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.
EVEN GRAVER is the flaw in the Court’s sanction-fashioning power. If the Court does not like the way the police have behaved in extracting a confession it cannot discipline the offending policeman; it can only reverse the defendant’s conviction because of the error in admitting the improper confession. That isn’t much of a sanction, if what the Court is interested in doing is affecting police conduct. By contrast, the legislature can devise, ordain, and finance an elaborate disciplinary structure, create a claim against the public treasury on behalf of people subjected to illegal police procedures, or do any of a variety of other things directly and specifically adapted for the purpose at hand: seeing to it that the police have some incentive for obeying the rules laid down for their guidance.
Why, then, has the Court not wisely left the problem of policing the police where it so obviously belongs, in the hands of the law-makers? For the simple reason, of course, that the legislature has utterly abdicated its responsibility. Courts have to decide cases; legislatures do not have to pass bills. And the priority accorded to criminal law reform is very low indeed, except of course for creating new crimes and increasing the penalties for old ones. There is not on the books of a single American jurisdiction a comprehensive code of criminal procedure, regulating the intricate interrelations of the component parts of the criminal process and providing a sensible series of sanctions for breach of the rules thus laid down. And, to make matters worse, state courts have utterly failed to put any teeth in the few legislative enactments that bear on the problem, such as statutes requiring prompt arraignment after arrest and access to one’s retained lawyer. That is the law-making and law-enforcing vacuum into which the Supreme Court has seen itself as having to move. Quis ipsos custodes custodiet? If not the Court, then nobody.
The Court’s performance in the criminal procedure area has been, in my view, an increasingly unsatisfactory one as its constitutional dictates have become more legislative in tone. Miranda and its companion cases are particularly disturbing in this regard. Having created by fiat a brand-new constitutional absolute, the application of the privilege against self-incrimination in the police station, the Court has discouraged rational inquiry into how important to the criminal process the interrogation of suspects actually is and what measures can be devised to insure that suspects are apprised of their rights and enabled to exercise them without destroying whatever justifiable interest society may have in the use of interrogation. It happens that we know next to nothing in a systematic way about the facts on which such value judgments ought to be premised. We don’t really know whether rules like the ones the Court has just laid down will substantially impair the interrogation process or whether other forms of investigative work can take up the slack. The new rules will presumably have less drastic impact in cities like Detroit, where the police have for some time been advising arrestees of their rights, than in more backward places. And the absence of effective legal aid for the indigent suspect that continues to characterize much of the South will make adjustment to the dictates of Miranda acutely painful. All of which underlines the difficulty of generalizing about the facts, the complexity of the problem facing the Court, and the simplistic character of its solution.
The Court, it hardly needs to be said in this age of the knowing smirk, is not impervious to political influences. Indeed, its performance in the confession cases is in one respect—its treatment of the retroactivity problem—so nakedly political as to make Congressional log-rolling over the Rivers and Harbors Bill seem positively high-minded. The new constitutional interrogation rules would, under normal judicial procedure, apply to all cases now pending before the courts on appeal. Consider the situation of the thousands of criminal defendants who were convicted on the basis of confessions obtained by police interrogation that did not conform to the new rules and whose convictions were still pending on appeal at the time the Supreme Court decided Miranda and its three companion cases. What distinguishes their cases from Miranda? Nothing but the fortuity that the four cases selected by the Court as the vehicle for announcing its new rules were not their cases. Indeed, as to approximately 110 such defendants, there was not even the tenuous distinction that they had not sought review in the Supreme Court, for that number of petitions seeking review on the same ground as Miranda and the other three had been filed and were awaiting the Court’s decision whether to consider them on the merits. Even-handed justice clearly required that the new rules apply with the same force to all pending cases as to the cases of the lucky four.
WHAT EVEN-HANDED JUSTICE required the Court was unwilling to do. The week after Miranda, the Court decided in Johnson v. New Jersey that the new rules should apply only to cases in which the trial commenced after June 13, 1966, the date on which the decision in Miranda was announced. Simultaneously, it denied review of the approximately 110 cases pending on its docket which raised the same question, thereby leaving the convictions standing. This is legislation with a vengeance. What legislature, enacting a new set of rules for the conduct of police interrogations, would have the temerity to say: Our new rules apply only after June 13, 1966, unless your name happens to be Miranda, Vignera, Westover, or Stewart?
There is, of course, no mystery about why the Court acted as it did. The decision in Johnson is based on the proposition that retroactive application “would seriously disrupt the administration of our criminal laws.” Or to put it less euphemistically: We are in trouble if we turn all these criminals loose. The Court, in sum, managed to come up with a little something for everyone: for the libertarians, a shiny new set of rules designed to make life tougher for the police; for the police, absolution for past sins; for the lower courts, relief from a potentially oppressive workload. Lyndon Johnson, in his great days of legislative wheeling and dealing, could have done no better.
Among other things, the Court’s ruling in Miranda has temporarily jarred the American Law Institute’s attempt to frame a comprehensive code of prearraignment procedure as a model for legislative reform of the police phase of the criminal process. The American Law Institute, or ALI as it is generally known, is a small group of distinguished lawyers, judges, and legal scholars dedicated to making improvements in the law. Its Director is Herbert Wechsler, one of the half-dozen most distinguished legal scholars in this country. Its Council includes Henry Friendly, Erwin Griswold, Edward Levi, Carl McGowan, Roger Traynor, and Harrison Tweed. This is the Legal Establishment, the kind of Establishment that made the late Senator McCarthy madder than almost anything else: conservative, powerful, aristocratic, high-minded. No group is more likely to unite two necessary but discordant characteristics: the intellectual capacity to formulate rational proposals for reform and the prestige to get them accepted.
The ALI began its Model Code of Pre Arraignment Procedure in 1963, although work in earnest did not get underway until November, 1964. As is the custom when a project of this sort is started, the drafting was entrusted to a small group of “Reporters,” in this case four professors of law headed by James Vorenberg of Harvard, who subsequently became Executive Secretary of the President’s Commission on Law Enforcement and Administration of Justice while continuing his work as Reporter for the ALI project. An advisory committee of forty, mostly judges and law professors, but with a substantial infusion of law enforcement experts, assisted the Reporters in their work. The Reporters did not undertake or commission any independent factual inquiry into aspects of the police process, although the available empiric data are, to put it mildly, thin. Instead, they relied on personal knowledge, conversations with people thought to be knowledgeable, and, above all, on their own feel for the situation.
THE PROFESSED AIM OF THE ALI code in proposing a set of legislative solutions to the problems of police conduct was “to treat the process from first police contact until arraignment in a systematic and consistent manner.” And there is little doubt that their first tentative draft, published in March of this year and discussed at the annual ALI meeting in May, does just that. This code, with its detailed provisions on the investigation of crime, arrest, disposition of arrested persons, and interrogation during custody represents an enormous improvement over the chaotic, archaic, and largely unarticulated fragments of law that govern the police process at present. Unfortunately, two circumstances—one external, the other internal—combined to damage this promising effort.
The external circumstance was the realization, which overhung the project from the start, that the Supreme Court was rapidly evolving its own set of standards for the important problem of police interrogation and that the Court was likely to foreclose or at least severely restrict any comprehensive legislative effort by its own work. The draftsmen of the ALI Code had their own ideas about how the interrogation problem should be handled. They agreed that an arrestee should be informed of his right to remain silent and to have a lawyer. They also agreed that his lawyer should be able to have access to him on his request, but did not think that interrogation should be absolutely barred before the arrival of counsel. And on the issue of central practical importance, they did not think that the state should have an affirmative obligation to supply a lawyer to a person who wished to have one but was financially unable to retain one.
It seems fair to say that the ALI draftsmen saw the interrogation problem as crucial, and that they were consequently preoccupied with the problem of getting their views on record before the Supreme Court acted. To an outside observer, it appeared that they perceived themselves as being involved in a race to the courthouse, designed to persuade the Court that there was a reasonable alternative to “constitutionalizing” the whole problem of police interrogation. In retrospect, this tactic appears to have been a mistake. A few caustic remarks from the bench during the argument of the Miranda group of cases indicated that the very justices to whom this appeal for restraint was addressed were not much disposed to pay any attention to it. And, as we have seen, the eventual disposition of these cases put the ALI draftsmen in the embarrassing position of having advanced proposals which the Supreme Court immediately thereafter branded as in some respects unconstitutional.
Not only did the draftsmen fail to convince the Supreme Court, they also failed to convince the membership of the ALI. That the Miranda cases were pending at the time of the annual meeting in May pretty much aborted any discussion of the proposals on the merits. More subtly, the failure of this race to the courthouse may have infected the draftsmen with a sense of bitterness and frustration, which now seems to be expressing itself in an exaggerated notion of how badly the entire enterprise has been damaged by their having come off second-best in this skirmish with the Supreme Court. One can only hope that this mood will not prevail, for there is much useful work that remains to be done.
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.
September 8, 1966