Digby says that today’s Supreme Court ruling allowing police to perform pat-down searches during traffic stops without probable cause and another denying citizens the ability to sue negligent or corrupt prosecutors are a legacy of the Bush administration that is likely to last and that the blame for the decisions on belongs to Chief Justice John Roberts.

I share the sentiment that these rulings – both unanimous, BTW – are somewhat unnerving in that American citizens have again given up a bit of liberty in return for governmental protection.  As to the cause of these new rulings, I couldn’t agree less.

Prosecutors should not enjoy complete immunity from their errors, as is indicated in the Van de Kamp v. Goldstein decision, simply because they are in the employ of the state.  Private service providers are responsible to the courts in cases of malpractice.  The logic that prosecutors who fail to disclose evidence – or the use of paid informants – do not have to answer for that offense is unsound.  The purpose of criminal proceedings is not to convict but rather to reveal the truth.  Often these are compatible goals, but not always.  The system should allow for a legal remedy when its administrators fail to provide justice.

Moving on, the new standard for a hands-on search is “reason to believe that the rider may be armed and dangerous”, which is a substantially lower standard than probable cause.  In Arizona v. Johnson, the officer’s criteria was a gang bandana and a criminal record.  A bad guy was arrested, certainly, but is there a cost to be paid in the future?  Most police officers, like most prosecutors, are honorable men doing a difficult job for not a lot of reward.  While “reasons to believe” are far too easy to imagine, especially after dark on a lonely road, most police officers are too busy to harass and/or frame the innocent.  I’m inclined to focus more on making less things illegal than limiting the police’s ability to lock up criminals.

Digby’s knee-jerk blame-Bush reaction is particularly foolish given the court’s unanimity on these cases and the absence of any objection, even from the very liberal John Paul Stevens.

It’s also a denial of reality in the Johnson case in that 50 years worth of both party’s policies towards policing, drugs, and incarceration are primary drivers with regard to violent crime.  Far fewer crimes are solved than a half-century ago and far less time is served for convictions, in far better circumstances. 

Our deterrent has been lost, largely because of liberalized policies.  “Reason to believe” is a reaction to a more dangerous world caused by bad decisions that will, to quote Digby, “probably take many decades to undo again if they are to be undone at all”.