Criminal justice trend: refurbishing - or dismantling - liberties?
''The 'social costs' are too great!'' ''We would have found out anyway!'' ''The safety of the many is at stake!''
As the curtain rolls up Oct. 1 on the 1984-85 session of the US Supreme Court , during which a new round of criminal-justice cases will be heard, these exit lines still echo from last term. They refer to key cases in which the high tribunal cut back on defendants' rights, applying alternatively a cost-benefit analysis, an ''inevitable discovery'' thesis, and a public-protection rationale.
But more important, these decisions more than hint at a whole new direction in the area of civil liberties - where the rights of the accused now are generally subordinated to concern for the protection of the innocent.
If opinion polls are right, most of the American public is applauding. They have too often been victimized by criminals; they have been frustrated with what they view as a tediously slow and sometimes ineffective criminal-justice system; they are appalled by what seem greater protections for the accused than for the targets of crime. And they want action!
The courts, particularly the US Supreme Court, are reacting. But the question is: Might they not overeact? And if they do, is there not a danger that they will snuff out individual rights long guaranteed by the Constitution?
This could well happen, if it hasn't already, say civil libertarians, who liken curtailment of the rights of the accused to the ''dismantling'' of the Statue of Liberty. Law-and-order conservatives are quick to point out, however, that Miss Liberty is not being permanently dismembered. She is merely undergoing needed refurbishing, they say, just as ''outdated'' criminal-justice rulings have been recently overhauled.
This dichotomy of views is heard in the ongoing debate on criminal justice, on the eve of the new Supreme Court session. If last term's rulings regarding admission of evidence and rights of the accused are merely a ''refurbishing,'' or a rebalancing, of the scales of justice, there is little danger of constitutional erosion and permanent infringement on individual rights. But if they signal the start of a judicial ''dismantling'' of liberties for the accused - on the pretext of protecting society as a whole - there is cause for concern.
More specifically, if the court's decision last term to provide a ''good faith'' exception to the so-called exclusionary rule (which bans from the courtroom evidence illegally or improperly gathered by the police) paves the way for eventual abolition of the exclusionary rule, then it is no longer a ''refurbishing'' but a ''dismantling.''
This ruling was based, at least in part, on a ''cost benefit'' analysis. Associate Justice Byron R. White, writing for the court's majority, stressed the ''substantial social costs'' exacted by the exclusionary rule: ''... When law enforcement officials have acted in objective good faith or their transgressions have been minor, the magnitude of the benefit conferred on such guilty defendants offends basic concepts of the criminal justice system.''
Similarly, the so-called ''inevitable discovery'' precept, if not employed judiciously, could lead to reckless police investigations. Up to last term, improper law enforcement procedures were grounds for dismissal of a case, or at least the barring of certain evidence. In theory, this was a powerful deterrent to police misconduct. But the majority of the court - led by Chief Justice Warren E. Burger - held that, if the spuriously gathered evidence would have been ''inevitably'' found in another manner by lawful means, then it should not be excluded.
Further, if newly enacted restrictions on the so-called Miranda warnings (reading suspects their rights against self-incrimination) are just the beginning of even broader curtailments of these Fifth Amendment protections, one would have to view the situation as more than just a constitutional refurbishing. In an arrest case, Associate Justice William Rehnquist ruled that ''public safety'' considerations may sometimes justify a delay in or the setting aside of the reading of rights to a suspect.
These decisions, as might be expected, have brought sharp criticism from liberals and civil libertarians. Among them, the court's own Associate Justices Thurgood Marshall and John Paul Stevens, who increasingly find themselves voting with the minority in criminal-justice matters. Justice Marshall has taken his brethren to task for leaving constitutional rights unprotected and eroding faith in the law. He says many of the court's opinions during the last term ''illustrate a very disturbing pattern'' of denying victims of constitutional violations any effective remedy in the courts.
And Justice Stevens last summer accused the high court's majority of reaching beyond the court's judicial authority in order to attain conservative results.
This term, the actions of the court - particularly in the area of criminal justice - will be under particularly close scrutiny. One hopes the justices will employ a concept they have embraced for others - and act squarely in ''good faith'' with the US Constitution.