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.
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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