Knowledge And Decisions

Contrary to a long legal tradition, the Warren Court interpreted the Fourteenth Amendment as applying many federal rights and practices to the states in general, and the state courts in particular.²²⁹ Quite aside from the question of whether this was justified constitutional interpretation, or even whether the specific federal practices were better or worse than existing state practices, this created dual channels of legal appeal, between which a defendant could go back and forth — repeatedly adjudicating each of numerous new rights in two whole systems of multiple courts. The lowest federal district judge could now overturn the decision of a state supreme court, and the federal courts in general now assumed jurisdiction over procedures used in state trial and appellate courts. Moreover, some of these newly discovered or newly created rights were made retroactive, so that a criminal could, for example, challenge prior convictions on grounds that the state court could not prove that they had supplied him with a lawyer, thirty years before the Supreme Court required them to supply him with a lawyer — or to keep records of such things.²³⁰ Similarly, the Supreme Court’s 1968 ruling that it was unconstitutional to allow a jury to hear the unedited confession of a codefendant was made retroactive, and was then used in 1969 to overturn a 1938 felony conviction in which that had happened.²³¹

The increased litigation made possible by the decisions of the Warren Court was litigation over procedures — not guilt or innocence. Premeditated murderers, witnessed in the act, were able to continue appeals for more than a decade without even claiming to be innocent, but merely challenging legal procedure.²³² A murderer-rapist of an eight-year-old child, whose confession was corroborated by both evidence and other testimony, was set free by federal courts on procedural grounds — and the state courts forbidden to re-try him — even though his confession was found to be voluntary, the facts of the crime undisputed, and the evidence “overwhelming” in the judgment of the state supreme court.²³³ Nor were these procedural matters anything as serious as police beatings or even threats, but turned instead on fine legal points on which appellate judges often divided four to three or five to four.

The social costs of the Warren Court’s procedural changes were not simply those particular instances of freeing dangerous criminals which outraged the public, but also included an exponential increase in litigation which backed up other criminal cases and necessitated plea bargaining. The number of state prisoners applying for writs of habeas corpus in the federal courts increased from less than 100 in 1940 to more than 12,000 in 1970.²³⁴ Nor were these cases newly discovered miscarriages of justice. A federal appellate judge observed:

For all our work on thousands of state prisoner cases I have yet to hear of one where an innocent man had been convicted. The net result of our fruitless search for a nonexistent needle in the ever-larger haystack has been a serious detriment to the administration of justice by the states.²³⁵

A California appellate judge likewise observed:

It is with almost melancholy nostalgia that we recall how only five years ago it was possible to sustain a judgment of conviction entered in such a clear case of unquestionable guilt and to accomplish it without undue strain. Today, however, the situation is vastly changed.²³⁶