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
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 "criminals' rights" we hear so much about are, in fact, among
our most basic liberties: The right to be presumed innocent until
proven guilty. The right to be protected from unreasonable searches
and seizures. The right not to incriminate oneself. The right to a
speedy and impartial trial by a 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 be 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
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 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 the 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: "As 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
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
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
** 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
preventive 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 preventive
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 preventive--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, preventive
detention invariably 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
antidemocratic 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
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 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
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 against 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-
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 neglected 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
** 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 citizens trust the police will they provide the
kind of information needed to solve and 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
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 recividism 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 crime-prone than they were
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.
The American Civil Liberties Union
132 West 43rd Street
New York, N.Y. 10036
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