Crime and civil liberties

American Civil Liberties Union
Briefing Paper Number 2

Violent crime is a major problem in the United States. Indeed, the violent crime rate rose 61 percent nationwide over the last two decades, making the U.S. one of the most dangerous countries in the industrialized world to live in. Americans are seven to ten times more likely to be murdered than the residents of most European countries and Japan. Government's inability to make headway in the effort to solve this intractable problem, despite high-tech policing, stiffer sentencing, massive prison construction and the return of the death penalty in many states, has increasingly frustrated a fearful American public.

Given the failure of the "get tough" measures of the 1970s and early '80s to significantly reduce the crime rate, some of our politicians have turned to scapegoating the Constitution. They claim that civil liberties "technicalities" are tying the hands of the police and freeing criminals to commit more crimes. But tough-sounding rhetoric and attacks on the Constitution are no solution. The sacrifice of basic liberties, rather than making us safer, will make us less free.

The American Civil Liberties Union is opposed to "crime fighting" proposals that would expand governmental power at the expense of the rights of innocent people. Effective law enforcement and individual rights are not at odds. We can, and must, have both.

Here are the ACLU's answers to some frequent questions posed by the public about crime and civil liberties.

Why should criminals enjoy special rights at the expense of the rest of us?

Those "criminal's rights" we so much about are, in fact, among our most basic liberties: the right to be presumed innocent until proven guilty. The right to protected from unreasonable searches and seizures. The right not to incriminate oneself. The right to a speedy and impartial jury of one's peers, with the assistance of legal counsel. The right to due process and equal protection of the laws. The right not to be subjected to excessive bail or cruel and unusual punishment. Our founders included these rights in the Bill of Rights, not to protect society's criminals, but to protect innocent people from the inevitable abuses of government power.

Imagine what our society would look like without such formal protections. Undoubtedly, it would resemble those despotic nations we so often criticize, where pre-trial detention, torture and kangaroo courts are used to suppress political dissent. The so-called rights of criminals belong to all of us and form the basis of our democratic system of justice.

Aren't constitutional technicalities like the Miranda warnings and the exclusionary rule responsible for letting violent criminals go free?

No. The Miranda warnings, named for the 1966 Supreme Court decision in the case of _Miranda v. Arizona_, protect a criminal suspect's Fifth and Sixth Amendment rights. As most Americans know from television and the movies, _Miranda_ requires that before the police interrogate a suspect, they must inform him or her of the right to remain silent and to have an attorney present. Prior to the 1966 decision, it was common practice for the police to extract involuntary confessions through both physical and psychological coercion.

Critics of the _Miranda_ decision call for its reversal on the grounds that it prevents police from obtaining confessions. But after more than 20 years of using the warnings, many police don't agree. Says the police chief of Cambridge, Massachusetts: "A s far as I am concerned, I don't find that _Miranda_ is a significant detriment to the solving of a case. Law enforcement people know that." A number of studies bear this out. In felony cases, between 40 and 50 percent of all suspects volunteer confessions in spite of the Miranda warnings.

The exclusionary rule was developed by the U.S. Supreme Court for federal criminal proceedings in 1914 and extended to the states in 1961. It says that any evidence seized in violation of the Fourth Amendment's prohibition against "unreasonable searches and seizures" cannot be introduced at trial. Like the Miranda warnings, the rule was adopted to deter unconstitutional police practices -- in this instance, warrantless searches of people's homes, possessions, and persons. Detractors claim that the exclusionary rule should be abolished because it allows large numbers of criminals to escape punishment.

But recent studies show the opposite. A four-year study of the criminal court system in three states found that the exclusionary rule was involved in only a small number of cases (mainly non-violent drug cases). Moreover, motions to exclude evidence were overwhelmingly turned down by the courts. According to the study, if the rule were done away with, conviction rates would rise by less than .5 percent.

The police, after more than 25 years of experience with the exclusionary rule, are just as comfortable with it as with the Miranda warnings. "I would not do anything to the exclusionary rule," says the head of the Chicago Police Department's Narcotics Section. "In my personal opinion, it is not a detriment to police work. In fact, the opposite is true. It makes the police department more professional."

Shouldn't criminal defendants be locked up before trial so they won't commit more crimes while free on bail?

No. Locking criminal defendants up _before_ trial -- what's called preventative detention -- tramples on one of our most fundamental rights: the right to be presumed innocent until proven guilty. The Eighth Amendment guarantees the right to reasonable bail except in cases of murder, a capital offense. The presumption of innocence means that judges, in deciding on bail, may not consider the issue of guilt, but only whether a defendant might flee the jurisdiction if released. The purpose of bail is not to punish, but to guarantee a defendant's presence at trial.

Some "get tough" advocates have long pressed for preventative detention, and some states and the federal government have enacted laws authorizing judges to deny bail to defendants deemed "dangerous to the community." The ACLU opposes these laws because they are both unconstitutional and ineffective as crime-fighting measures.

The concept of preventative -- or, more accurately, pre-trial -- detention is based on two assumptions: First, that significant numbers of criminal defendants commit further serious crimes while free on bail; second, that it is possible to accurately predict who those defendants will be. Although we've all heard lurid stories about the accused rapist who, freed on bail, goes forth to commit another rape the same day, such occurrences are really the exception rather than the rule. In a 1981 U.S. Department of Justice study of eight sites around the country, only 1.9 percent of all defendants released before trial were later imprisoned for serious crimes committed while out on bail.

The second assumption is even more faulty. Neither judges nor psychiatrists can make accurate forecasts of future dangerousness. Human behavior is just too unpredictable. In practice, preventative detention invariable ends up being applied to many who would not have committed additional crimes if released, and releasing the few who are actually dangerous. Pre-trial detention is a profoundly anti-democratic measure that does not work.

Instead of being soft on criminals, shouldn't judges impose stiffer sentences so that people will think twice before committing a crime?

Behind the myth that judges are too soft-hearted in their sentencing practices lies the reality that people are too often deprived of their liberty. The United States imprisons more people per capita than any other industrialized country except South Africa and the Soviet Union. And harsh sentencing is now the rule, with American sentences tending to be much longer than those imposed for similar crimes in the other developed nations. In the past decade, more than 30 states have enacted mandatory sentencing laws requiring judges to impose stiff sentences for a wide range of crimes. Under Indiana's law, for example, a second-time shoplifter must be sentenced to two years in prison.

These laws have resulted in massively overcrowded prisons and clogged court systems. But, as with so many other quick-fix measures, longer sentences have not reduced the crime rate. The New York State prison population soared from 12,500 in the 1970s to 40,000 in the mid-1980s, while the crime rate remained about the same.

Long prison sentences do not deter the commission of crimes for a very simple reason: The vast majority of offenders (an estimated 85 percent) are never caught and so are never brought into public view for sentencing. The trouble with our criminal justice system, therefore, is not soft sentencing but inadequate apprehension. The crime-prone person is more likely to take incentive from the favorable odds of not getting caught than to be deterred by stiff sentences meted out to a few.

If the sentence is death, even a hardened criminal might not want to take chances -- so shouldn't we execute more people to deter would-be murderers?

No. The deliberate killing of a human being has no place in a society that calls itself civilized and humane. Indeed, historically, the trend is towards elimination of the death penalty, and Canada and all the countries of Western Europe have abolished it. The ACLU opposes capital punishment because we believe it's a barbaric practice that, by today's standards, constitutes cruel and unusual punishment in violation of the Eighth Amendment. We also oppose it because it's applied in a discriminatory way. Black people convicted of killing whites are far more likely to be sentenced to death than are white killers or killers of either race whose victims are black.

The U.S. Supreme Court, however, has ruled that the death penalty does not violate the Constitution, and the American public today overwhelmingly favors it. Over 1,500 people are currently on death row in the almost 40 states that permit executions.

The Supreme Court's decision and public opinion derive largely from the mistaken notion that the death penalty deters life-taking crimes. No persuasive evidence exists to support this belief. Death penalty states do not have lower rates of criminal homicide than non-death penalty states. In fact, while in 1984 most of the country experienced a decline in homicide rates, Florida, where the highest number of executions took place, had a 5.1 percent _increase_. It's no mystery why the death penalty fails to deter most murders: The vast majority are committed in the heat of passion and/or under the influence of alcohol or drugs.

The ACLU will continue to work through the courts and the legislatures for abolition of the death penalty.

What about the victims of crime -- don't they have rights too?

Yes, victims of crime, traditionally the "forgotten people" in the criminal justice system, have certain rights and should be treated far more humanely than is the custom. Perhaps the most common criticism voiced by crime victims is that they are neglect ed by the police after filing their initial complaint and are rarely informed as to the progress of any criminal investigation and, if the offender is caught, of the course of the prosecution. Counseling should be available to those victims who desire it. And states should compensate victims who have suffered economic loss as a consequence of crime.

What can be done about crime that doesn't violate our constitutional rights?

Policing reforms. The weakest link in the criminal justice system is our front line against crime -- the police. In most large cities, the police manage to make arrests in only 15 to 20 percent of the felonies reported to them. But just hiring more police is not enough. Relations between the police and the communities they serve must be improved. Only if the citizens trust the police will they provide the kind of information needed to solve an deter crimes. Relations could be improved by an increase in the number of minority officers to better reflect the racial composition of communities, and by more rigorous police training to achieve greater professionalism.

Decriminalization of drugs. This is a radical proposal, but one that is bound to gain support. More than any other single measure, the decriminalization of drugs would reduce street crime and unclog the courts and prisons. In New York State, for example, the number of inmates serving time for drug-related offenses (that is, sale and possession, which are both non-violent crimes) now surpasses the number imprisoned for any other type of crime. And that doesn't include the many inmates who committed robberies and burglaries to get money for drugs. There's no getting around the fact that drug abuse, a problem many experts believe is medical and not criminal, fuels the crime that both victimizes the public and enriches a thriving underworld industry made possible by drug criminalization laws.

Prison alternatives and reform. Since prison space is expensive and scarce, the total deprivation of liberty should be a punishment of last resort that is reserved for the most dangerous criminals. The majority of prisoners in the U.S., who are not behind bars for crimes of violence but for property crimes, would be good candidates for alternative treatment such as well-supervised probation, community service and restitution programs.

Sentencing alternatives already in existence have been very successful. Offenders engage in meaningful work, receive educational and vocational training and cost the state far less than if they were doing time. The recidivism rate of offenders in alternative programs is no greater, and is substantially lower in some cases, than that of ex-convicts.

Prisons should be primarily for violent offenders -- and they must be humane. Inhumane prisons simply reinforce criminality, releasing back into the streets people who've become more anti-social and more crime-prone than they were before incarceration.

Crime prevention. A serious anti-crime strategy must deal, first and foremost, with the root causes of crime -- persistent poverty, lack of educational and employment opportunities, racial discrimination and social alienation. Calls for "law and order" and the scapegoating of civil liberties are much easier than acting to ameliorate the conditions that foster crime, but such approaches will not make our society safer. As long as we are a society of haves and have-nots, we will continue to be plagued with crime, no matter how many police are deployed or how many new prisons are built.

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