Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.
As I watch the statements and directives that are being issued at a dizzying pace by the current administration, it is tempting to slip into a detachment described by Alexander Solzhenitsyn as “benign resignation.” The pithy phrase, attributed to Otto Von Bismark, that power takes precedence over law,{1} 1 “Macht geht vor recht” in the original German. seems to be the zeitgeist of our political leadership. Clearly, some seem willing to suggest, or at least concede, that where the two are in conflict, the law must accede to the assertion of power. Ironically, this presents an opportunity for criminal defense lawyers to assume the central and essential role in maintaining our democracy. Regardless of personal and political views, we must all stand prepared to oppose the criminalization of political dissent. We must stand against the prosecution of free speech. We are the only ones positioned to take a stand against the erosion of the last vestiges of the Fourth, Fifth, and Sixth Amendments.
It is not hard to envision a direct attack on the exclusionary rule that has been with us since Weeks v. United States (1914) and the application of that rule to the states that the Supreme Court announced in Mapp v. Ohio (1961).{2} 2 Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 1954 (1914); Mapp v. Ohio, 367 U.S. 643, 81 S. Ct 1864, 6 L. Ed. 2d 1081 (1961). We might also see an attempt to expand the indefinite detention provisions of the Patriot Act{3} 3 USA Patriot Act, Pub. L. 107-56, 115 Stat. 272 (2001). to U.S. citizens. As I share these thoughts, ICE has already detained an American citizen during a Philadelphia raid because he did not have documents proving citizenship at the time of his detention. We would all agree that skin tone or proficiency in a foreign language should never become probable cause for detention or arrest. The historical precedents for internal passports do not make for pleasant contemplation.{4} 4 By the 1930s, the totalitarian regimes of the Stalinist Soviet Union and Germany had internal passports that kept travel records of persons and, in some cases, prohibited travel within these countries without special authorization. Taking on the role of champions of liberty and the rights that we have enjoyed for 234 years since the ratification of the Bill of Rights will not be easy. In fact, it may become quite difficult. But, to quote Edgar R. Murrow, “difficulty is the excuse that history never forgets.”
Multiple fronts exist where we have an unparalleled opportunity to stand against the diminution of our rights and values. Already, there is discussion of Federal prosecution of those who would assist someone who crosses state lines to seek medical care or advice regarding gender or reproductive choice. Such Federal involvement, if unleashed, would be something we have not seen since the Fugitive Slave Act of 1850.{5} 5 The Fugitive Slave Act, Pub. L. 107-56, 115 Stat. 272 (1850), provided for the prosecution and imprisonment of any person, including those in “Free States” who aided an escaped slave by providing food or shelter. The directive to the Department of Justice to seek the death penalty, “regardless of other factors,” in cases involving the killing of law enforcement officers or capital crimes committed by an alien in this country illegally{6} 6 President Trump signed this directive on Jan. 20, 2025. may present another opportunity for us to stand firm. We certainly hope that we will not have to stand alone. We assume our courts will apply and uphold the constitutional protections they have sworn to protect. This task will require us to call upon them to exercise muscles that have become somewhat unengaged over the years. We will speak out. We will act, as we always have. Millions of our fellow citizens believe as we do, cherish the same freedoms that we do, and will look to us to speak for them. As Sophie Scholl said during her sentencing in 1943, “Somebody, after all, had to make a start. What we wrote and said is also believed by many others. They just don’t dare express themselves, so we did.”{7} 7 Sophie Scholl was tried on May 22, 1943, in Munich, Germany. She was denied counsel and prosecuted directly by the presiding judge, Roland Freisler. After a trial that lasted approximately half a day, she was found guilty and sentenced to death for spreading leaflets protesting Hitler’s policies at her university.
We must all stand as Liberty’s Last Champions. It is more vital than ever to encourage others to become NACDL members and assist in this fight. Now, more than ever, with every client, case, and project we engage in for the reform of the criminal legal system, we are standing on the right side of history.
About the Author
Christopher A. Wellborn is a founding member and past president of the South Carolina Association of Criminal Defense Lawyers. He practices in state and federal courts, representing clients facing all types of misdemeanor and felony charges, including drug charges, traffic offenses, white collar crimes, and juvenile offenses. Wellborn is sought after nationwide for his experience with unwarranted charges of shaken baby syndrome and child abuse.
Christopher A. Wellborn (NACDL Life Member)
Christopher Wellborn PA
Rock Hill, South Carolina
803-366-1065
cawlaw@comporium.net
www.wellbornlawfirm.com
