Imagine if Bush were saying this.
Last week’s announcement by Attorney General Eric Holder that he will ask Congress to expand the “public safety” exemption to the Miranda rule as it applies to terror suspects deserves a moment of attention before we move on again to oil spills and immigration.
For four decades, liberals have insisted that Miranda and its proscriptions are “part of the Constitution” and that abridging them would mean the beginnings of a police state. Had George Bush, Jr. made this suggestion, it is fair to anticipate that the New York Times probably would have run an eight-column headline screaming, “Bush Proposes Repealing the Constitution.” So what gives?
Now Holder wants to enlarge a small exemption carved out in New York vs. Quarles (1984), which says that the rule can be temporarily suspended where there is a “threat to public safety.” But doesn’t all crime pose a threat to public safety? A lone criminal who is not part of organized crime or a terror network may not pose an immediate threat to public safety, but wouldn’t failing to interrogate him or invalidating his confession later because of technical errors eventually endanger public safety as well?
This is exactly the issue Justice Byron White raised in his famous dissent from Miranda vs. Arizona (1966) when he wrote:
In some unknown number of cases the Court’s rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him. As a consequence, there will not be a gain, but a loss of human dignity.… There is, of course, a saving factor: the next victims are uncertain, unnamed, and unrepresentative in this case.
This warming turned out to be prophetic, to say the least.
Probably no single phrase better encapsulates liberalism’s 50-year romance with criminal suspects than the familiar quotation, “You have the right to remain silent. Anything you say may be held against you. You have the right to an attorney. If you cannot afford an attorney, the state will provide you with one.” After the Supreme Court handed down Miranda, hundreds of criminals had their convictions overturned because of retroactive application. Many were admitted murderers. Thousands of other confessions have since been thrown out before they ever reached the courtroom.
All this turned loose a lot of potentially dangerous people. Perhaps more damaging, however, was the psychological toll on the public in watching the courts flounder over whether an obviously guilty person should go free. A typical case was the murder of 9-year-old Pamela Powers in Des Moines in 1968 by Robert Anthony Williams, a 23-year-old drifter. Williams came under suspicion when Powers disappeared at a YMCA event and a 12-year-old boy saw him carrying a large object wrapped in a blanket from his upstairs hotel room. Williams was read his rights and refused to answer police questions. While he was being transported to jail, however, a police officer remarked that the family might want to give the missing girl a “Christian burial.” An hour later, without prompting, Williams volunteered to lead police to the body.
It took the courts fifteen years to decide whether this confession violated Miranda. Williams was convicted at trial but the U.S. Supreme Court overturned the verdict, saying that mention of a “Christian burial” had constituted “psychological coercion.” At a second trial, Williams’s implicit confession was excluded but the dead body was ruled admissible on the grounds that its discovery was “inevitable.” Several years later, the Eighth Circuit ruled the discovery was not inevitable and ordered another retrial without the body as evidence. Only a narrow 1983 decision by the U.S. Supreme Court finally made the conviction stand.
The effect of this dithering was twofold. It both undermined law enforcement and emboldened criminals. Miranda was not the most important case. Even more critical was Mapp vs. Ohio (1961), which established the “exclusionary rule,” saying that physical evidence obtained through an improper search must be excluded from trial. This can include murder weapons, bloody clothing and even dead bodies. (In the Powers case, the body was excluded under this rule.) As a result, casual readers of newspaper accounts of these “evidentiary hearings” often know far more about the circumstances of the case than the jury sitting at trial.
Perhaps not coincidentally, crime rates, which had been declining steadily since the 1930s, took flight after 1966, quickly reaching heights never before seen in American history. Murder rates tripled and remained at that general level until 1993, when the introduction of “broken windows” hypothesis of policing by New York Mayor Rudy Giuliani finally set off a national trend that brought crime back to early 1960s levels. (“Broken Windows,” first described in a 1984 Atlantic Monthly article by James Q. Wilson and George Kelling, said that police should put as much effort into maintaining public order as in solving individual crimes. It essentially constituted a return to pre-Warren Era policing.)
From 1966 until 1996, approximately 500,000 more Americans were murdered than would have been if crime rates had stayed at their 1960s levels. It would be no exaggeration to say that Americans experienced a 30-year “Crime War,” suffering 500,000 casualties. It may not be difficult to remember how big a part crime played in the political arena, but recall that Mike Dukakis essentially lost the 1988 Presidential election when he gave a mealy-mouthed response to CNN anchor Bernard Shaw’s question, “What would you do if Kitty Dukakis were raped and murdered?” Crime was always one of two or three top national issues.
Throughout this ordeal, liberals and jurists — and above all criminologists — insisted that the Warren Court decisions were having no impact. Criminologists are the strangest of all. They are the only people on the planet who believe punishment does not affect crime. Instead, they argue that all crime is determined by demography, specifically the size of the crime-prone 18-to-26 cohort. The 1960s and 1970s did see a “youth bulge” in the Baby Boom, but the drop in crime since 1993 has had no correlation to population statistics. Poverty and “root causes” are also part of the mix but policing plays no part.
Now 40 years later, facing an entirely new threat of international terrorism, the attorney general of what is probably the most doctrinaire liberal administration in American history has decided maybe policing does make a difference after all. Only six months ago the same people were telling us we might be reading Miranda rights to enemy combatants captured on the battlefield. When Umar Farouk Abdulmutallab, a Nigerian citizen, bought a ticket to Detroit and tried to blow up the airplane, he was immediately “Mirandad” even though he was not a U.S. citizen. The protections of the Fifth Amendment were not just a pact among the American people — i.e., the Constitution — they were an ideal form of government we were about to impose upon the rest of the world.
Now Holder has changed his mind in the case of Faisal Shahzad, who is a U.S. citizen and arguably had a much greater claim than Abdulmutallab. It turns out Miranda wasn’t so innocuous after all.
A man of faith in a godless age is hitting Americans where it hurts.
Mr. and Mrs. American Spectator Reader, let P.J. O’Rourke talk sense to your kids.
In Britain, defending your property can get you life.
The debacle of this president’s administration is both a cause and a symptom of the decline of American values. Unless Congress impeaches him, that decline will go on unchecked. An eminent jurist surveys the damage and assesses the chances for the recovery of our culture.
It won’t take long for conservatives to scratch this presidential wannabe off their 2008 scorecard.
The American Christmas, like the songs that celebrate it, makes room for everybody under the rainbow. Is that why so many people seem to be hostile to it?
Was the President done in by the economy, or by the politics of the economy?
H/T to National Review Online