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Scholar Doesn’t Appreciate Scalia Cite: But Was The Citation Inaccurate?

In the Los Angeles Times, criminologist Samuel Walker writes that he felt “horror” when his book was cited by Justice Scalia in Hudson v. Michigan:

. . . Justice Antonin Scalia cited me to support a terrible decision, holding that the exclusionary rule — which for decades prevented evidence obtained illegally by police from being used at trial — no longer applies when cops enter your home without knocking. Even worse, he twisted my main argument to reach a conclusion the exact opposite of what I spelled out in this and other studies.

The misuse of evidence is a serious offense — in academia as well as in the courts. When it’s your work being manipulated, it is a violation of your intellectual integrity. Since the issue at stake in the Hudson case is extremely important — what role the Supreme Court should play in policing the police — I feel obligated to set the record straight.

Scalia quotes my book, “Taming the System: The Control of Discretion in American Criminal Justice,” on the point that there has been tremendous progress “in the education, training and supervision of police officers” since the 1961 Mapp decision, which imposed the exclusionary rule on local law enforcement.

My argument, based on the historical evidence of the last 40 years, is that the Warren court in the 1960s played a pivotal role in stimulating these reforms. For more than 100 years, police departments had failed to curb misuse of authority by officers on the street while the courts took a hands-off attitude. The Warren court’s interventions (Mapp and Miranda being the most famous) set new standards for lawful conduct, forcing the police to reform and strengthening community demands for curbs on abuse.

Scalia’s opinion suggests that the results I highlighted have sufficiently removed the need for an exclusionary rule to act as a judicial-branch watchdog over the police. I have never said or even suggested such a thing. To the contrary, I have argued that the results reinforce the Supreme Court’s continuing importance in defining constitutional protections for individual rights and requiring the appropriate remedies for violations, including the exclusion of evidence. To the contrary, I have argued that the results reinforce the Supreme Court’s continuing importance in defining constitutional protections for individual rights and requiring the appropriate remedies for violations, including the exclusion of evidence.

Am I mistaken, or does this complaint ring quite hollow? I confess I am not familar with Professor Walker or his work. But If I understand his op-ed correctly, Justice Scalia did in fact cite Walker accurately for an argument Walker did in fact make: There has been tremendous progress in the education, training and supervision of police officers since the 1961 Mapp decision.

Here’s the passage from Hudson that cites Walker:

Another development over the past half-century that deters civil-rights violations is the increasing professionalism of police forces, including a new emphasis on internal police discipline. Even as long ago as 1980 we felt it proper to “assume” that unlawful police behavior would “be dealt with appropriately” by the authorities, United States v. Payner, 447 U. S. 727, 733-734, n. 5 (1980), but we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously. There have been “wide-ranging reforms in the education, training, and supervision of police officers.” S. Walker, Taming the System: The Control of Discretion in Criminal Justice 1950-1990, p. 51 (1993).

As best I can tell, Professor Walker’s complaint is that Justice Scalia cited his descriptive claim accurately, but then, without mentioning Walker, went on to reach a normative conclusion that Walker personally finds “terrible.” Walker’s book concludes that the Warren Court’s expansion of the exclusionary rule improved police practices, and Walker takes the normative position that a further expansion of the exclusionary rule would be a good thing. Scalia cites Walker’s book accurately about existing police practices, but then takes the normative position that in light of those changes there is no need to further expand the exclusionary rule. In other words, Scalia agrees with and cites Walker’s descriptive argument but then disagrees with Walker’s normative views. But contrary to the suggestion of Walker’s op-ed, Scalia does not suggest that Walker would agree with Scalia’s view about the normative scope of the exclusionary rule.

Professor Walker is certainly free to say that Scalia’s decision is “terrible.” But I don’t think Walker has a case that Scalia committed a “serious offense,” “misused evidence,” and “violated” Walker’s “intellectual integrity.”

UPDATE: Reading over Walker’s op-ed again, I’m struck by an amusing irony: the first paragraph of Walker’s op-ed misdescribes the holding of Scalia’s opinion.  It’s not a big deal for an op-ed, of course, but it’s somewhat unfortunate in light of Walker’s charges.