OBSCURED THOUGH THEY ARE by the constitutional fireworks over the interrogation issue, there remain nonetheless problems of the greatest importance about the governance of the police which should be, but have not been, faced by the ALI project. These issues are centered on the two areas of legislative superiority that I have mentioned earlier: the ability to distinguish between serious and trivial crimes in deciding what powers the police should have, and the ability to devise an adequate set of sanctions to deter police conduct in breach of the rules. Both of these potentialities for achieving decent legislative solutions were badly neglected in the ALI draft. The problem is best illustrated not by the glamorous confessions issue but rather by the more humdrum but far more basic question of the circumstances under which the police may stop and question people on the street without actually arresting them.
The prevalent dogma on this issue is summed up by Dicey in his Introduction to the Study of the Laws of the Constitution. Writing in 1885 with an ineffable air of Britannic self-congratulation, he said:
That anybody should suffer physical restraint is in England prima facie illegal, and can be justified (speaking in very general terms) on two grounds only, that is to say, either because the prisoner or person suffering restraint is accused of some offence and must be brought before the Courts to stand his trial, or because he has been duly convicted of some offence and must suffer punishment for it. Now personal freedom in this sense of the term is secured in England by the strict maintenance of the principle that no man can be arrested or imprisoned except in due course of law, i.e., (speaking again in very general terms indeed) under some legal warrant or authority, and, what is of far more consequence, it is secured by the provision of adequate legal means for the enforcement of this principle…
It is inherently improbable that this statement was true when made, if indeed it is to be taken as embodying an assertion of fact rather than value. Whatever the historical fact may be, Dicey’s dictum is clearly flouted several hundred times a day on the streets of London, New York, and every other large city in the English-speaking world (to mention only those parts of the globe in which Anglo-American ideals of personal liberty are paid lip service). It is flouted for the simpler reason that the police have to flout it in order to determine whether the orthodox grounds for arrest—reasonable cause to believe that the person has committed an offense—exist. And it is flouted as well for more dubious reasons: to prevent people from committing offenses when the police think they may be disposed to do so; to harass people whom the police wish to discourage even though they have not, on the specific occasion in question, committed an offense. Consider the ALI draftsmen’s favorite example: A policeman sees a man running with a heavy package in a deserted business district at 2 A.M. The policeman may suspect that something is amiss, but he certainly does not have reasonable cause to believe that the person has committed an offense. What is he to do? What he does is to stop the man, ask him to identify himself, ask what is in the package and where he got it, and keep the man, by persuasion or by force, from departing until the officer has satisfied himself that nothing sinister is going on. Or consider this example, not cited by the ALI draftsmen (very little on-the-street detention takes place late at night in deserted business districts): The police spot a woman who they know is a prostitute lounging on the street corner. They engage her in conversation, address a few insulting epithets to her, ask her for information about who has been pushing narcotics in the area, and finally tell her to move along if she doesn’t want to get arrested. In both cases, Dicey’s dogma has been flouted, but few (one hopes) would argue that it was anything but right to do so in the first case and anything but wrong to do so in the second.
THE PLAIN FACT is that the realities of crime control require that there be some middle ground between complete immunity from police interference with freedom of movement on the one hand and arrest, in the orthodox sense of being taken into custody to answer to a charge of crime, on the other. The problem of determining what that middle ground should be presents a neat paradigm of the problem of coercion in a free society. The ALI solution to the problem is a reasonable one, as far as it goes. It is to provide for a twenty-minute “investigative stop,” on the street or in any other place in which the police may be lawfully present, during which the police may stop, question, and search for dangerous weapons any person who either is thought to have knowledge about a crime that has been committed or is observed in circumstances that suggest that he either has committed or will commit an offense. If nothing turns up that would justify an arrest. the police must tell the person so detained that he is free to go at the expiration of the twenty-minute period. A very few minor offenses are excluded from the crimes for which this investigative stop may be used: misdemeanors punishable by less than thirty days’ imprisonment, vagrancy, and loitering. Otherwise its spectrum is as broad as the criminal law itself.
Now, as I have suggested, this kind of authority is necessary, and therefore should be openly rather than covertly exercised, in the investigation of possible serious offenses against person and property: murder, robbery, rape, burglary, and the like. It is quite another matter whether this kind of authority should be legitimated in the investigation of nuisance offenses: gambling, prostitution, narcotics addiction. For one thing, the social interests threatened by nuisance conduct are hardly so paramount as to require that the police have more power than the orthodox law of arrest confers upon them. For another, it is precisely with respect to offenses of this sort that the power to stop and question is most likely to be exercised sweepingly, indiscriminately, and abusively. As anyone familiar with police practices in urban areas, particularly in Negro slums, is well aware, a substantial part of law enforcement activity is directed not toward arrest and prosecution for nuisance offenses but rather toward harassment. The commission of these offenses is so clandestine and the surrounding circumstances so ambiguous that vast numbers of people in the streets of Harlem or of Watts may every day be “observed in circumstances which suggest” that they are “about to commit a felony or misdemeanor.” Is it wise to give the police such sweeping powers to stop and question? May not the regard of minority groups for the police be raised if the police are forced to restrict this kind of aggressive intervention into the daily life of the community to circumstances in which they are seen as protectors rather than as alien intruders?
All of this presupposes, of course, that the police are doing no more than they are authorized to do under the ALI’S proposals. They detain people politely, they question them no more than is necessary to elicit the specific information they seek, they do not search for weapons routinely but only when there is a sense of imminent danger, they release promptly at the end of the twenty-minute period. Sed quis ipsos custodes custodiet? The draftsmen of the ALI Code tell us that they intend to put “principal reliance” on the exclusionary rule as a sanctioning device. That is to say: if an “investigative stop” turns up evidence of crime, and if the person is tried for the crime, and if that evidence is sought to be introduced against him at the trial, and if it turns out that the “investigative stop” did not conform to legal requirements, then the evidence so obtained must be excluded from the trial. Very comforting, in the perhaps one out of a thousand illegal stops in which the end result is a criminal prosecution based on evidence produced by the illegal police activity. The sanction of the exclusionary rule is of course the sanction that has been there for the courts to use right along. It is not a very effective use of the resources of legislation to rely on the only sanction that a court can apply without the help of legislation, any more than it is a very effective use of legislation to ignore the differences in gravity among various crimes in deciding what powers to give to the police.
THE PROBLEM OF SANCTIONS is not an easy one. But it is in a very real sense the basic one. Unless means can be devised to bring the powerful machinery of the police process under some sort of effective outside scrutiny, our urban slums will continue to be miniature police states and the urban poor will continue to see the police as enemies. I do not suggest that they can easily be brought to see the police as friends. Not friends, perhaps, but inhabitants of the same society? There is much evidence that the police are not seen that way now.
How can the police be made responsive to the demands of libertarian values? The most obvious and most effective way is by changing the police: better education, better recruitment policies, better pay. One cannot reproach the ALI draftsmen for failing to legislate these. But one can reproach them for failing to take a few interim precautions pending the millennium when every policeman is a combination of Earl Warren, Benjamin Spock, and Martin Luther King. The need is to develop a few useful models of sanctioning devices that will help to promote a greater degree of police accountability than now exists. In the absence of the carrot, we must place our uncertain reliance on the stick.
Two kinds of sticks immediately suggest themselves. (I do not say that they exhaust the possibilities of human ingenuity.) One is some kind of right to file suit against the governmental unit which employs the policeman, accompanied by provisions for recovery of minimum or fixed damages, counsel fees, and the like. These provisions would be designed to reduce the present deterrents to lawsuits by victims of illegal police action. The strategy underlying this kind of device is to build respect for due process into the policeman’s model of efficiency. The policeman who persistently violates the norms costs his employers money and is therefore seen as inefficient. The other line of attack that immediately suggests itself is to create an administrative complaint and review structure designed to make the internal process of police discipline more responsive to values other than efficiency in police terms. The “civilian review board” provides a crude model of what might be designed, although one suspects that an imaginative social engineer could learn a good deal from Mayor Lindsay’s travail. Nor does it seem to me utopian to suggest that the ALI draftsmen, with the prestige and authority that they can muster, could make a start at convincing police organizations (although perhaps not Mr. John J. Cassese and his spiritual adviser, Mr. William F. Buckley, Jr.) that their present opposition to proposals designed to pry open the para-military system of police discipline is a case of a sinking ship firing on its rescuers.
Now, none of this—and particularly the designing of better sanctioning devices—is the sort of thing that comes naturally to the ALI, as is evidenced by their failure so far to come to grips with it. But it doesn’t at the moment seem to come naturally to anyone else who is in a position to do anything about it. The Supreme Court has not foreclosed the effort. All it has said to the ALI draftsmen in the Miranda opinion is that if a choice has to be made between all-or-nothing solutions to the interrogation problem (and, inferentially, to other problems of police power), the Court prefers its all-or-nothing solution to the ALI’S. If the draftsmen will get back to the drawing board with some attention to possible compromise solutions, all may not be lost. The effort does need to be made. If it is not, we are headed for very deep trouble indeed.
IN THE END, our salvation may lie in our willingness to see, and to act on the perception, that the tensions inherent in the police situation are exacerbated by the undue demands that we make on the criminal law. So long as we use that most coercive of legal weapons to cope with everything that we, or some of us, find disagreeable in our environment—with narcotics addiction, with gambling, with prostitution, with homosexuality, and now with the flight into the psychedelic universe—so long will we be condemned to endure the nastiness that is, in a large measure, the gist of “efficient” police work. It is no accident that all or almost all of the spectacular cases of unconstitutional searches and seizures, of entrapment and of electronic eavesdropping occur in the pursuit of criminals whose crimes do no visible injury and therefore evoke no complaints: the narcotics peddler, the numbers runner, the prostitute. One need not wait, as the ALI draftsmen seem to prefer, for the elimination of these offenses to question whether, even if they are to remain on the books, their prosecution justifies resort to measures as repulsive as those they evoke. The police are not to blame. They are only doing their job. The blame lies with those who have the responsibility to tell them what their job is and what tools they may use in doing it.
It is a melancholy chronicle, these failures of the past year. The Supreme Court, acting out of a sense of desperation, has clanged shut the iron gates of the Constitution. Seeking to be true to its values, it has been false to its institutional ethos. The American Law Institute has come up with a near-miss. Its code is a brilliant job of the lawyer’s art, flawed by too narrow a view of the problem at hand. Meanwhile, the country’s intellectual community lives in ignorance of the problem and, therefore, in ignorance of the urgency of devising solutions. What we need more than anything else is to see the problem whole in its social and political setting. Until the dimensions of the problem are known, adequate syntheses will be hard to come by. But we are beginning to get a few studies that provide facts and insight. Most of these are buried in technical publications but one or two are more readily accessible. There is, for example, Wayne LaFave’s Arrest: The Decision to Take a Suspect Into Custody (Little, Brown: 1965), which draws on observational material gathered some years ago by the American Bar Foundation’s Survey of the Administration of Criminal Justice. And there is Jerome Skolnick’s Justice Without Trial (John Wiley: 1966), an account by a sociologist based on his first-hand observations of the police process in a large California city. Skolnick’s book, in particular, is an example of the kind of studies that we badly need not only to educate the laity but also to inform proponents of reform measures, like the ALI draftsmen, about the dimensions of the problem that they seek to solve.
Books like these make a start at diffusing throughout the general culture that sense of what really goes on in the world of the police that has so far largely been confined to the police and the objects of their attention. And there will be the Report, early next year, of the President’s Commission on Law Enforcement, from which prudent men will expect less than they hope for. Reason can probably not, in the nature of the thing, prevail; but will it endure? A society that cannot live with or without its police is in a bad way.