Imagine if Bush were saying this.
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Is there a lesson in all this? I’d say there are two:
• First, it’s time to admit that Miranda has exacted a price on the American citizenry and that price has been more crime.
• Second, now that we have decided Miranda is not irrevocable, maybe it is time to go back and look at the exclusionary rule of Mapp vs. Ohio as well.
The truth is, Miranda has been fairly well incorporated into police procedures. Police officers don’t complain about it too much anymore. The reason is that, even after they have been given their warnings, many criminals are more than willing to talk to the police anyway. There are a variety of reasons: 1) they have an exaggerated sense of their own cunning and believe they can outwit the police; 2) they see keeping silent as an admission of guilt (which of course it is); 3) they are eager to find out what the police already know about them; 4) they don’t trust their court-appointed lawyers; and, perhaps most important, 5) they feel a sense of guilt and are eager to get the matter off their chest.
This is the one thing the Warren Court never considered. Confession has a healing effect. It allows the criminal to rejoin the human race. It isn’t easy to live a lie. Police detectives say that often an accused criminal will keep up a frenetic monologue for hours on end, all the while professing his innocence, and when he finally confesses he will go back to his cell and sleep like a baby for twelve hours. Confession is good for the soul.
Instead, the main impact of Miranda occurs days and weeks later when the psychological relief has faded and the criminal begins to face the consequences of his confession. “Why did I ever do that?” he asks. By this time his defense attorney has entered the picture and helps him concoct a story. The police didn’t read him his Miranda rights. He didn’t understand them. The police burned his arms with cigarettes. They threatened to kill his mother. Hardly any confession goes unchallenged in court these days, always on the grounds of some Miranda violation — even when confessions are videotaped. Few are excluded but it is just one more uncertain ritual of the justice system.
Where Miranda makes a difference is in gang violence and organized crime — which is essentially what we are facing with radical Islam. Experienced criminals will quickly clam up and make it difficult to trace their web of associations. The only option is to offer them leniency in exchange for their cooperation. This was what the Obama justice department originally suggested with the Christmas bomber — until it realized that plea-bargaining an attempted mass killing down to a misdemeanor for creating a public disturbance was not likely to sit well with the public. And so the Justice Department has finally decided it wants to suspend Miranda in terrorism cases.
Far more consequential, however, would be to reconsider the exclusionary rule of the Fourth Amendment. The whole process of search-and-seizure has become paralyzed over interpretation of its meaning:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
In the early days after Mapp, evidence was excluded because the police had not obtained a warrant. This was understandable since before Mapp the Fourth Amendment only applied to the federal government while most investigations take place in the states. Once issuing warrants became routine, however, defense attorneys began pecking away at them on technicalities. Convictions were overturned because a warrant had listed a wrong address or misspelled a name. In one famous case, a murderer went free because the judge had written the warrant on a wrong legal form.
Then attorneys began focusing on the phrase “describing… persons or things to be seized.” What constituted a proper description? In a case that finally reached the U.S. Supreme Court, the conviction of a Boston murderer had been overturned because the warrant had specified searching for “a woman’s jacket,” “wire and rope that match those on the body” and “a blunt instrument that might have been used on the victim.” Instead police found “a pair of bloodstained boots,” “a woman’s earring with bloodstains on it” “three types of wire” and “a woman’s hairpiece subsequently identified as the victim’s.” The Massachusetts Supreme Court ruled the description in the warrant was not adequate. In 1984 the U.S. Supreme Court finally used this case to carve out a “good faith exemption” to the exclusionary rule.
Since then, Fourth Amendment challenges have concentrated on the phrase, “probable cause.” What constitutes “probable cause” for initiating a search? Is it an experienced policeman’s suspicions that something is wrong? Is it a reasonable surmise that a person is about to commit a crime? Not a chance. Hunches don’t count. Instead, the police must wait until a crime is being committed before investigating.
All this came home to roost in August 2001 when the FBI arrested Zacarias Moussaoui, a French national who had aroused suspicion when he was taking flight classes in Minneapolis. Moussaoui was held for having an expired visa. He also had a laptop computer. FBI officials in Minneapolis wanted to look into his computer and search his room but were told by supervisors in Washington that they lacked “probable cause.” “All you’ve got is a guy with an expired visa taking flying lessons,” was the response. “Where’s the crime?” Minneapolis officials complained bitterly that “somebody better do something before this guy flies an airplane into the World Trade Center.”
Moussaoui was the “20th hijacker.” On his computer were contacts that could have led FBI officials to other members of the September 11th conspiracy. Because there was no “probable cause,” however, his hard drive remained unopened and nothing was discovered.
Now there was a crime that might have been worth preventing.
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Mr. and Mrs. American Spectator Reader, let P.J. O’Rourke talk sense to your kids.
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