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.

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.

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.

Today, with the benefit of 30 years of interpretations, we know the Miranda mandate is not a constitutional requirement. ⁴³ Specifically, the Court has held that Miranda rules are only safeguards whose purpose is to reduce the risk that police will violate the Constitution during custodial questioning. This means that the Miranda rules can be changed without impinging on the Fifth Amendment - without, that is, compelling a defendant to witness against himself. Typical of this line of cases is Michigan v. Tucker,⁴⁴ in which the court explained that Miranda established a "series of recommended 'procedural safeguards.' ... The [Miranda] Court recognized that these procedural safeguards were not themselves rights protected by the Constitution but were instead measures to insure that the right against compulsory self-incrimination was protected." ⁴⁵

What Miranda Requires. The Court has based these safeguards on a purely pragmatic, cost-benefit assessment. The Court has specifically stated that the Miranda rules rest not on constitutional requirement but rather are a "carefully crafted balance designed to fully protect both the defendant's and society's interests." ⁴⁶ While the Court has never said precisely what costs it is willing to tolerate in this cost-benefit calculation, it has likely understated their magnitude, as the new evidence presented in this study demonstrates. The Court's calculation of Miranda's costs and benefits becomes even more problematic when the possibility of reasonable, less harmful approaches to regulating police questioning is factored in. When the Court announced Miranda in 1966, significant efforts to reform the rules regarding interrogations were under way. ⁴⁷ The decision itself seemed to invite continued exploration of such alternatives, promising that "[o]ur decision in no way creates a constitutional straitjacket which will handicap sound efforts at reform." ⁴⁸

Exploring Alternatives. The Court's promise has proven to be an empty one. In the three decades since Miranda, reform efforts have been virtually nonexistent. The reasons are not hard to imagine. No state is willing to risk possible invalidation of criminal convictions by using an alternative to Miranda.

The failure to explore other approaches cannot be attributed to lack of viable options. For example:

• The states might be permitted to videotape interrogations as a substitute for the Miranda procedures.

• The states might be allowed to bring an arrested suspect before a magistrate for questioning. ⁴⁹

• The Court might simply abandon the grand social experiment of Miranda and return to the long-standing "voluntariness" test for the admissibility of confessions. ⁵⁰

Questioning under the supervision of a magistrate would offer more judicial oversight than Miranda, but might be structured so as to result in more evidence leading to conviction. But, as with videotaping, because of constitutional issues lurking in the background and the Court's failure to indicate whether this might be a permissible alternative to Miranda, this approach has remained nothing more than hypothetical for criminal procedure professors.

Finally, the voluntariness test that was the prevailing approach to assessing confessions in this country for almost two centuries is supported by the notion that Constitutional interpretation ought to be consistent with the framers' intent. The voluntariness standard is also supported by an explicit though largely untested congressional directive, making it the touchstone for admitting confessions in federal cases. ⁵⁴

The evidence collected here argues in favor of earnestly considering these alternatives to Miranda. Justice Harlan's dissenting opinion warned that the new rules were "a hazardous experimentation" with the country's safety whose full effects "only time could tell." ⁵⁵ The experiment's results are now in. The data suggest that Miranda has seriously harmed society by hampering the ability of the police to solve serious crimes. Indeed, based on crime clearance rates, Miranda may be the single most damaging blow to the nation's crime-fighting ability in the last half century. In short, it appears that Miranda has, as its critics charge, "handcuffed the cops." It is time to consider removing those shackles and regulating police interrogation in less costly ways.