In Hollywood and TV crime shows, the criminal justice system often seems set up to coddle crooks - presenting elaborate legal hurdles for police and prosecutors.
Yet such popular perceptions often now defy reality. For years, a quiet pattern of US Supreme Court criminal law decisions has given law-enforcement officials a stronger basis to act more aggressively without fear of illegality.
The shift is evident in a death-row case the high court agreed to hear last week. It deals with an area of law perhaps least familiar to the public - habeas corpus, the time-honored right of inmates to seek relief in federal court. But it also profoundly affects the area that often touches the average citizen - Fourth Amendment laws governing police in the search and seizure of property. To many observers, how a nation negotiates this realm of citizen's rights is symbolic of the overall civilizing tone and temper of a society.
By themselves, the recent Supreme Court rulings deal with technical issues that rarely make headlines: Is there a difference between the search of a car and the search of a house? (There is.) Can a house search for, say, illegal drugs, be extended by police into a search for stolen property. (Usually, no.) Can police racial bias in a street search of a car or a person be grounds for excluding evidence in court? (Not any more.)
Moreover, criminal law changes are shaped both by new rulings, and by the high court's refusal to take cases that would uphold the more liberal Warren court of the 1960s.
For example, the high court has not in the past half-decade upheld a single case allowing the exclusion of evidence in trial. Criminal defenses often hinge on how well police have followed the law in gathering evidence. "At a subterranean level, the foundation of the Warren court logic is being washed away," says Akhil Amar, a Yale University law professor. "We are moving from an emphasis on warrants and exclusion of evidence in court to a new standard of 'reasonableness' that gives police more latitude to investigate. The main idea is simple: Why should guilty people go free when the evidence shows they did it?"
Civil libertarians shudder at changes that give civil authorities more power without oversight. They also lament the loss of voices on the court like the late William Brennan, who felt civilization was judged by treatment of its outsiders, and who once said that those in "the netherworld of the prison" should not be accorded fewer basic rights than anyone else. None of the current justices has a criminal defense background.
"The court has taken so many teeth out of the Fourth Amendment that there aren't any teeth left," says David Cole, a law expert at Georgetown University here. "There's really no one on the court who feels sensitive to the claims of criminal defendants."
Yet other factors weigh heavily in the direction of the court. Clearly the mood of the nation has been toward tougher enforcement, the rights of crime victims, and against the Warren court's expansion of exclusion of evidence in the 1960s to crimes like rape, murder, and robbery.
That sentiment was strongly expressed in the 1996 Anti-Terrorism and Effective Death Penalty Act. It limited to one year the amount of time death-row prisoners could appeal their sentences and, most controversially, took away much of the power of federal courts to review prisoners' petitions.
How much that power has shifted will be tested by the Martinez-Villareal case coming before the Supreme Court this session. When he was sentenced to death in Arizona, Ramon Martinez-Villareal's lawyers were not allowed to claim incompetence for their client, a Mexican citizen who killed two people and has an IQ of 64. The state judge said the claim, which could reduce the sentence to life in prison, was premature.
Yet on the eve of his execution last May, prosecutors argued it was too late to hear Mr. Martinez-Villareal's claim of mental retardation - citing the 1996 death penalty act.
The Supreme Court will decide not just if Martinez-Villareal has a claim, but also whether Congress can pass a law that forces a state court to limit its ability to execute a prisoner, even if the inmate has not been given a traditional review of habeas corpus.
Part of Congress's motivation for passing the act was the premise that the justice system was "choked" with habeas petitions. But a Justice Department study released yesterday shows that the number of death-row petitions is lower than widely assumed. Only 21 percent of death-row inmates in state prisons (648) have active habeas petitions, representing 2 percent of all such claims in federal court. "The study shows what most of us knew all along," says a Justice Department source, "that talk of all these claims bogging down the courts is a joke."
Meanwhile, three high-court rulings in the past two years have expanded the rights of police to search cars. A 1996 ruling in the case of a traffic stop of two young blacks in a poor section of Washington eliminated nearly all legal hurdles to a search without a warrant. The court ruled that police may search someone if they have a "reasonable" excuse to suspect wrongdoing, or a "probable cause." How reasonableness will now be interpreted is a large question. "The public doesn't realize how scary and even dangerous some of these police searches are for ordinary, law-abiding blacks and minorities," says David Sklansky, a Fourth Amendment expert at the UCLA law school.