.

When we pass bad laws, and then carve out exemptions when the bad laws result in bad policy and the bad policy results in bad behavior, and the bad behavior is directed towards personable victims, we’re not fixing anything by saying that the bad behavior against photogenic victims is off-limits. Especially when we also say that the perpetrators aren’t liable for engaging in that behavior, as the court did in Safford.

Savana Redding wrote for the ACLU, “Forcing children to remove their clothes for bodily inspection is not a tool that school officials should have at their disposal.” I agree. But the Supreme Court did not rule that school officials don’t have this tool; they ruled that school officials do have this tool, but they have to specify a reason, such as that they think she might be hiding them there or that the drugs they think she has are more dangerous than Advil. Or that they think she might be hiding a lot of Advil. The court did not set a very high bar.

According to this ruling by the Supreme Court, if the school officials had said that an anonymous student tipped them off that the girl was hiding some unspecified illegal drug, then it would have been a valid search. You might believe, as many commenters have said, and as I agree with, that it’s “obvious” that strip-searching a 13-year old is unconstitutional. But the court disagrees with you. This was just a reasonable overreaction by a parent figure. Wrong but understandable.

In my opinion, this ruling was an attempt to pretend that the law itself is not wrong. All they really did was try to blunt criticism of bad laws by exempting photogenic 13-year-old victims who go to schools where Advil is the worst drug school officials are worried about.

Osborne is a little different. Where Safford came to my preferred conclusion without changing anything, Osborne came to a conclusion I disagree with but for the right reasons. In Osborne, the court ruled that a defendant who has already been convicted and who had the opportunity to use DNA during their trial but turned it down, cannot re-examine that DNA evidence after conviction.

Because technology continues to get better, I do think that DNA evidence should be able to be revisited solely for the purpose of clearing a conviction. But I also agree with the court in Osborne. We have too much of a tendency to look at individual cases as if pretending the law were something else won’t affect the rest of the system. That’s never true in the real world. If there is no difference in the law between DNA and other forms of evidence, the courts shouldn’t make one.

We have a justice system today where people accused of a crime only need to face the evidence once. The more we water that down and allow double-dipping, the more likely we are to lose that protection. Start letting the courts decide that some evidence is worth double-dipping regardless of the law, and that’s going to come back to haunt us.

Again, I’m not disagreeing that in the modern world some evidence shouldn’t be more privileged than others. I absolutely agree that DNA is a candidate for such elevation. But that’s a job for lawmakers, not the courts. The people to complain to are your congressmen. The courts cannot weaken one law without weakening all laws.

Our laws say that facts examined at trial cannot be re-examined later. This law protects the innocent from having to continually defend themselves from abusive prosecutors. If the courts weaken that rule, we lose. Congress, however, can, and should, produce new rules about which evidence can be re-examined solely for the purpose of proving innocence.

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