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7 Reversing the Revolution Rights of the Accused in a Conservative Age  .  In 1987 and 1988 the little-known Office of Legal Policy in the Department of Justice released eight reports on criminal procedure. Under the series title “Truth in Criminal Justice,” the papers addressed an assortment of constitutional issues, from pretrial interrogation to habeas corpus to inferences from silence. The reports, wrote the assistant attorney general for legal policy, challenged “a judicially created system of restrictions of law enforcement that has emerged since the 1960s” and sought a return to “the ideal of criminal investigation and adjudication as a serious search for truth.”1 The series clearly reflected the Reagan administration’s position that liberal judges had unduly bridled policemen and prosecutors in combating crime, at grave cost to public safety. According to this view, the Warren Court in the 1960s had abandoned the discovery of truth, the traditional goal of American criminal procedure, in a misguided and unjustified expansion of defendants’ rights. These rights enabled criminals to escape punishment —and worse, to continue a life of crime—not through a trial determination of guilt or innocence but rather on some technicality that bore little relationship to what actually happened. As Attorney General Edwin Meese argued in his preface to each report, “Over the past thirty years . . . a variety of new rules have emerged that impede the discovery of reliable evidence at the investigative stages . . . and that require the concealment of relevant facts at trial.” The law needed reform, he proclaimed; above all else, “criminal justice . . . must be devoted to discovering the truth.”2 To achieve this end, the reports called for the reversal of landmark decisions from the 1960s. Few important cases escaped condemnation: Mapp v. Ohio (1961), Massiah v. United States (1964), and Miranda v. Arizona (1966), among others, introduced extra-constitutional, judicially created rules that impeded effective law enforcement. These decisions and others from the Warren Court, the reports claimed, unfairly burdened criminal investigation , allowed an explosive rise in the crime rate, and diminished the importance of the criminal trial, traditionally the testing ground for competing claims of truth. Order would be restored and the trial regain its central role in American jurisprudence when police and prosecutors had the freedom to present evidence of guilt or innocence. Convicting the guilty, after all, was the primary mission of the criminal justice system. Only the punishment and prevention of crime vindicated the innocent individual’s right to security . But “[i]f truth cannot be discovered and acted upon, the system can only fail in its basic mission.”3 This criticism of the 1960s due process revolution was not new to the politics of the 1980s. Richard Nixon made “law and order” a major theme of his 1968 presidential campaign, proclaiming that the Warren Court let “guilty men walk free from hundreds of courtrooms.” His first appointment to the Supreme Court, the new chief justice, Warren Burger, shared Nixon’s view: while still on the appellant bench, he wrote that the Court’s actions made guilt or innocence “irrelevant in the criminal trial as we flounder in a morass of artificial rules poorly conceived and often impossible of application .”4 Election after election saw politicians trot out variations of this theme, often with great success. The criticism remained politically potent during the Reagan-Bush years—witness the infamous Willie Horton commercial in 1988—because it appeared to explain the dramatic increase in violent crimes, especially by black males. Yet throughout much of the 1970s and 1980s the Warren Court reforms remained essentially intact. The Burger Court, with a more conservative cast, refused to extend the due process revolution and even trimmed some newfound rights, but it did not repudiate the earlier Court’s legacy. Even the Rehnquist Court followed suit initially, despite the new chief justice’s view that the Warren Court had erred often by deciding cases without constitutional justification. In the 1990s the Court switched direction. Bolstered by the retirement of William Brennan, a liberal holdover from the Warren era and a strong intellectual force on the bench, the Court signaled a reversal on issues of defendants’ rights. The new conservative majority abandoned several precedents , some established only a few years earlier. More significant was a different tone to the Court’s opinions, a determination to ensure that the rights of the accused did not prevent successful prosecution of guilty suspects. Perhaps more by circumstance than design, the Court’s shift paralleled the Reversing the Revolution / Bodenhamer...

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