American Con Law: Criminal Justice
I don't know about the class, but I really enjoyed our two classes on criminal justice: one mostly on search and seizure, the second mostly right to counsel (freedom from self-incrimination), and the death penalty.
On search and seizure, I drew a kind of crude continuum: at one (left) extreme, courts are trying to prevent police from taking too many liberties; one's home is pretty well safe from a warrantless search, exlusionary rule applies, etc. But as you move to the right, there are exceptions: your car much less protected than your home; a "container" such as a purse much less protected in a car than it is elsewhere; searches can be done as part of an arrest, and even on the basis of a suspicion; arrests can be made even for a ticket-only misdemeanour. And finally, the piece de resistance, high school students who take part in extra-curricular activies can be searched without their consent on a regular basis--specifically, they can be forced to take drug tests.
The first "right-wing" case on high school teams concerned a football team. We didn't read this case, but there are plent of references to it in Bd of Education v. Earls, which we did read. The football team in Vernonia was in a school with a particularly bad drug problem; there was reasonable evidence or suspicion that some football players were in the middle of the drug scene; and athletes on a team have substantially given up their privacy, above all by agreeing to "communal undress."
Somehow, Justice Thomas in Earls persuades a majority to permit drug-testing once again, even though the high school in question is not known to have a particular problem, there are no specific students who are known as problem cases, and it is hard to argue that the chess club or the choir ever agreed to communal undress.
I read quite a bit of this in class, and got some laughs. I'm not inclined to say Thomas is crazy--I like his opinions on affirmative action, charter schools and free speech. But here he does seem absolutely crazy. Given the controversy about his confirmation--which still seems able to put him on the boil at any time--is he the right person to keep referring to the "communal undress" of a high-school choir, presumably mostly female? Thomas even describes in great detail the procedure to make the kids urinate, in order to confirm that it is not "intrusive". (The kid can have the privacy of a cubicle--even a male! that's more than we said before, says Thomas--but the adult monitor must be able to hear the tinkle. Didn't that Irish track star manage to hand over a urine sample that had whisky in it? Pouring whisky might make a tinkle, I guess).
Ginsburg for the minority has great fun with this, and rightly so. Dahlia Lithwick also wrote about it at the time.
UPDATE: Another difference between the football team and the marching band: football players who are high are more of a risk for injury, including serious injury, both to themselves and others. As Ginsburg says, there are no reports of flying tubas.
On the death penalty, I would say most of these nice Canadian people in my class are against it. I gave some examples of wrongful conviction--mostly Canadian--in order to support the arguments for right to counsel, etc. But I also talked about some of the true monsters who are convicted of serial murders and such. What do we do with them, if we don't execute them? I had them read Scott Turow's piece from the New Yorker about his experience on the Illinois commission that looked at the death penalty. I think he is wise and even-handed: even if there are no cases where an innocent person is executed, there is too much variation in the outcome for cases that appear very similar, even within one state or local jurisdiction.
Does anyone know of an innocent person being executed in the U.S. since the death penalty was restored in 1976? Someone said Aileen Wornos claimed before she was executed that she had falsely confessed just to end the whole thing. This brought up the fact that some convicted people do eventually say "stop all appeals," possibly because they want to assert some control over the process. It could be argued that it is exactly at the moment where they demonstrate they are mentally ill, or at least very troubled, that the state agrees to kill them. As one student said: if some people (probably liberals) object to that, what do they think of the right to die--which often applies to people in extreme mental and emotional distress? I like that: libera
ls and conservatives may be on opposite sides, each trying to maintain a contradiction.
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