American Civil Liberties Union Briefing Paper Number 2
CRIME AND CIVIL LIBERTIES
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
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
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
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
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
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
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
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
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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