Document Type

Working Paper

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Center for Constitutional Governance


As a general rule, criminal defendants whose cases made it to the Supreme Court between 1967 and 1991 must have thought that, as long as Justice Thurgood Marshall occupied one of the nine seats, they had one vote for sure. And Justice Marshall rarely disappointed them – certainly not in cases of any broad constitutional significance. From his votes and opinions, particularly his dissents, many were quick to conclude that the Justice was another of those "bleeding heart liberals," hostile to the mission of law enforcement officers and ready to overlook the gravity of the crimes of which the defendants before him had been convicted.

A short conversation with the man would have put any such assumptions to rest. One needed only to sense his pride in his son John's work as a Virginia State Trooper,' his respect for clever but honest prosecutors, or his hostility and contempt for drug traffickers ("dopers" he would call them), to be sure that Justice Marshall had little sympathy for outlaws, and much for those trying to enforce the law. Furthermore, there was no disjunction between the Justice's privately expressed sentiments and public utterances. It is true that many of his criminal procedure opinions, had they become law, might have made it more difficult to convict criminal defendants. His legal positions, however, seem to have been rooted, not in any overarching ideology of limited government, but in an intense awareness, based upon long experience, that those who wield the authority of the state are but human actors. Just as he respected those who exercised this authority with decency and integrity, he sought to ensure that those who did not would not prevail. He was also keenly aware of the humanity of those against whom the forces of the state were arrayed, and he recognized that illegitimate coercion can arise as easily from a suspect's fear of official misconduct as it can from actual misconduct.

Justice Marshall's jurisprudence in criminal cases was not merely a product of his own experiences, but what he had learned about the realities of the criminal justice system before taking his seat at the Supreme Court surely informed the approach he took to criminal cases. This was not someone prone to speak in abstract terms about finetuning the scales of justice. While a student at Howard Law School, he participated in one of the earliest clinical programs in criminal law and worked as an assistant to Charles Houston on death penalty cases. When he began a private practice in Baltimore, he took on many criminal cases, and his first appearance before the Supreme Court was in a capital case." The NAACP had, since its inception, waged a campaign against racial inequities in the administration of criminal justice, and Thurgood Marshall played a leading role in this campaign, first at the NAACP and then at the NAACP Legal Defense Fund. No one would call him a desk-bound general. Travelling around the country, and especially the deep South, he learned about local law enforcement practices from clients, sheriffs, prosecutors, and judges." While, on at least one occasion, he may narrowly have escaped violence at the hands of police officers, he was also the beneficiary of police work. Later, he often spoke with affection about the Texas Rangers who protected him on some of his trips, and would tell of mobs that sometimes pursued him. Marshall's tenure as Solicitor General may have given him an even greater appreciation of law enforcement interests in criminal cases. Indeed, in one of his few unsuccessful appearances before the Supreme Court, he argued the government's position in Westover v. United States, a companion case to Miranda v. Arizona.

lthough Justice Marshall's experiences offered him a unique perspective on the criminal process, the Warren Court's progress before Marshall took the bench somewhat limited his impact as a Justice on this area of the law. By 1967, when Thurgood Marshall became an Associate Justice, the Warren Court had rendered many of the landmark decisions that transformed the constitutional landscape in the area of criminal procedure. Over the previous half dozen years, the Court had decided Mapp v. Ohio, holding that state courts must exclude evidence obtained by unreasonable searches and seizures; Gideon v. Wainwright, establishing the right of indigent defendants to appointed counsel in state criminal proceedings; Massiah v. United States, extending the right to counsel to defendants' encounters with police and police informants after criminal proceedings commence; and Miranda v. Arizona, holding that the police must advise individuals taken into custody, even prior to the commencement of formal proceedings, of their right to remain silent and their right to counsel, and that the police may not interrogate suspects unless they knowingly and voluntarily waive those rights. While the outcome of some of these cases might be traced, directly or indirectly, to the work of the NAACP Legal Defense Fund under Thurgood Marshall's leadership, he played no role as a Justice in deciding them.

During the twenty-four years of Thurgood Marshall's tenure, the task of the Court in the area of criminal procedure largely was to fill in a picture whose broad outlines already had been painted. Justice Marshall may have seen his mission as essentially a conservative one: ensuring that the constitutional safeguards that the Court had already announced had meaning in the world he had seen before becoming a Justice – the world where poor and unsophisticated defendants, often victims of societal discrimination, found their fates, and sometimes their lives, placed in the hands of police officers, prosecutors, judges, juries, and even defense lawyers who had yet to heed the Court's ringing calls for equality, fairness, and individual treatment. We aspire to a government of "laws not men," but Marshall understood how bias or misunderstanding could infect a criminal justice system of laws and men. And he understood how individuals would implement, be affected by, or react to the Court's decisions interpreting and applying constitutional provisions. Repeatedly, and, as the years went on, often in dissent, Justice Marshall reminded his brethren of the human interactions at the heart of the criminal process and argued, often unsuccessfully, for a jurisprudence that wo uld limit the ability of human actors to corrupt that process.