Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights

by Erwin Chemerinsky

Presumed Guilty, like the best-selling The Color of Law, is a “smoking gun” of civil rights research, a troubling history that reveals how the Supreme Court enabled racist policing and sanctioned law enforcement excesses. The fact that police are nine times more likely to kill Black men than other Americans is no accident; it is the result of an elaborate body of doctrines that allow the police and courts to presume that suspects are guilty before being charged.

Demonstrating how the pro-defendant Warren Court was a brief historical aberration, Erwin Chemerinsky shows how this more liberal era ended with Nixon’s presidency and the ascendance of conservative justices, whose rulings―like Terry v. Ohio and Los Angeles v. Lyons―have permitted stops and frisks, limited suits to reform police departments, and even abetted the use of choke holds. Presumed Guilty concludes that an approach to policing that continues to exalt “Dirty Harry” can be transformed only by a robust court system committed to civil rights.

Genres: Nonfiction, Law, History, Politics, Legal, Audiobook, Race

384 pages, Hardcover

Published August 24, 2021

Reviews

[Erik · Rating 3 out of 5]

Acclaimed legal scholar Erwin Chemerinsky uses Presumed Guilty to tell the story of a system of unjust policing that has been entrenched and strengthened by a Supreme Court that refuses to hold it accountable.

With the exception of the few years of the Warren Court, the U.S. Supreme Court has shown a penchant for supporting police officers over the constitutional civil rights of criminal suspects and defendants. Chemerinsky gives a painstakingly detailed account of all the Supreme Court rulings on policing and what appears through this analysis is deeply disturbing. As the Court has only grown more conservative since the late 60s, the Court has also increasingly put our 4th, 5th, and 6th Amendment rights in jeopardy. The Court has made it next to impossible to hold police officers, departments, and cities liable for police abuse. The Roberts Court is gunning to eliminate the few remaining 4th Amendment protections against warrantless searches and seizures. And the Court has slowly eroded any protections that Miranda rights were supposed to provide. What appears is a conservative Court that has single-handedly created a system of policing that puts all our civil rights in jeopardy.

For a reader with no knowledge of the legal history surrounding policing, Presumed Guilty is essential reading. For readers who already know much of this history - and know the few avenues available for police reform - this book will offer little new substance. At times far too repetitive, this book can be frustrating both in form and content and the closing recommendations Chemerinsky offers - legislative and state-based solutions - leave little hope and no new ideas. But this book is essential reading nonetheless, and I highly encourage you to read it if this is a topic you have only tangentially been following.

[Matt Bender · Rating 3 out of 5]

Chemerinsky is a pretty big deal. He's kind of like the Ryan Seacrest of law scholars.

I’m not sure this book is light enough for a lay audience and it’s not as useful as his constitutional law supplement, but it’s maybe a good review read for litigators or a resource for people who want to dive in to the more academic/legal arguments about policing

[Donald Powell · Rating 4 out of 5]

A good review of the dysfunction of the Court and its misguided humanity. Judges are human and therefore subject to their racism (which they don't even know they have), prejudices and stilted upbringing. It is truly disgraceful the Court seems locked into so much error.
This book is a good support for the idea that too few souls on that Court make for bad law.

[Shaun · Rating 4 out of 5]

I received a free ARC copy through a Goodreads Giveaway.

A good look at how past decisions create the difficulties we, as a society, face in the present. A lot of precedent is set by the Supreme Court but a lot of the cases the Court decline to hear are declined because there is no precedent. Which is exactly why the Court should hear the cases.

Having studied some criminal law and criminal procedure in college, many of the cases cited throughout the book are very familiar to me. Some I only learned of for the first time. That may impact the readability for users not used to the language of the Court and criminal law. The reading can be quite dry at times. It is still important to learn the history if you are going to try and solve the issues of the present.

Chemerinsky does lay out a very linear timeline of the Court cases (and some the Court declined to hear) and their impact on current policing procedures and limitations (or lack thereof). His explanations include both direct quotes from cases while also giving summaries in easier language to understand. He also gives brief background information on the cases, to give the reader a complete picture.

The last chapter is dedicated to suggestions of how current issues can be remedied to make policing more balanced in how it approaches Constitutional rights and civil rights. If you think there are no current issues with how policing is done in the United States you likely won't enjoy this book unless you come in with an open mind. If you do want to know how we got to where we are...this is a fantastic historical reference.

[Sandra · Rating 4 out of 5]

The information in this book is five stars, very eye opening and a new (to me, at least) take on an old problem. It was a little slow going due to the dry nature of anything Supreme Court related, and a good deal of redundancy.

[Starlight Wymore · Rating 4 out of 5]

The Supreme Court has not issued a holding that limits police power in decades. Quite the opposite, it has continuously expanded the ability of police officers to act with impunity, repeatedly violating the constitutional rights of their victims with no consequences whatsoever. Furthermore, the Court has consciously ignored the effect their rulings have on people of color, despite the widely available data amassed over the years confirming the use of racial profiling among police officers.

In Presumed Guilty, Chemerinsky demonstrates how the Warren Court was the last to have any true consideration for the rights of criminal defendants and how the conservative Counts since have consistently eroded the rights of those on trial. He cites numerous cases to support his assertion that the Supreme Court not only does nothing to address racial profiling, but goes above and beyond to encourage the practice.

I really enjoyed reading this book. In 2017, National Jurist magazine named Chemerinsky the most influential person in legal education in the United States. He is a law school legend and I was thrilled to review this book.

I absolutely recommend this book. Well-researched and thought-provoking, it should be required reading for law students, especially those focusing on criminal law.

Scheduled for publication in August 2021, I encourage you to pick this one up and do your part in educating yourself.

Thanks to Erwin Chemerinsky, W. W. Norton and Netgalley for this ARC in return for my honest review.

[Robert Stevens · Rating 5 out of 5]

The author of this book does an excellent job at providing the historical context that has led us to the fact that in the United States, “the police almost always win”’ and how people are often presumed guilty instead of innocent. Also, we live in a country that gives more rights and absolute and qualified immunities to too many people that leaves individual rights as nothing more than a dream. The Supreme Court has drastically reduced the possibilities of remedies due to constitutional violations, which makes citizens feel powerless and the police feel empowered. It is also bothersome that the Supreme Court is quick to dismiss cases because no similar cases exists, which is stupid and just another way to defer to the police and to protect them.

The last part of the book could have been stronger as it made some suggestions for
meaningful police reform with an emphasis on making changes at the state and local levels via the legislatures and the courts, but it’s not a perfect fix. A valid point to those who want to defund or to abolish the police is that there would be private police forces that would make the inequities worse.

This book is bothersome and a call to action. We have to value people and individuals over giving police more rights and immunities. There can be a balance.

[Susan Flieder · Rating 5 out of 5]

I appreciate the very thorough and thoughtful review of this topic. I have to admit, it was hard to read, and to acknowledge that it is true that our Supreme Court most often rules against black and brown defendants/victims in favor of the police. It seems so overwhelming; I was thankful that Professor Chemerinsky gave us some hope at the end.

[Alex Selyutin · Rating 4 out of 5]

“Presumed guilty” provides very much needed historical context on the role of the Supreme Court in policing and enforcing the law on all levels of the US government. Chemerinsky relies heavily on the SCOTUS case law to illuminate the reasons why individual constitutional rights are often construed quite narrowly if not outright disregarded upon seeking legal remedies against police officers or prosecutors.

The author structures the book well and is more than capable of explaining complex legal jargon in ordinary English. I walk out with a much richer understanding of the exclusionary rule we are so used to seeing in crime TV shows, having learned about its narrowing interpretation across the 80 or so years of “modern” police practices. Provided variety of cases is definitely enough to get you more educated on the context around modern police practices, its development in some areas and resistance to evolve in others, and the notions of qualified and absolute immunity.

Chemerinsky’s analysis of cases, however, is a bit far from perfect. By making this book accessible audiences not too familiar with how the SC and the law generally work, he sometimes oversimplifies case decisions by emphasizing the story of the victims(constitutional violations described are very serious, don’t get me wrong) and the nature of the injury instead of focusing on presented legal arguments. By doing so, the book gives an oversimplified picture of the Supreme Court withholding individual rights while protecting law enforcement and government agencies. A lot of the presented analyses should not be taken at face value, and cases may require additional research if you are interested in the big picture.

Nevertheless, it is a great overview of the existing problems with policing and the Supreme Court’s way of dealing with them - usually by simply passing them along to the legislatures (as it sides with the police majority of the time )and by taking away many remedies that should be available.

[Matt Busche · Rating 4 out of 5]

I was hesitant to read this because I thought it was going to be just about the Conservative Justices backing the police at every step. I'm glad I read it because it was about how, almost unanimously, the Supreme Court has backed the police, qualified immunity, and against the rights of individual citizens. It was a good read with suggestions on how to fix at the end, although I won't be holding my breath waiting.

[Ella Campbell · Rating 5 out of 5]

I don’t know why this took me so long to finish, but it was super informative. It’s really interesting to see how many of the main problems with policing can be tied back to old Supreme Court decisions

[Tara · Rating 4 out of 5]

It's a bit like his crim pro book sputtered to life, but I'm not entirely mad about that. Not quite sure who the intended audience is, but I don't think law school is required.

[Erin · Rating 4 out of 5]

Chemerinsky's work is always informative, if a bit repetitious and more than a bit of a slog. He does his usual brilliant job walking through the line of cases that brought us to the current situation (the situation wherein the State via the police can shoot anyone they please at any time with impunity). I wish he wasn't so blinded by partisanship that he could be equally honest about all Justices' participation in the stripping of American civil liberties, rather than trying, ridiculously, to pin it on "the conservatives" - as if RBG and her cadre weren't as culpable as the Scalia crew. Still the best synthesis of the caselaw available, overt bias aside.

[Richard Thompson · Rating 4 out of 5]

Back in ancient times when I was in law school, we learned about all of this stuff in the classes I took on Criminal Procedure and Constitutional Law. The Miranda decision had been around for a few years, but the conservatives were still up in arms about it and from the liberal point of view, it was pretty clear that it would be easy to subvert, even it were not overturned. At that point the big wedge being driven into Fourth Amendment protections was the ruling that let police stop and search vehicles without a warrant based on "reasonable suspicion." The reasoning behind the ruling made some sense considering that otherwise criminals could drive away and destroy the evidence of their crimes while the police were standing around waiting for a warrant, but it was also easy to see how it was the beginning of the end. Sure enough, Miranda, though it still stands, has become worthless and the rule for cars has been expanded so that police can now stop and search anybody whenever they feel like it without fear of repercussions. And those two areas are just the tip of the iceberg in the dismantling of Warren Court protections. It's no surprise that police misconduct has become an increasingly serious problem thanks to the long term effort of conservatives on the Supreme Court to carve back on the protections established by the Warren Court. And, as Mr. Chemerinsky points out, the greatest burden of police misconduct always falls on people of color.

In my years after law school, I could see the trends clearly but didn't follow the developments in the case law of criminal procedure with a legal eye, so it was interesting to read this book in which the important cases since my law school days are discussed in detail along with descriptions of the trends and their social impacts. As Mr. Chemerinsky explains, the Supreme Court has almost always been a conservative law and order club that had a flash of liberalism in the Warren era that is now long gone and isn't likely to return any time soon. So even though the Supreme Court is supposed to be a great bulwark protecting our constitutional rights, when it comes to the rights of criminal defendants, we had best look elsewhere for legal means to implement the values embodied in the Constitution. Mr. Chemerinsky puts forward some good ideas in the last chapter, primarily ones that are focused on state and local government action. I agree that's where police and prosecutorial reform has the best chance, although in the past few years the pendulum seem to be swinging back to the right in state and local government too.

[James · Rating 4 out of 5]

An engaging work that explains/teaches how the Supreme Court has interpreted the 4th, 5th, 6th, and 14th amendments of the US Constitution, often to the detriment of citizens accused of a crime. It contains a lot of history in this area, especially regarding the most recent Supreme Courts, Warren through Roberts.

The book reads really well. At times, a bit repetitious, but I assume this is because it's hard to remember legal cases (for non-lawyers) after only hearing about them once. If the reader views the book as a form of teaching, this is less off-putting. That said, I still have trouble with matching case to the precedent set and would like a cheat-sheet.

I found the format very helpful in terms of organization and relatively short chapters, further broken down into more digestible sections. Very helpful.

I learned a lot from reading this, some of which I probably should have picked up in school, but having gone to school in the South, this is not the kind of stuff taught in government or even political science classes there, high school or university level. An example: I did not know that the Bill of Rights did not apply to state or local governments prior to Warren court decisions.

The one thing I found unpalatable about the book was the author's glib treatment of police abolition. I believe time and the hard work of committed activists will prove him wrong. That said, the reforms the author describes are all good things, albeit ones that support the status quo, whether he realizes that or not.

Overall, I would definitely recommend for those interested in policing in the US, the Supreme Court generally, and moderate views on police reform. I can't imagine a person in law enforcement choosing to read this, but I believe it would do them some good/provide perspective on their enormous, unearned ability to do harm.

Appropriate for high school students, but possibly too difficult of a read for many. Mileage will vary.

[Emma · Rating 5 out of 5]

Presumed Guilty should be a must read for everyone. It details how the Supreme Court has eroded the rights that many thing are given to us by the Constitution. It also goes into how the interpretation of the Constitution has changed since its inception. Many of the provisions of the Constitution were once thought by the Justices to only apply to federal matters. It also talks about how policing as we know it today has evolved from fugitive slave laws and their enforcement. The journey of our jurisprudence has been interesting.

After reading this book I feel much better informed about the Supreme Court, their decisions, and policing in the United States. I highly recommend this book to everyone and it should be at the top of your list of best books of they year when you read it. The information is easy to understand and presented in an organized fashion. There are many events and examples that make the content relatable.

Thank you to NetGalley and WW Norton for the ARC of this book. #PresumedGuilty #NetGalley

[Socraticgadfly · Rating 4 out of 5]

Not bad, but Chemerinsky does pull punches. Not as badly as he did in The Case Against the Supreme Court, as I noted in my review https://www.goodreads.com/review/show..., but he still pulls punches.

The biggie? On qualified immunity. On both Harlow, and the Pierson case a few years earlier that provided a run-up framework on qualified immunity, both Thurgood Marshall and William Brennan voted FOR qualified immunity. Bill Douglas was the only nay on Pierson and Warren Burger, interestingly, was the only nay on Harlow. I've got the goods on my blog. https://socraticgadfly.blogspot.com/2...

Chemerinsky doesn't tell you that. He doesn't discuss Harlow's ruling in detail and doesn't discuss Pierson at all. As dean at Berkeley Law, he knows these things, and the book isn't that long, so omitting them is willful.

A lesser case of punch-pulling? He criticizes Breyer and Ginsburg at times, but Kagan has also been a squish on the Fourth and Sixth and he doesn't mention that.

[Susanna · Rating 3 out of 5]

Discouraging--you can't sue police or prosecutors for perjuring themselves and landng you in jail unconstitutionally, the courts have done very little to alleviate the problems with eyewitness identification, Miranda rights have been weakened, etc., etc.

When it comes to the constitutional rights of criminal defendants, the Supreme Court's "small-government" conservatives seem to be more in favor of Gerald Ford's "government big enough to take from you everything you have."

I appreciated the anecdotal mention of Justice Blackmun, appearing to change his mind on criminal justice issues due to his "intellectual curiosity, open-mindedness, and humility."

On that note, this book shifted my perspective on constitutional originalism, as it showed how few constitutional protections were accorded to criminal defendants in the 1800s. Was that a faulty interpretation of the Constitution or did it really provide so few rights? How exactly did the founders envision the bill of rights protecting criminal defendants?

I listened to the audiobook. I think I first saw it on a library shelf.

[Mike · Rating 4 out of 5]

UC Berkeley's law school dean does a job that no one else has done - documenting how the rage against the police that enveloped the country in 2020 (and is now ebbing as crime rises) is rooted in the almost consistent refusal of the Supreme Court to take the authors of the Constitution at their word. After a brief period of acknowledgement by the Warren Court that rights without remedies are not rights at all, the Burger, Rehnquist and Roberts courts have managed to gut the 4th, 5th and 6th amendments. Interestingly enough, the so-called liberals on the Court have often been complicit in the gutting, with no one in the majority ever conceding or even considering the reality that racism affects the criminal justice system.

[John Baker · Rating 5 out of 5]

A true 5-⭐️ book! The book opens with the America history showing that police departments did not exist in the U.S. until after the Civil War. The first police started as “slave catcher groups.” The book then recites a thorough legal history of how the Warren Supreme Court established due process protections for individuals against police misconduct under the 4th and 5th Amendments of the U.S. Constitution. Only to have the Burger, Rehnquist and Roberts Courts to strip the individual protections and empower police to have very few of the restraints deemed essential by the Founders of our country! In addition the civil remedies open to individual lawsuits have been all but prohibited! Citizens have very few remedies against totalitarian police practices.

[Sasush · Rating 4 out of 5]

This was a really hard read--case after case of the ways in which the criminal justice system has interpreted and applied laws and policies to harm citizens and even non citizens. That statement they read you when you respond to a jury summons about whether as a juror you can accept that the defendant is innocent until proven guilty...well, especially if you are a person of color, that only applies to us citizens and not the police and the judges and the justices of this country. The police, judges, and justices seem to be ever more presuming the citizen to be guilty unless proven innocent and perhaps even that proof isn't enough.

[K · Rating 4 out of 5]

A really important book on the undermining of Constitutional rights for criminal defendants almost since the beginning of our republic. We often think our justice system is one where we’d rather let ten guilty men go free than imprison one innocent person but due to a series of Supreme Court decisions over two centuries and police cultures that allow constitutional violations, we have a justice system that would rather imprison ten innocent men than let one guilty man go free. He runs through how often police and prosecutors can violate the 4th Amendment and there is almost no remedy allowed by the Court.

[Luis Cuesta · Rating 3 out of 5]

I received this book as a Goodreads giveaway. Chemerinsky´s essay does a good job criticing a judiciary committed to advancing the police state. The book offers an elaborate body of doctrines that allow the police and courts to presume that suspects are guilty before being charged. This vision has created a racist policing and sanctioned law enforcement excesses that are affecting a lot of aspects of daily life in the US. The solution to this endemic problem that Chemerinsky offers is a robust court system committed to civil rights.

[Wingo Smith · Rating 5 out of 5]

This book is an excellent overview of how constitutional law shapes policing in America. I highly recommend folks read it.

Living in Georgia, I don't share the author's optimism on state law reforms to policing. Even in the blue islands, many local reforms are prevented by state law. Florida's law last year that penalized cities that reduced police budgets Is one example.

And the trend isn't limited to police. Republican-held legislatures block local initiatives on rent stability, living wages, and other vital issues.

[Fred Johnson · Rating 5 out of 5]

Eye-opening!

Since the days of the Earl Warren Supreme Court, our protections from police misconduct and abuse have been stripped by the "Conservative" majorities led by Rehnquist and Roberts. Rights I assumed were long established and Constitutionally guaranteed have been supplanted by decisions rooted in the belief that punishing criminals is more important than protecting the rights of the accused. Chemerinsky gives us today's grim reality, the history of how we got here and, thankfully, some ideas on how to undo the damage.

[Daniel Farabaugh · Rating 5 out of 5]

Another book that should be read in order to understand the problems with law enforcement and racism in the United States. The author, sometimes in a bit dense fashion, points out how the Supreme Court's conservative majority has systemically given the police the ability to do anything they want at anytime as they have stripped people's constitutional protections of meaning and removed the courts as an avenue of redress.

[Reneé Page · Rating 4 out of 5]

i really liked the authors writing style, he was very explanatory and engaging. however, i disagreed with his thoughts on the end that abolishing the police is not a productive method for reducing police brutality. the author cited evidence that a greater police presence deterred crime, which didn’t make sense to me as with a greater police presence, wouldn’t more crime be noticed and then punished?

[Emma Pinto · Rating 3 out of 5]

I don’t know why this book has such great reviews. Yes, it has some great information. But it could easily be pared down to 150 pages from 300. It was a slog to get through, and definitely expanded my understanding of the supreme courts culpability in limiting our rights from police abuse and recourse for such actions, it was I credibly repetitive. Sometimes it felt like I was reading a paragraph that had fully been grafted word for word from another chapter.

[Kaitlyn Dehais · Rating 5 out of 5]

SO GOOD. people think of the warren court as this beacon of liberalism but seeing not only its flaws but also its brevity was super exposing. learning about the cases in class is one thing, but the in depth exploration of the people behind the cases (including the justices) was just illuminating.
i know i am a nerd, but this book is so important for anyone interested in crime and civil rights.
5/5 stars.

[Kayla McGrady · Rating 4 out of 5]

A good read with lots of interesting information and insight. My only critique is that it could be slightly better organized to prevent the repetitiveness that got a bit trying by the end. The author seemed to underestimate readers’ ability to understand and remember his key points by hammering them in over and over (often at length). But I stuck with it because the content was interesting and, frankly, important.