Who Can Police the Police?

What may the police do to persons whom they suspect of committing crimes? What may be done to the police if they do what they are not supposed to do? The range of discourse implicated in these simple-sounding questions is broad, running as it does from the nicest technicalities of lawyers’ law to the most impalpable speculations about the uses of coercion in a free society. The pressure for answers has never been more strongly felt than it is being felt just now. And the competition to provide the answers, drawing into the pit institutions as diverse as the Supreme Court and the Patrolmen’s Benevolent Association, has never been more savage. Many people find the controversy deeply disturbing: They find in it evidence, depending upon their predilections, that our society is dangerously authoritarian or dangerously permissive or dangerously divided. I find in it evidence of a different proposition: that our society is becoming increasingly self-conscious about the paradoxes of coercion. This seems to me a good thing, because it focuses attention upon prime questions that political thought has tended lately to ignore. In the commonplace ugliness of the criminal process there is concealed the starkest example of a dilemma as old as political thought: quis ipsos custodes custodiet? Who will watch the watchers?

The problem of the police is given added poignance by our discovery of the urban poor who, by an interesting coincidence, turn out to be the principal objects of police attention. The War on Poverty, that odd by-blow of the civil rights movement, has forced us to confront what was there for the seeing all along: One of the most significant deprivations to which the poor are subject is their inability to cope when confronted with the demands of administrative bureaucracy. And we are being reluctantly forced to face the fact that the principal administrative bureaucracy of this kind is the police, as they go about the manifold jobs we have insisted upon entrusting to them. As I shall try to suggest, later in this essay, the trouble that the police and the rest of us are now in is largely the result of our improvident reliance on the criminal sanction to perform a lot of messy social tasks for which it is not especially suited.

Two important events that have occurred during the past few months illustrate, both separately and in their interaction, some of the dimensions of the police problem. One is the American Law Institute’s ambitious attempt to draft a model code of police practices. The other is the Supreme Court’s decision in Miranda v. Arizona, sharply limiting the circumstances under which the police may interrogate arrested persons and, incidentally, substantially thwarting the interrogation provisions of the American Law Institute’s model code. Because the interrogation problem is at once the most visible and the most controversial aspect of police practices (although not, in my view, the most significant), we may as well start with it.

WHAT THE SUPREME COURT held in Miranda is…

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