What the Supreme Court Can and Can't Do About Mass Incarceration in the Current Term

As the high court heads into a new term, it’s important to keep an eye on critical cases while recognizing the limits of the bench.

Somil Trivedi, Former Senior Staff Attorney, ACLU Criminal Law Reform Project

October 8, 2021

As the Supreme Court kicks off another term this week, we should make one thing abundantly clear: Nine lawyers in black robes will not end mass incarceration and systemic racism in America. Not this term, not any. That doesn’t, however, mean the criminal law cases being argued and decided between now and June are inconsequential. The Justices could, if they choose, place meaningful limits on the power of local officials — police, prosecutors, judges — and give sharper teeth to key constitutional protections. This is why the ACLU tracks these cases closely and participates in many. They matter.

That said, we should be clear-eyed about what the justices can do, what they can’t do, and how you can fill in the gaps. With that in mind, here are three cases worth your attention:

Thompson v. Clark (argument Oct. 12, 2021)

In 2014, NYPD officers wrongfully barged into Larry Thompson’s Brooklyn home and pinned him to the ground after he demanded to see a warrant that they did not produce. To deflect blame, the officers falsely accused him of resisting arrest. When the charges were finally dropped, Thompson sued the police, arguing that his Fourth Amendment rights were violated. But New York federal judges tossed the case. They ruled that Thompson had to show “affirmative indications of innocence” before he could sue.

This makes no sense. People accused of crimes are presumed innocent until proven guilty, and may not have the time or resources to prove their own innocence before charges are dropped. Instead, the dropping of charges itself should be enough to indicate that the criminal proceeding has ended favorably for the accused, and a civil rights case can begin.

What the justices could do: Support both the presumption of innocence and law enforcement accountability by rejecting the “actual indication of innocence” standard.
What they can’t do: End law enforcement abuses and cover-ups, so that the next Larry Thompson is never assaulted at all, much less falsely accused of assault himself.
What you can do to fill the gap: Vote for prosecutors, sheriffs, judges, and mayors who commit to changing police abuses; lobby for legislation that eliminates the procedural to civil rights suits that erect an almost impenetrable protective shell around law enforcement.

Frasier v. Evans (argument not yet granted)

Speaking of procedural bars to police accountability, there is of course qualified immunity, which lets police and other public officials off the hook for constitutional violations unless the law is already “clearly established.” In practice, this is a virtually impossible standard to meet. Qualified immunity and its fatal flaws have gained national recognition in the wake of racial justice uprisings since the murders of George Floyd and Breonna Taylor, but we’re still awaiting its elimination.

In this case, Levi Frasier recorded Denver police officers punching a man in the head. The police officers then seized Frasier’s tablet, trying to erase the video. Frasier rightly sued under the First Amendment, and the 11th Circuit Court of Appeals (wrongly, in our opinion) granted the officers qualified immunity — even though they had been trained that the public was allowed to record them.

What the justices could do: Affirm the clearly established right to record the police doing their jobs and eliminate qualified immunity altogether. Because qualified immunity is a judge-made doctrine in the first place, the Justices could simply eliminate qualified immunity. This would be a game-changer.
What they can’t do: Stop police from punching people in the face.
What you can do fill in the gap: While we continue to press the court to fix qualified immunity itself, you can lobby your federal and state lawmakers to get rid of it via statute. Colorado is a good example. Since this case was filed, Colorado has taken steps to for state civil rights actions. On the ground advocacy can create the momentum necessary to push state and local actors to fill in the gaps that SCOTUS refuses to address.

Hemphill v. State of New York (argument Oct. 5, 2021)

Here, prosecutors in the Bronx charged a man named Nicholas Morris with murder after a person was shot during a large fight on the street. Morris’ case ended in a mistrial. The prosecutors, undeterred, then charged Darrell Hemphill for the same murder, arguing he was the real gunman during the fight. Unsurprisingly, Hemphill implicated Morris. Prosecutors then introduced statements from Morris that contradicted Hemphill’s story, but without producing Morris himself to testify in court. The judge allowed Morris’s hearsay statement into evidence, claiming that, without it, Hemphill’s defense would “mislead” the jury. Hemphill — now serving 25 years for the murder — argues that the Constitution guaranteed his right to cross-examine Morris directly in court.

What the justices could do: Affirm that the Sixth Amendment’s Confrontation Clause is iron-clad, and judges cannot simply waive it by asserting that the defense is somehow misleading. It’s the jury’s job to decide the truth, not the judge’s.
What they can’t do: Meaningfully cut back on prosecutors’ and judges’ discretion to circumvent trial rights, including trials themselves.
What you can do to fill in the gap: Once again, vote for prosecutors and judges who take their constitutional obligations seriously. And in the meantime, support our litigation and legislative efforts to cut back on pretrial detention, eliminate coercive plea bargaining, and take other steps that level the playing field between people accused of crimes and those accusing them.

There are certainly other significant criminal law cases this term, including Shinn v. Ramirez, about a federal court’s power to collect evidence during habeas corpus petitions, and Wooden v. United States, about what prior acts can trigger overly harsh federal sentences for gun possession. There are also cases adjacent to criminal justice in the immigration and national security context, plus cases that have yet to be granted.

More important than the outcome of any one case, however, we should learn to analyze the Supreme Court in light of what it can and can’t do for real people caught in the broken gears of our justice system — and then get to work making up the difference.

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