An empathetic approach to criminal justice
The following essay on retiring Justice John Paul Stevens was written by Professor Christopher E. Smith, who teaches criminal justice at Michigan State University. Professor Smith has written a number of articles on Justice Stevens’ jurisprudence, including Justice John Paul Stevens: Staunch Defender of Miranda Rights (DePaul Law Review forthcoming 2010), Justice John Paul Stevens and Prisoners’ Rights (Temple Political & Civil Rights Law Review 2007), and The Roles of Justice John Paul Stevens in Criminal Justice Cases (Suffolk University Law Review 2005).
In 1999, an essay published in Judicature asserted that the Rehnquist Court's justices were insufficiently supportive of constitutional rights in the criminal justice process because none of them had ever represented a criminal defendant. The assertion resonated with me. I am very interested in connections between judges' life experiences and their judicial decisions. Indeed, I had previously published my own speculative article arguing for the recognition of a generational influence on the Warren Court's criminal justice decisions. Those justices had grown into adulthood prior to the professionalization of policing and I could document from biographical sources that a majority of them who served during the 1960s had personally witnessed the misuse of police authority. This personal knowledge could contribute to shared skepticism about the trustworthiness of police as well as shared understandings about the need for clear limits on police authority. By contrast, later justices were less skeptical of the police. They grew up after the initiation of police professionalization and potentially lacked personal knowledge about police misbehavior.
When I applied these ideas to Justice Stevens, I presumed that a man who was born in 1920 and whose background was typically summarized in print as "Republican antitrust lawyer" was old enough to share elements of the generational knowledge of the Warren Court justices. However, I also presumed that he lacked the powerful empathic understanding that would flow from personal experience. Later, I came to learn that Justice Stevens had far more personal knowledge about criminal justice than anyone originally realized.
During the first twenty years of my academic career, I studied and wrote about specific justices who were, quite frankly, easy to label in ideological terms and easy to criticize for the inconsistencies and policy implications that flowed from their advocacy of particular approaches to constitutional interpretation. By contrast, Justice Stevens was a less-attractive subject for analysis because he could not be easily pigeon-holed as representing an ideological orientation or overtly espousing a theory of constitutional interpretation. Compared to some of his colleagues, his judicial opinions could seem less susceptible to simple, analytical generalizations. Eventually, however, my interest in judges' life experiences led me to become quite interested in Stevens as I was utterly stumped by the question: How did a "Republican antitrust lawyer" emerge as the Supreme Court's foremost advocate of prisoners' rights?
Undeterred by having accumulated several years' worth of autographed letters from Supreme Court justices declining my requests for interviews, I wrote to Justice Stevens to pose my first request to him. Much to my surprise, he wrote back immediately and invited me to come to Washington to talk to him. Although I spent only ninety minutes with Justice Stevens, I understand why he is revered by his law clerks. As others have described in recent entries on SCOTUSblog, he is completely unpretentious, modest, warm, and welcoming. He struck me as someone who genuinely listens carefully and with great interest to what others are saying, including a nervous stranger like me.
At the beginning of our conversation, I asked Justice Stevens about the assertion from the Judicature essay and he surprised me by talking about his experience in Chicago with pro bono cases, including criminal matters. He spoke immediately and at length about the time that Nathaniel Nathanson, his Northwestern law professor, asked him to represent Arthur LaFrana, a man who had been imprisoned for more than a decade after confessing to the murder of a theater cashier in 1937. The Illinois Supreme Court's opinion in People v. LaFrana (1954) outlines what Justice Stevens described to me:
According to defendant's testimony, when he refused to confess the captain hit him repeatedly with his fists and with a night stick. His hands were then handcuffed behind him and he was blindfolded. A rope was put in between the handcuffs and he was suspended from a door with his hands behind him and his feet almost off the floor. While he was hanging from the door, he was repeatedly struck until he lapsed into unconsciousness. When he lost consciousness he was taken down from the door and when he regained consciousness he would be hung back up on the door and again questioned and struck. After about fifteen minutes of this treatment he agreed to sign a confession. He was taken downstairs to the captain's office where he signed a confession.
As Justice Stevens told me these details, he put his hands behind his back momentarily and lifted them into an awkward position to illustrate what the police had done to LaFrana. When he said, "I'll never forget that," it was clear to me that the memory was indelibly etched into his mind. Justice Stevens' representation led to the overturning of LaFrana's conviction, with the Illinois Supreme Court's opinion noting evidence from a newspaper photo and a report by the county's jail physician that corroborated LaFrana's claims about injuries sustained during his time in police custody.
When I later looked closely at speeches that Justice Stevens had given, I noticed references to LaFrana's case. These ranged from fleeting allusions, such as a 1991 speech with a reference to Chicago in the 1930s in which he said "less prosperous criminals were sometimes treated brutally by Chicago police officers seeking confessions," to a 2004 speech with a specific description of LaFrana's case and the comment that "[w]hat I learned from that case has no doubt had an impact on my work on the Supreme Court." In recent years, scholars and journalists have published works documenting Stevens' childhood experience seeing his father convicted and subsequently exonerated in an embezzlement case, as well as his experiences with criminal justice issues during his year as Justice Rutledge's law clerk. Clearly, his pro bono cases in Chicago deserve similar attention as life experiences that shaped his understanding of law.
In a 1998 speech in which he thanked the Chicago Bar Association for "the many lessons about law" that he learned through his active membership in the Association, Justice Stevens said: "Association assignments taught me that prisoners are human beings and some, though not all, of their claims have merit." Thus the pro bono experiences appear to be a central element underlying Justice Stevens's long-time role as the Court's foremost advocate of prisoners' rights. For example, in the Supreme Court's seminal application of the Cruel and Unusual Punishments Clause to prison conditions, Justice Marshall wrote the majority opinion in Estelle v. Gamble (1976) that recognized a limited right to medical care for prisoners. Justice Stevens dissented in the case"”not because he disagreed with the recognition of the right, but because he concluded that Marshall's subjective "deliberate indifference" test was too limiting. Justice Stevens argued that the recognition of a constitutional violation should be based on the nature of the prison conditions, rather than resting on the motivations of prison officials. He emphasized his point by using the example of a Confederate prison in which 13,000 Union soldiers died from malnutrition and disease during the Civil War:
However, whether the constitutional standard has been violated should turn on the character of the punishment, rather than the motivation of the individual who inflicted it. Whether the conditions in Andersonville were the product of design, negligence, or mere poverty, they were cruel and inhuman.
Justice Stevens was prescient in raising this concern, because in 1991 a majority opinion by Justice Scalia limited prisoners' constitutional protections by appropriating and expanding the application of Justice Marshall's "deliberate indifference" test to declare that all prison conditions cases, not just medical care cases, required fulfillment of the difficult-to-prove "deliberate indifference" standard (Wilson v. Seiter).
The empathic understanding of criminal justice issues that Stevens gained from his pro bono work may also be responsible for his ardent defense of Miranda rights. A review of cases since 1975 that are classified as Miranda issues by the Supreme Court Judicial Database reveals that Justices Stevens and Marshall were the most consistent supporters of Miranda rights. Justice Stevens' experience representing LaFrana presumably helped to shape his understanding of the very real risks of abusive police behavior during custodial questioning.
The links between Justice Stevens' life experiences and his judicial opinions raise intriguing questions about other cases. In looking at the final two decades of Justice Stevens' career, I have argued that he demonstrated remarkable sensitivity to issues of race in criminal justice contexts. To see Justice Stevens' insightfulness about matters of race, one need look only at his dissenting opinion in United States v. Armstrong (1996), concerning prosecution of African-American crack cocaine defendants, or his opinion in Illinois v. Wardlow (2000), concerning the innocent and understandable reasons that "some citizens, particularly minorities and those residing in high crime areas" might quickly leave the vicinity when they see the police headed their way. These and other opinions demonstrate the depth and humanity of a wise jurist whose rich and varied life experiences have, until recently, been too frequently summarized with the limited phrase "Republican antitrust lawyer."