27  Section 2.4: The Civil Rights Revolution

A political pendulum, swinging back and forth from liberal to conservative, marks the history of the U.S. Supreme Court. Obviously, conservative courts are courts composed of conservative justices, usually appointed by conservative presidents. Liberal courts, on the other hand, are composed of liberal justices, usually appointed by liberal presidents. These courts are often characterized by the name of the chief justice at the time. During the 1960s, the pendulum swung to the apex of liberalism when Chief Justice Earl Warren (1953 – 1969) led it. The Warren Court adhered to Packer’s Due Process Model, at least after the judicial activists achieved a majority on the court with the retirement of Justice Frankfurter’s retirement in 1962. This date marks the true beginning of the civil rights revolution. This liberal court, headed by Warren, emphasized civil rights across the legal spectrum. The most enduring changes in criminal justice occurred in their interpretations of the Fourth Amendment and Fifth Amendments, with many landmark cases coming down that were designed by the court to shield citizens from the abuse of police powers.

Prior to the 1960’s, the Supreme Court rarely interfered in the way that states ran their own criminal justice systems. The 1960s was a time of rapid social change, and that change is reflected in the decisions of the Warren Court. When the Warren court passed down its decision in Mapp v. Ohio in 1961, the criminal justice system in America was changed forever. However, this was only the beginning. Over the reminder of Warren’s tenure as Chief Justice, the court would hand down many more decisions that would redefine the American legal landscape in terms of civil liberties.

A more conservative Supreme Court, back in 1949, stated that the exclusionary rule applied only to federal law enforcement officers. According to the ruling in Wolf v. Colorado (1949), if citizens had any protection against illegally obtained evidence being used against them in court, it was up to state supreme courts to interpret state constitutions in such a way. Many courts did implement the exclusionary rule on the state level, following the lead of the U.S. Supreme Court, but some did not. When Mapp overruled Wolf, the exclusionary rule was applied to all law enforcement in the United States, no matter what level of government employed them.

Another landmark decision influencing law enforcement practice passed down by the Supreme Court was Chimel v. California (1969). Today, we teach that Chimel established an exception to the warrant requirement known as a search incident to arrest. As an exception to the search warrant requirement, this may seem like a case that fits Packer’s crime control model. This is because an exception to the search warrant requirement is generally considered to benefit law enforcement, and is thus a victory for law and order at the expense of a civil right. The facts of the case paint a different picture. When the police arrested Chimel in his home for burglary, they searched his home for stolen coins that were the fruits of his crime. The coins were found in a garage attached to the house. The court ruled that while the search was incident to the arrest, the search of the garage went too far. The proper scope of a search incident to arrest was the area in the suspect’s “immediate control.” We can see from this that the court limited a common police practice, effectively doing away with an unwritten arrest exception to the search warrant requirement of the Fourth Amendment. Because this was deemed a due process issue by the Supreme Court, that clause of the Fourteenth Amendment was used to apply the Fourth Amendment rule to state law enforcement.

While the decisions of the Warren court had a weighty impact on many aspects of American life, the most profound effects on the criminal justice system were in the area of due process and defendants’ rights. In Gideon v. Wainwright (1963), the court held that indigent defendants facing jail time had the right to appointed counsel if they could not afford their own lawyer. In Miranda v. Arizona (1966), the Warren court ruled that police must inform suspects of certain rights prior to a custodial interrogation. Due to popular culture, most every American knows the statement that is read to suspects by the police: ” You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have an attorney present during questioning. If you cannot afford an attorney, one will be appointed for you by the state. 

Not every case decided by the Warren Court served to benefit criminal defendants. In Terry v. Ohio (1968), for example, the Court ruled that the police could search suspects for weapons with less than probable cause.

The pendulum began to swing the other way in the 1970s, and continued to do so through the present day. This swing occurred because the composition of the court began to change. As liberal justices retired from the court, they were replaced by Republican presidents such as Nixon, Reagan, and Bush. By the end of the first Bush administration, the court had transitioned from the very liberal Warren Court to a much more conservative body. These conservative courts hammered out many exceptions to the blanket protections created by the Warren Court. This has created an increasingly broad scope of lawful investigative activity for law enforcement. This shift from the Due Process Model to the Crime Control Model did not take place only within the courts. It took place in the executive and the legislative branches as well.

The Burger Court (1969 – 1986) was far more conservative than the Warren Court, but there was no conservative majority. One of the most controversial cases decided by the Burger Court was Furman v. Georgia (1972), which abolished the death penalty as it was enacted at the time. This was not in keeping with the conservative expectations of the Burger Court because Warren Burger was a conservative appointed by President Richard Nixon. Conservatives hoped that a court led by Burger would be far more conservative, even to the point of overruling the more liberal of the Warren Court’s rulings. This was not to happen. The court may have chipped away at the major Warren Court doctrines, but it declined to overturn them. The chief justice may have been conservative when Furman was handed down, but the remnants of the warren Court still sitting on the bench kept the court liberal, at least to a degree, in its majority decisions. Because the composition of the court had shifted, some conservative decisions were handed down. Burger voted with the majority of the court in 1976 to reinstate the death penalty in Gregg v. Georgia (1976).

The Rehnquist Court (1986 – 2005) was far more conservative than the Burger Court. These conservative courts, perhaps out of concern for the time-honored tradition of cohesion and unity of the Supreme Court, did not overrule many of the liberal decisions of the Warren Court. Rather, they “chipped away” at them by creating scores of exclusions. That is, things like the exclusionary rule still existed as a matter of law, but there would be many exceptions that were created during the Reagan-Bush years. Conservatives applauded this as strengthening the ability of the police to do their jobs, and liberals lamented it as the erosion of hard one civil liberties.

Rehnquist was a strong believer in states’ rights. Much of his decisionmaking hinged on the Tenth Amendment’s reservation of powers to state government. He also rejected the broad view of the Fourteenth Amendment taken by the Warren Court, and believed that such an interpretation overstepped the proper bounds of federal power. An example of the chipping away at liberal interpretations of the fourth amendment includes Maryland v. Garrison(1987). In this case, the court held that a search pursuant to a warrant that the police believed incorrectly to be valid did not violate the searched person’s Fourth Amendment Rights. This good faith exception meant that such evidence could be admitted at trial. Another example is California v. Greenwood (1988), in which the court ruled that a warrant was not necessary to search a garbage can left on the curb for pickup (outside the curtilage of the home).

Juveniles and Civil Rights

Prior to the 1960s, few people challenged the sweeping powers of the juvenile justice system. During the Civil Rights Revolution, the Supreme Court considered the rights of juveniles at the time and found them wanting. In a series of fundamental cases, the Supreme Court greatly expanded the rights of juveniles. Many critics point out that these changes made the juvenile justice system look a lot more like the adult system.

In the landmark case of In Re Gault (1967), the Supreme Court extended many due process rights enjoyed by adults accused of a crime to juveniles. The facts of the case were rather shocking: A 15-year old boy named Gerald Gault had been sentenced to six years in a state “training school” for making a prank phone call. If Gerald had been an adult, the maximum penalty for this offense would have been a maximum fine of $50 and a maximum jail sentence of two months. As most juvenile cases proceeded at that time, Gerald was convicted and sentenced in a shockingly (by today’s standards) informal proceeding without the benefit of a lawyer. In reviewing the case, the court determined that all juveniles risking incarceration had the fundamental rights to have a lawyer for their defense, to confront and examine their accusers in court, and to have adequate notice of the charges against them.

In re Gault represented the beginning of a long series of cases where the court extended rights enjoyed by adults in the criminal justice system to children in the juvenile justice system. In In Re Winship (1970), the court established that the state must establish guilt “beyond a reasonable doubt” as it was in adult courts. In Breed v. Jones (1975) the Court extended the constitutional protection against Double Jeopardy to juveniles when it ruled that juveniles cannot be found delinquent in juvenile court and then transferred to adult court without a hearing on the transfer. There were limits to the number of adult rights that the court was willing to extend to juveniles. In McKeiver v. Pennsylvania (1971), the Supreme Court determined that juveniles do not have the right to a trial by jury.

During the “get tough on crime” era of the 1980s, juveniles were not immune to toughening sanctions. Legislators made similar changes to the juvenile justice system as they had to the adult system. In Schall v. Martin (1984) for example, the court determined that juveniles could be held in preventive detention if it was determined that they posed a risk of committing additional crimes while awaiting action by the courts. There was also a broadening of the range of juveniles that qualified for waiver to adult criminal court.

Key Terms

Breed v. Jones (1975), Burger Court (1969 -1986), California v. Greenwood (1988), Chimel v. California (1969), Civil Rights Revolution, Fourth Amendment, Furman v. Georgia (1972), Gideon v. Wainwright (1963), Good Faith Exception, Gregg v. Georgia(1976),In Re Gault (1967), In Re Winship (1970), Mapp v. Ohio (1961), Maryland v. Garrison (1987), McKeiver v. Pennsylvania (1971), Miranda v. Arizona (1966), Rehnquist Court (1986-2005), Schall v. Martin (1984), Search Incident to Arrest, Terry v. Ohio(1968), Wolf v. Colorado (1949)


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