Salinas v. Texas

There has been a lot written about the NSA surveillance program because it offends contemporary notions of privacy. My previous blog post addressed how the right to privacy has racial, class, and gender connotations.

I want to follow that up with the relative silence about the United States Supreme Court's recent decision in Salinas v. Texas. The case is about how prosecutors used the defendant's silence before he was in custody and given the Miranda warnings as evidence of his guilt. The facts are that the police asked the Salinas about questions about a murder. He answered some but refused to answer others. The state then argued at trial that his silence suggests guilt.

 Slate has a pretty good piece on the case and why this is both bad reasoning and bad for police.  The majority argued that Salinas did not invoke his rights properly. Scalia and Thomas, siding with the majority, argued that the Fifth Amendment should be merely limited to requiring the defendant to testify and not be applicable if a prosecutor mentions this silence.

It is stunning to see the conservative wing, so-called originalists and textualists, transfer so much power to the state in criminal prosecutions and reduce the scope of the Bill of Rights, given their hostility to government in so many other aspects of our lives (e.g. the NSA surveillance program). However, this decision like so many of the past twenty years have continually sought to roll back the criminal justice revolution of the 1960s and 1970s and give prosecutors, the police, and the state more power and defendants (i.e. ordinary people) fewer rights. The result has been to make the United States the world's leader in incarcerating its own citizens. The Patriot Act and the NSA surveillance program would have been impossible without the erosion of fourth and fifth amendment during the War on Drugs. I find it ironic that most Americans or at least most pundits are horrified when they see how the criminal justice system treats them, like it has been treating criminal defendants. It is just another reminder that we need to defend the rights of even the worst offender if we are to have a robust and meaningful Bill of Rights.