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 that the police may not interrogate a person in custody until he has been advised that he has a right to remain silent and to consult a lawyer; that if he indicates a desire to remain silent the interrogation must cease; that if he indicates a desire to consult a lawyer the interrogation must be suspended until his lawyer appears or, in the case of a person unable to retain a lawyer, until a lawyer has been supplied for him; and that if interrogation does continue without the presence of a lawyer and a statement is taken, “a heavy burden rests on the Government to demonstrate that the defendant knowingly and intelligently waived” the rights thus conferred upon him. There is no doubt that these new standards will interfere to some extent with police efficiency in criminal investigation. Some arrestees—no one knows how many—who would previously have talked will now remain silent.
In so holding, the Court not only laid down far more restrictive standards for police conduct than have so far prevailed; it also made a final break with its exercise of the traditional judicial role in confession cases. That role has simply been to determine, on a case-by-case basis, whether the defendant’s statement, taken in the police station and later introduced into evidence at his trial, was “involuntary” and hence excludible under the Fourteenth Amendment. Why did the Court abandon its traditional approach for a set of external criteria having little if anything to do with the individual case? It is true that law enforcement officials had voiced deep dissatisfaction with the old approach, which involved the application of a somewhat nebulous standard—“involuntariness”—to the highly particularistic facts of a series of different cases, and therefore lacked predictive value. (Most law enforcement people would now give their eye-teeth for a return to the old approach.) But that is not what troubled the Court. What troubled it, as is apparent from a reading of Miranda and its precursor, Escobedo, was the lack of any evidence that the police were getting the message. As the cases kept coming up from the state courts in ever-increasing numbers, it became apparent that reversing a few (or even a substantial number) of state criminal convictions each year was not having a conditioning effect on police practices. Furthermore, the amount of time and effort involved in determining the impalpable issue of “involuntariness,” often in the face of almost impossible tangles of argument about what really happened, came to seem more and more formidable.
One may well ask what business the Supreme Court has trying to educate (or discipline) the police. Is its function any more than to right wrongs in the particular cases that come before it? A powerful argument can be made that the Court ought to stick to that last. Certainly it functions better when it does, for reasons which we will have to explore. But the Court has chosen a different and broader role in the handling of criminal cases. And it has not done so for indefensible reasons. The plain fact is that the Court is in the business of policing the police because nobody else is and because in a society that likes to think of itself as “free” and “open” someone has to do the job.
WHO ELSE COULD? The police themselves might, but they have not. The great leap forward in police administration during the past generation has been the rationalizing and professionalizing of police work along classic Weberian lines. Corruption has been eliminated or sharply reduced, efficiency has been increased. These are admirable achievements but they are irrelevant to current concerns. The revolution in expectations among urban minority groups and the due process revolution in the courts will not be satisfied with efficiency. Indeed, the dictates of efficiency—assembly-line arrest and screening processes, swift and thorough searches of private premises, psychologically sophisticated interrogations, electronically advanced eavesdropping—frequently clash with the very values of human autonomy to which the critics of the police wish to see more attention paid.
That is not to say that the enlightened self-interest of the police might not be served by more attention to these efficiency-impairing values—I think they would—but simply that the attention has not so far been forthcoming. Indeed, the leading apostles of police professionalization—the J. Edgar Hoovers, the William Parkers, the Orlando Wilsons—are also the leading opponents of what the courts have been doing. There is no evidence that they would do it themselves. And that is not too surprising. Who ever supposed that the watchers would watch themselves if otherwise unwatched?
Who else, then? The legislature? That seems more plausible. As compared with the Supreme Court, the legislature (by which I mean generically the Congress and the legislative bodies of the states) has far greater institutional competence to deal with the intricate problems of laying down rules for the governance of the police and sanctions for their breach. The legislature has fact-finding facilities that the courts do not have. A court is not a programmatic institution; its mission is to decide cases according to law. And in the area of criminal procedure, the only source of law for the courts to apply is the Constitution, whose spacious imperatives can hardly be mistaken for a detailed code of criminal procedure. Most significantly, the legislature is in a far better position to do two things that lie at or near the heart of the police problem: to adjust the extent of powers given to the magnitude of the interests protected by the criminal law; and to devise adequate sanctions for breach of whatever rules it chooses to lay down for the governance of the police.
We will need to take a more detailed look at these two areas of legislative superiority when we come to assess the achievement of the American Law Institute’s model code. It is perhaps enough for the moment to point out why in these two respects the legislature is a preferable forum to the courts for resolving problems of the sort typified by the confession issue. Imagine two men accused of crime. One is charged with murder; the other with, let us say, taking illegal bets. Let us suppose that for some reason the police want to interrogate both of them, and the question is—under what conditions and subject to what restraints should they be entitled to do so. It hardly requires argument that a relevant consideration (I do not say necessarily the decisive one) is the seriousness of the conduct with which our two arrestees are charged, the magnitude of the social interest that each has allegedly invaded, the gravity of the danger that each may be thought to pose. A legislature, making a typical legislative compromise, might well conclude that more latitude should be given the police in investigating crimes that pose serious threats to the most basic of social interests than to nuisance offenses like gambling. Such a conclusion would not be open to the Supreme Court as it goes about its business of interpreting the Constitution. In the absence of a legislative judgment to the contrary, either the privilege against self-incrimination and the right to counsel secure all arrestees against interrogation in the absence of counsel or they secure no arrestees. Justice Jackson, in one of those flashes of unjudicial candor which make his opinions such a joy to read, once remarked that he would be much more willing to allow the police to set up a roadblock to catch a kidnapper and save his victim than to trap a bootlegger and salvage a few bottles of bourbon. He meant: if I were a legislator rather than a judge. A judge interpreting the Constitution cannot, or at least cannot overtly, make discriminations of that kind. The “constitutionalizing” of the rules of criminal procedure militates against that kind of adjustment, as the rules laid down in the Miranda case show. So far as police interrogation is concerned, kidnapping and bootlegging are now on a par.