Handcuffing the Cops: Miranda's Harmful Effects on Law Enforcement

Policy Reports | Crime

No. 218
Saturday, August 01, 1998
by Paul G. Cassell

Assessing the Impact of Miranda

Has Miranda handcuffed the cops? The answer turns, of course, on what one means by handcuffed. Our analysis does not support extreme detractors of Miranda --who predicted immediately after the decision that law enforcement would grind to a halt. But Miranda's pragmatic critics today make a more modulated claim: that the decision has seriously impeded police effectiveness in ways that could be avoided through reasonable changes in the Miranda rules.

The Costs to Police Effectiveness. The evidence collected here supports this more tempered argument. In particular:

  • The before-and-after studies show that substantial numbers of criminal convictions are lost every year.
  • The clearance rate regression shows that large numbers of cases are never solved because of Miranda.

To put Miranda's costs into some perspective, one might compare them to the costs of the Fourth Amendment exclusionary rule, long considered a major-if not the major-judicial impediment to effective law enforcement. In creating a "good faith" exception to the exclusionary rule, the Supreme Court cited statistics tending to show that the rule resulted in the release of between 0.6 percent and 2.35 percent of individuals arrested for felonies.34 The Court concluded that these "small percentages ... mask a large absolute number of felons who are released because the cases against them were based in part on illegal searches or seizures." The before-and-after studies and clearance rate data suggest that Miranda's costs are higher than those of the exclusionary rule. It is also virtually certain that these costs fall most heavily on those in the worst position to bear them, including racial minorities and the poor.35

A final way of showing Miranda's harm is through the truism that a policy with no benefit imposes costs that are too high. If Miranda's costs can be reduced or eliminated without sacrificing other values, they should be - and as quickly as possible. What converts Miranda's harm into tragedy is that these uncleared crimes are largely unnecessary.

"Genuinely coerced confessions were already rare at the time of Miranda."

Police Coercion: A Declining Problem. Sometimes it is argued that clearance rates declined after Miranda for a good reason: the police were forced to abandon unconstitutionally coercive questioning techniques. On this view, declining clearance rates measure not the social cost of criminals unfairly escaping, but rather the social benefit of police abandoning impermissible questioning techniques. This explanation is far-fetched for several reasons.

First, genuinely coerced confessions were, statistically speaking, rare at the time of Miranda. It appears to be common ground in the literature that, as the result of increasing judicial oversight and police professionalism, coercive questioning methods began to decline in the 1930s and 1940s.36 By the 1950s, coercive questioning had, according to a leading scholar in the area, "diminished considerably."37 When the Supreme Court began issuing more detailed rules for police interrogation in the 1960s, it was dealing with a problem "that was already fading into the past."38 Chief Justice Warren's majority opinion in Miranda, while citing the Wickersham Report and other accounts of police abuses, acknowledged that such abuses were "undoubtedly the exception now" and that "the modern practice of in-custody interrogation is psychologically rather than physically oriented."39 At about the same time, the President's Commission on Law Enforcement and the Administration of Justice reported that "today the third degree is almost nonexistent" and referred to "its virtual abandonment by the police."40 The empirical surveys provide good support for Professor Gerald Rosenberg's assessment: "Evidence is hard to come by, but what evidence there is suggests that any reductions that have been achieved in police brutality are independent of the Court and started before Miranda."41

Beyond the relative infrequency of unconstitutional interrogation techniques, the Miranda rules themselves were not well tailored to prevent coerced confessions. Justice Harlan's point in his Miranda dissent has never been effectively answered. He wrote: "The new rules are not designed to guard against police brutality or other unmistakably banned forms of coercion. Those who use third-degree tactics and deny them in court are equally able and destined to lie as skillfully about warnings and waivers."42 It is not clear why police using rubber hoses before Miranda would have shelved them afterwards - at least in the generally short time period following the decision during which the confession rate changes were observed.

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