A majority of Americans believe the criminal justice system needs changes. Advocates are worried what a 6-3 conservative court will mean for the progress they’ve made thus far.
On May 25, a Minneapolis police officer kneeled on George Floyd’s neck for nearly nine minutes, suffocating him to death. The horrifying incident sparked massive nationwide protests on a scale not seen since the 1960s. Those protests, which continue to this day, have drawn an enormous multi-racial coalition of Americans together, changing the conversation around criminal justice and policing in the United States.
“A new generation is being ushered in to see very clearly how this country has operated,” Rashad Robinson, president of Color Of Change, a racial justice organization, told COURIER. “More and more Americans believe that there is structural inequality.”
A June poll from The Associated Press-NORC Center for Public Affairs Research found that 69% of Americans said the criminal justice system needs either a “complete overhaul” or “major changes,” with another 25% saying it needs “minor changes.” Only 5% believe no changes are necessary, according to the poll.
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Activists and civil rights leaders are hoping to capitalize on that support as they demand racial equality, criminal justice reform, and an end to police brutality. But there’s also a growing recognition that any tangible changes are likely to face challenges, including ones in the court.
That possibility has Robinson and other criminal justice reform advocates worried about what will happen if Judge Amy Coney Barrett is confirmed to the US Supreme Court, becoming the sixth conservative justice on the nine-person court. After days of hearings, the Senate Judiciary Committee has scheduled a vote on her confirmation for next week.
“The judicial branch of government in this country is one that is so critical and has been critical in our ability to see change move as a nation,” Rukia Lumumba, co-director of the Electoral Justice Project of the Movement for Black Lives, told COURIER. “The fact that it will be so heavily conservative really concerns me.”
The Supreme Court has a long history of making consequential decisions in criminal justice cases, many of which have provided critical rights to those entangled in the system—a disproportionate number of whom are Black.
In Mapp v. Ohio in 1961, the Court ruled that illegally obtained evidence cannot be used in criminal prosecutions in state courts. Two years later, the Court’s decision in Gideon v. Wainwright found that defendants in all criminal cases must be provided defense attorneys by the state if they themselves cannot afford one. Perhaps most consequentially, the Court ruled in Miranda v. Arizona in 1966 that suspects in police custody must be informed of their constitutional rights to remain silent and to obtain an attorney during interrogations while in police custody.
Barrett’s Record on Criminal Justice Issues
Barrett has only served as an appellate court judge for three years, but upon reviewing her record as a law professor and judge, the NAACP expressed concern that she would “jeopardize” protections afforded to those suspected of criminal conduct under the Bill of Rights. The organization joined 149 other organizations in opposing Barrett’s nomination. In a letter to the US Senate, the coalition wrote that Barrett “is incapable of rendering equal justice under law,” and if confirmed, “would grant President Donald Trump nearly unchecked power to continue the devastating assault on civil and human rights in America.”
In a 2010 article for the Boston University Law Review, Barrett expressed skepticism about Miranda rights, writing that they were an example of the Supreme Court’s “choice to overenforce a constitutional norm by developing prophylactic doctrines that go beyond constitutional meaning.”
During her time on the bench, Barrett also argued against the re-sentencing of a suspect under the 2018 First Step Act, which reduced mandatory minimum sentences for nonviolent drug offenses. Prior to the passage of the law in 2018, mandatory minimum sentencing procedures disproportionately harmed Black Americans. She also dissented in a case brought by prison inmates who filed a lawsuit against two prison guards who fired buckshot from their shotguns into a crowded dining hall, seriously injuring two incarcerated people. Barrett argued that the prisoners should have lost the case because they could not prove the guards were intentionally firing at them.
There is one notable exception to Barrett’s record that might give activists a shred of hope: Her ruling in a case centered around the practice of qualified immunity, which protects government officials from civil lawsuits. In 2019, Barrett ruled that a police officer who admitted to lying in a probable cause affidavit and omitting evidence was not entitled to qualified immunity, and could therefore be sued by the subject of his investigation.
Nonetheless, citing her overall record, the coalition of 150 civil rights groups wrote that “Judge Barrett has regularly ruled for law enforcement and against defendants in criminal cases and people in prison, often in dissent, reflecting her extreme views.”
‘A Complete Disregard for Our Experiences’
Many fellow professionals in the legal system have also come out against Barrett’s nomination. More than 5,000 attorneys representing all 50 states signed a letter, criticizing her record and opposing her nomination to the Court. “As a judge on the Seventh Circuit, Barrett has a consistent record of eroding civil rights, protections for workers, consumers, immigrants, and those in the criminal justice system,” they wrote, emphasizing her contradictory views on a “host of well-established rights,” including Miranda rights.
These groups and legal experts fear that Barrett on the Court would only serve to benefit a Republican Party that has largely opposed major legislative reforms, led by a president that has labeled protesters “thugs” and called Black Lives Matter a “symbol of hate.”
“What we’ve heard over and over again is rhetoric [from conservatives] that really pushes a complete disregard for our experiences as it relates to police violence and state-sanctioned violence,” Lumumba added.
The Movement for Black Lives is fighting back against that rhetoric and is among the organizations pushing for major reforms to policing and the criminal justice system with its BREATHE Act. The ambitious proposal seeks to reimagine the nation’s approach to public safety by: divesting federal resources from incarceration and policing; investing in new approaches to community safety; allocating money to build healthy, sustainable, and equitable communities for all people; holding officials accountable; and enhancing the self-determination of Black communities.
While Lumumba and her colleagues are working to change laws at the federal, state, and local levels, she can’t help but remain concerned about what a 6-3 conservative Court could mean for the reforms activists are pushing.
“The changes that we’ve seen in such a remarkable time this year—such as in Minnesota where they’re looking at alternative ways to create public safety without the use of the militarized approach that police use—I’m scared that … those advancements will be rolled back,” Lumumba said.
If a 6-3 Court does become a roadblock to criminal justice reform, it will be a short-term blow for activists and civil rights leaders. But in the long term, Color of Change’s Robinson believes it will only hurt the Court’s legitimacy and fuel even louder calls for reform.
“We are in a deep moment of cultural change where the rules and norms of society are changing,” he said. “The court can continue to settle decisions that allow for a smaller and smaller slice of the public to control what all of us do, but that never works for long periods of time. It does not work forever.”