Corridor of Prison with Cells
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For all the scrutiny of soon-to-be Supreme Court Justice Amy Coney Barrett and her writings on abortion rights, gun rights, and Obamacare, little attention has been paid to her rulings on the rights of criminal defendants and prisoners. She has issued opinions in 34 such cases and signed on to other opinions in her three years on the 7th Circuit Court of Appeals, a relatively thin record, yet one demonstrating a willingness to rule both for and against police, prosecutors, and trial judges.

At times she conveys compassion for the convicted and robust regard for the Fourth Amendment’s restrictions on police searches. She is occasionally willing to strip officers of their “qualified immunity” from lawsuits. But she can also adopt extremely narrow interpretations language in the Constitution, statutes, and court precedents to uphold questionable convictions and heavy sentences.

In the area of criminal justice and related civil suits, she has issued only five dissents. Four of them were to the detriment of  inmates and defendants, and one argued that a non-violent felon should be allowed to own firearms, which current federal law prohibits. In another dissent, in Sims v. Hyatte, she opposed the exoneration of a man whose attempted murder conviction relied entirely on his identification by the victim, who turned out to have been hypnotized before his trial testimony—a fact not disclosed to the defense. Two of the three judges overturned the conviction, and the man was released after 26 years in jail.

Otherwise, she has written for unanimous three-judge panels, putting her in the mainstream of the Chicago-based 7th Circuit. Most of her opinions in criminal cases have been slam dunks, not even close calls given the facts and precedents. Some appeals that reached the 7th Circuit seemed like stretches by defense attorneys; others exposed such egregious behavior by authorities that a contrary ruling would have shocked the conscience.

She has ruled several times against qualified immunity, which precludes civil lawsuits against police officers and other government employees unless their actions would be clearly understood by a reasonable official to violate established constitutional or legal norms. The doctrine, which was invented by the Supreme Court, has created a Catch-22: If the use of force, even deadly force in certain situations, has not been deemed a violation in the past, then it cannot be argued that a reasonable officer would regard it as such now. Hence, police officers as individuals can rarely be sued successfully, even as large judgements and settlements have led to payouts by local governments to victims’ families in New York City, Chicago, and elsewhere.

Barrett has not addressed the concept itself but has applied it for and against officers depending on the case’s specific issues. On the one hand, she dissented from a majority opinion in McCottrell v. White, allowing two inmates to sue guards who wounded them by firing shotguns inside a prison cafeteria. On the other hand, in Rainsberger v. Benner, she cast aside qualified immunity, for an Indianapolis homicide detective who lied in an affidavit to get an arrest warrant; the charges were dropped, and the defendant sued. She also joined opinions rejecting immunity for a prison guard in Wisconsin (Howard v. Koeller)who retaliated against a jailhouse lawyer by falsely labeling him a snitch and guards in an Illinois jail (Broadfield v. McGrath) who were sued for using excessive force against a suicidal prisoner. She ordered a new trial in another prisoner’s unsuccessful lawsuit (Walker v. Price) against guards he claimed had beaten him because the court had denied his repeated requests to help him find a lawyer. She wrote sympathetically of the inmate’s unsuccessful struggle to represent himself before the jury by video link, given his “IQ  of 76 and a grade-school level of comprehension.”

She has both upheld and overturned tough sentences, usually with close readings of the law and the federal sentencing guidelines. But she also used fussy grammatical nitpicking about “the present-perfect tense” to dissent from United States v. Uriarte, a 12-3 opinion of the entire 7th Circuit. The case applied the First Step Act, a new reduced-sentencing law, to a convict awaiting a revised sentence after his first was overturned.

In light of calls by Democrats to recuse herself from any election case that might reach the Supreme Court, it’s worth noting that Barrett ordered a reduced sentence because Judge Colin S. Bruce, a former federal prosecutor, had failed to recuse himself after having chummy, private conversations about other cases with prosecutors from his old office. (United States v. Atwood)

She also rejected a prison sentence that was lengthened based on an unproven assumption–that a man convicted of stealing guns had sold them to people he supposedly knew were prohibited from having firearms. “Nothing in the record suggests” that he knew the buyers’ legal status, she wrote for a unanimous three-judge panel.  “The court plainly crossed the line that separates permissible commonsense inference from impermissible speculation.” (United States v. Moody)

A man with both drugs and guns in his house was unduly given an enhanced sentence, she found in United States v. Briggs, for possessing a firearm “in connection with another felony offense,” as the federal sentencing guidelines provide. But “because the district court made essentially no factual findings connecting” the guns and the drug possession, she wrote for a unanimous court, the case was sent back down for resentencing.

Barrett’s several opinions and comments on the constitutional right to be secure against government searches offer the possibility that she might be willing to rescue the Fourth Amendment from near oblivion. Largely because of the war on drugs, the proliferation of warrantless searches of vehicles and frisks of pedestrians led Federal District Judge Paul L. Friedman to tell me a decade ago: “I don’t think that there’s much left of the Fourth Amendment in criminal law.” Since 9/11, digital surveillance rationalized by anti-terrorism policies has swept the country as well.

The amendment requires a warrant from a judge, backed by probable cause that evidence of a specific crime will be found in a particular place. But the courts have devised so many exceptions in allowing warrantless searches in so many situations that “the right of the people to be secure in their persons, houses, papers, and effects,” in the amendment’s words, has been severely undermined.

At her confirmation hearing, Barrett gave this significant response to Republican Senator Ben Sasse’s question about how the Fourth Amendment would deal with cell phones and other technology that didn’t exist when the Bill of Rights was ratified in 1791:

“No, the Fourth Amendment, so the Constitution, one reason why it’s the longest-lasting written constitution in the world is because it’s written at a level of generality that’s specific enough to protect rights, but general enough to be lasting so that when you’re talking about the constable banging at your door in 1791 as a search or seizure, now we can apply it, as the Court did in Carpenter versus the United States, to cell phones [requiring a warrant to get phone location records]. So, the Fourth Amendment is a principle. It protects against unreasonable searches and seizures, but it doesn’t catalog the instances in which an unreasonable search or seizure could take place. So, you take that principle, and then you apply it to modern technology like cell phones. Or what if technological advances enable someone with Superman x-ray vision to simply see in your house, so there’s no need to knock on the door and go in? Well, I think that could still be analyzed under the Fourth Amendment.”

Although Barrett calls herself an originalist akin to her mentor, the late Antonin Scalia, for whom she clerked, her answer did not sound very different from what a liberal judge supporting a “living constitution” would offer. The proof always lies in how the principle is applied to the specifics of a case. But her respect for the Constitution’s “level of generality,” “enough to be lasting,” suggests that she might not join the most conservative justices who dissented in Carpenter.

Writing for unanimous panels, she overturned two convictions that relied on unconstitutionally seized evidence. In one, United States v. Terry, she ruled that a woman in a bathrobe who answered the door to federal agents did not have authority to consent to a search of a male suspect’s apartment. The agents had arrested the man, did not have a warrant, and did not ask the woman who she was until well into the search. (She was the mother of his son but did not live there.) They found four cell phones and a drug-dealing ledger. Barrett wrote, “A bathrobe alone does not clothe someone with apparent authority over a residence, even at 10:00 in the morning.”

In another, United States v. Watson, she threw out a judgment based on a guilty plea because the police, acting on a 911 call from a 14-year-old boy on a borrowed phone, lacked reasonable suspicion to block a car matching his description of “boys” “playing with guns.” A passenger with a felony conviction was found to have a gun. Barrett called the 911 call “not sufficiently reliable” and concluded that “his sighting of guns did not describe a likely emergency or crime—he reported gun possession, which is lawful.”

Barrett has such a well-schooled intellect that all her opinions are intricately woven out of existing case law and statutory text, so—in the criminal justice arena, at least—she has not departed wildly from the web of precedent that confines her. She said more than once at her hearing that a judge is obliged to rule where the law takes her, which may violate her personal views. But once she’s on the Supreme Court and freer to chart her course, then what?

David K. Shipler

David K. Shipler is a Washington Monthly contributing writer; Pulitzer Prize–winning author of seven books, including Russia: Broken Idols, Solemn Dreams; and former Moscow bureau chief for The New York Times. He blogs at The Shipler Report and cohosts the podcast Two Reporters. Follow David on Twitter @DavidShipler.