Freeing the Police to Do Their Job

Commentary by Pete du Pont

Two years ago, a bad guy named Charles Dickerson voluntarily confessed to the FBI that he had robbed seven banks in Maryland and Virginia. Dickerson's lawyer, however, asked the court to suppress his client's freely given confession because the agents allegedly had "Mirandized" him too late. Throwing out a confession usually means that the guilty criminal goes free, and that would be the likely outcome in Dickerson's case. The district court duly suppressed the confession.

A few weeks ago, however, in a sudden outburst of sanity, a federal appeals panel reversed the lower court by a 2-1 vote, declaring that voluntary statements to federal law enforcement officials are admissible in federal court, whether the defendant was properly read his Miranda rights or not. The court relied on a long-dormant provision of the Omnibus Crime Control Act of 1968, section 3501, unambiguously passed by Congress directing that a criminal statement "shall be admitted" as long as the federal judge is confident that the suspect was not coerced in any way.

Today this welcome breath of sanity only applies in the fourth district-Maryland, North Carolina, South Carolina, Virginia and West Virginia-but its potential is enormous because an appeal will probably work its way up to the Supreme Court next fall. Then the Supremes will have a golden opportunity to get the Miranda decision right at long last. Undoing Miranda would stop a lot of injustice and social damage.

During the 1960s, the Supreme Court, led by Chief Justice Earl Warren, was busy carving out a lot of new rights for criminal suspects. Chief among them, as most viewers of TV cop shows know, were so-called Miranda rights.

In Miranda v. Arizona (1966), one of the most famous Supreme Court decision's of all time, a 5-4 majority ruled that the incriminating statements a criminal makes voluntarily cannot be used as evidence in court unless the suspect first had been advised of four rights: "You have the right to remain silent, Anything you say can be used against you in a court of law, You are entitled to an attorney, If you cannot afford an attorney, one will be provided to you without charge."

The warning was an extraordinary stretch of our Constitution's Fifth Amendment, which reads in relevant part, "No person shall be compelled in any criminal case to be a witness against himself." The decision immediately overturned the convictions of four career criminals, despite the fact that all had confessed voluntarily to their crimes. The Court five pontificated that the police warnings to the suspects were not all they should have been.

Dissenting Justice Byron White warned that "the Court's new code would markedly decrease the number of confessions, to require an express waiver by the suspect and an end to questioning whenever he demurs must heavily handicap questioning."

Has Miranda really harmed police efforts to solve crimes? Yes, badly. A definitive study for the National Center for Policy Analysis last year by Paul Cassell, a University of Utah Law School professor, found that:

In the two years following Miranda, confessions fell from about 60 to 45 per 100 arrests. As a result, the clearance rate for violent crimes dropped by 9 percentage points. (A crime is counted as cleared when police consider it solved-even if there is no conviction). Although these declines may sound small, they translate into as many as 152,000 fewer violent crimes and 357,000 fewer property crimes solved each year. The lower clearance rates caused by Miranda have never recovered. The costs of Miranda are concentrated among crimes like robbery, burglary and vehicle theft committed by professional criminals.

Professor Cassell, who won the appeals ruling in the Richmond, VA, court, says, "Miranda harms law enforcement, not by informing suspects of their right to remain silent, but by giving them the power to block any police questions." There are substitute measures that provide much better protection against police coercion and abuse, while at the same time allowing police to obtain more confessions from criminals. These include videotaped interrogations, questioning before a magistrate or simply returning to the historical "voluntariness" test where the courts have the discretion to exclude confessions deemed involuntary because of the totality of the circumstances.

A review of the Richmond case would give the Supreme Court an opportunity to correct a major cause of the explosion in crime during the late 1960s and subsequent years. A modification of Miranda would help protect us all against the threat of violent crime.

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The National Center for Policy Analysis is a public policy research institute founded in 1983 and internationally known for its studies on public policy issues.