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Jewish World Review /Oct. 7, 1998 /17 Tishrei 5759

Mona Charen

Mona Charen

Repeal Miranda

IN 1963, A 23-YEAR-OLD MAN with a prior arrest record, who had dropped out of the ninth grade, was picked up by the Phoenix police for questioning in the kidnapping and rape of an 18-year-old woman. At the end of a two-hour interrogation, Ernesto Miranda orally confessed to the crime, described the rape and signed a statement certifying that the confession was voluntary, that no threats or intimidation had been used, and that he fully understood his rights. He was tried, convicted and sentenced to 20 years in prison.

Miranda appealed his conviction on the grounds that his attorney had not been present during questioning and, accordingly, his confession could not be treated as truly voluntary. The Supreme Court agreed and in 1965 issued perhaps the most famous criminal decision in history, Miranda vs. Arizona.

The Miranda warnings are familiar not just to lawyers and judges but to anyone who has ever watched a cop show or movie: "You have the right to remain silent. Anything you say can and will be held against you in a court of law. You have the right to talk to a lawyer and have him present while you are being questioned. If you cannot afford to hire a lawyer, one will be provided for you. Do you understand these rights?"

When Miranda was decided, supporters of the decision hailed its protections against coerced confessions and police brutality. But critics warned that the decision would make it more difficult for the police to solve crimes. (Miranda was retried -- without the confession -- and convicted. He was paroled in 1972 and was killed in a bar fight. Ironically, his attacker was questioned and released. That crime was never solved.)

Now, more than 30 years later, the National Center for Policy Analysis has issued a report by Professor Paul G. Cassell of the University of Utah College of Law which argues that the critics were right: Miranda has hampered the ability of the police to solve crimes and has resulted in significant percentages of criminals going unpunished.

The statistics on crime clearance rates (or solving crimes) shows a marked decline in the years following the Miranda decision. Violent-crime clearance rates before 1965 hovered at around 60 percent. But in the years following Miranda, the rates dropped steeply, to 55 percent in 1966, 51 percent in 1967 and 47 percent in 1968. Violent-crime clearance rates have never rebounded to pre-Miranda highs. Property crimes are cleared at slightly higher rates than violent crimes but, again, nowhere near the rates that prevailed pre-Miranda.

Using standard statistical analysis techniques, Cassell argues that other factors, including number of police, money spent of policing, overall crime rate, number of juveniles in the population, the unemployment rate, disposable per-capita real income, labor-force participation, live births to unmarried mothers, and levels of urbanization and the distribution of crimes in large and small cities have not had as measurable an effect on crime clearance as the Miranda decision.

According to Cassell, there were between 56,000 and 136,000 more unsolved and therefore unpunished violent crimes in 1995 because of Miranda. For property crimes, the figure is between 72,000 and 299,000. Since the Supreme Court recommended the Miranda warnings as a safeguard, not as a constitutional right, Cassell argues that the court might now wish to reconsider.

The irony is that in 1965, coercive questioning methods by police were already in desuetude. Even the court's opinion acknowledged that such practices were "undoubtedly the exception now." Besides, as Justice Harlan's dissent pointed out, the Miranda warnings would do nothing to cure police misconduct: "Those who use third-degree tactics and deny them in court are equally able and destined to lie as skillfully about warnings and waivers."

Since society is paying a heavy price in increased crime due to Miranda, and since Miranda was designed to cure a problem that was already solving itself, alternatives deserve new attention. Videotaping all interrogations, as Cassell suggests, would avoid the rubber-hose problem. So would the presence of a magistrate. But the Miranda warnings have had the effect of discouraging all defendants -- even those stricken with conscience or temporarily too scared to lie --- from confessing.


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©1998, Creators Syndicate, Inc.