William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I’d cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!
Robert Bolt, A MAN FOR ALL SEASONS (1966)
To justify taking away the constitutional rights of a citizen, many begin by demonizing the alleged offenders so it is easier to justify violating their constitutional rights. I speak of obvious circumstances like the government’s flaunting of international human rights and the laws of war. Many times America saw front-page color photographs of hooded, shackled, caged prisoners being held incommunicado on the U.S. Guantanamo Base in Cuba for an indefinite duration, with no access to families, press, or lawyers and interminably subjected to interrogations conducted without the protections of the Geneva Conventions.
But I also speak of how, every part of the government, including courts, like to demonize criminals as being somehow different from the rest of society before taking their constitutional rights. This is commonly done with the politically powerless –racial, gender or ethnic minorities –who are viewed as “those people” and not one of “us.” A lack of empathy for a criminal defendant makes it easier to impose unduly harsh penalties against those we have captured in the “war on drugs.”
The federal and state drug enforcement agencies employ more than millions of people. About half of those are drug enforcement agents who depend on the “war against drugs” for their livelihood. They often receive federal grants that allow them to buy new vehicles and advanced weaponry that they would receive in the absence of a war on drugs. Drug enforcement agencies annual budgets total about three billion dollars. The public would not tolerate such a huge commitment of public resources if it had not been convinced that dangerous drug users threaten to unravel the fabric of society.
Only recently when heroin abuse hit rural counties in Wisconsin have we not thought of drug users as demons in the dark but people who have become dependent on a horrible drug. Many drug users, like many people who drink alcohol, have a problem, but most drug addicts are no more menacing to society than most alcoholics. Some are responsible members of the community who became addicted to pain medication that was legally prescribed. Some experimented with drugs and were unable to overcome their addictive effects. Some use stimulants like methamphetamine to stay awake and alert for long hours. Some take illicit drugs to compensate for mental health issues. Others turned to drugs for the same reasons people abuse alcohol: to forget their problems, to overcome depression, to battle loneliness. The problem of addiction, like the problem of alcoholism, is a public health issue. Addicts suffer from the disease of addiction. That does not make them evil, any more than alcoholics are evil. Society should respond to those problems with compassion, understanding, and treatment, not with fear and scorn.
Likewise, the Wisconsin State Journal explained that the Wisconsin Supreme Court “has wrestled with a series of motions that sought to force [Justice] Gableman to step down from criminal appeals based on his campaign rhetoric demonizing defendants and their attorneys.” Dee J. Hall, “At state Supreme Court, conflict among the justices” Wisconsin State Journal Jan. 29, 2011. Such campaigns are foolish since they ultimately backfire and destroy public confidence in the legal system. For instance, In 2008, a survey conducted by Justice at Stake showed that approximately 52% of Wisconsin voters were confident in their Supreme Court. Hupy, “Restoring Public Confidence in the Judicial System” Marquette University Law School Faculty Blog
The United States Supreme Court held on June 20, 2016 in Utah v. Strieff that evidence of an alleged crime can be used against a defendant even if police did something illegal to obtain it. What does that mean? Law Enforcement can now legally act illegally to arrest people and courts will approve the illegality…..or at least look the other way. That only happens if you do not respect “those people.”
Further, ordinary people are charged with knowledge of substantive criminal law, and if they make mistakes of law, they may not (absent special statutory exceptions) assert such mistakes as a defense to liability. This is so no matter how “objectively reasonable” a mistake may be. As has been said time and again, “ignorance of the law is no excuse.” Bryan v. United States, 524 U.S. 184, 196 (1998). Indeed, as Justice Holmes famously explained, “to admit the excuse at all would be to encourage ignorance where the law-maker has determined to make men know and obey.” Oliver Wendell Holmes, The Common Law 48 (1881). But in Heien v. North Carolina the Supreme Court said police are governed by a different rule: the Supreme Court ruled a “police officer’s reasonable mistake of law gives rise to reasonable suspicion that justifies a traffic stop under the Fourth Amendment.”
It takes little reflection to see “the fundamental unfairness” of holding citizens to strict compliance with the law “while allowing those entrusted to enforce the law” to interpret and apply the law more flexibly. United States v. Chanthasouxat, 342 F.3d 1271, 1280 (11th Cir. 2003) (internal quotation marks omitted). “Reciprocal expectations of law-abidingness between government and its citizens can scarcely be expected to endure if one party – the government – need not uphold its end of the bargain.” Wayne A. Logan, Police Mistakes of Law, 61 Emory L.J. 69, 91 (2011) (footnotes omitted). Indeed, if anything, those charged with enforcing the law should be expected to have a better – not worse – understanding than the general public. Any rule that undermines this actuality, and that rewards police officers with more authority when they are ignorant of the law they are supposed to be enforcing, flouts our most basic constitutional value
Of course those decisions make sense if you remember that the criminal system is designed to get those types of people who we all know are criminals.