By C. J. Oakes
In the United States of America every citizen has rights. Well-known are the rights of a speedy trial, by an impartial jury of peers, counsel for defense, and silence. Over the course of American judicial history these rights and others have been tested repeatedly. One of the toughest issues facing society today, however, is the question of what rights criminals should possess. For law enforcement officers, this issue rises high on the list of problems facing the profession. Nationwide, police agents make daily arrests, often of the same individuals, then watch impotently as the courts release the law-breakers because of some technicality, plea-bargain, or other arrangement (Walker-Katz, 2008). To many police, rights in America lead to wrong.
The reasons rights have hindered the exercise of justice in America are many and the issue is very complex.
One reason many criminals fail to pay for their crime is the Constitution itself. When the founding fathers penned the Bill of Rights the intent was to avoid the problems associated with the English judicial system. In that system, persons brought to trial had virtually no rights, and as a result, many innocent individuals were wrongly convicted. In drafting the Bill of Rights, one of the foundations of American values was laid, namely that anyone arrested is innocent until proven guilty. In fact, the 6th Amendment provides a clear image of a nation seeking to believe in the innocence of citizens rather than guilt. At various times in the nation’s history the public has responded to increased criminal activity by seeking stricter laws; many of these laws have been challenged through the U. S. Supreme Court and the opinions provided have further complicated the issuance of justice. In addition, it pays to consider how public opinion affects police effectiveness (Lee, 1901) because DA’s and courts tend to side with the voters.
In 1966 the Supreme Court ruled that arrestees must be informed of their Constitutional rights. A direct result of this ruling was that police agencies nationwide had to alter their way of dealing with suspects. What has come to be known as the Miranda warning (Phelps & Lehman, 2005) has created loopholes that clever lawyers have used repeatedly to gain release for their clients. Police do their job by making arrests just to see the courts release criminals because the suspect was not properly Mirandized. Increasingly, police efforts are frustrated by the very system in which they work.
In addition, an adversarial system creates a form of sport in the courtroom. Because of this, the court authorities are willing to twist and bend the law by any means necessary so as to win. This includes putting witnesses, such as police, on trial. Thus many police officers are even humiliated by the very system for which they work.
Another reason police are finding it more difficult to make arrests that lead to convictions has to do with prosecutorial misconduct. Elected officials (District Attorney’s) seek as many convictions as possible. The belief is that higher conviction rates lead to re-election. Prosecutors often place considerable pressure on police to bend the law so as to gain convictions and this puts law enforcement officials in a tenuous position (Bibas, 2009). Failures to make convictions often lead prosecutors to place the blame on police mistakes so as to protect their own political positions. This causes the police to become even more disillusioned by the system.
To gain a clearer picture of just how extensive the problem of arrests versus convictions is one needs simply to look at the statistics.
According to the Sourcebook of Criminal Justice Statistics 2004, the average conviction rate for felony arrests is 46%. This means that for every 100 persons arrested, 54 are released. Many of these may very well be guilty, but through one means or another, they are returned to the streets and many of these continue their criminal activity. On the high end of the spectrum, 71% conviction rates occur for drug trafficers; On the low end, only 16% of those arrested for auto theft are convicted (Albany, Octo).
Another statistic worth considering is the incarceration rate over time. In 1985, the total population for all prisons was 144,208 or 313 persons for every 1000. As of 2009 that rate had increased to 2,297,400 or 748 of every 1000 (Albany, Octo). To further exemplify the increase, consider the number of persons within the system either incarcerated or on parole or probation in 2006 alone: 7,211,400. Generally speaking, people do not like to be imprisoned nor do families like it happening guilty or not. This tends to sway a considerable portion of the population against police and court powers. District Attorney’s tend to either release or blame, depending upon the proverbial political winds. When releasing, police are frustrated and when blaming, police are tainted for political ends. Either way the ability of the police officer to do the job is hindered.
Another point to consider in this respect is that based on these numbers, America is either becoming a more lawless society or the nation is creating more criminals through law. In either case, the result is the same: diminished public support for police agencies. Comparing statistics from 2004 and 2010 clearly demonstrates this reality. In 2004, 34% of the public expressed confidence in the criminal justice system compared with only 27%. Likewise, in 2004, 1% held no confidence in the system and by 2010 that figure had increased to 3%. Sir Robert Peel considered public support to be a vital element of police effectiveness and starting in the 1970s, departments nationwide began numerous community programs geared at increasing support (Walker-Katz, 2008). Clearly, all efforts have failed making the job of the police more difficult.
Adding to the problem of diminishing public respect is the increase in legal paradoxes. Such situations cause thinking people to lose respect for the justice system, many of these are the police who serve. In one case, an eight-year-old Arizona boy was facing the death penalty for murdering two people (Mousseau, 2008). Setting aside all arguments regarding the penalty itself, the paradox remains: to seek the death penalty, the child must be charged as an adult. Increasingly, states are deciding to charge children as adults when it serves the political ends of so-called justice. The paradox is clear: either children are children or adults. Poilitically motivated officials within the system are seeking to have it both ways; Children are children unless politics demands otherwise. Children see and hear this double-standard and grow up to become another generation without trust in the system. If this pattern continues, there will be even greater distrust of the system, making an already difficult job even more difficult for police.
One final point worth considering, though there are certainly more elements involved, is the drug war. Of all arrests in 2001, 28% were drug related with immigration violations ranking second at 21%, supervision violations third at 16%, and property crimes fourth at 14%. All other crime amounted to less than 21% combined (Albany, Octo). What this illustrates is that whereas so-called victimless crimes involving drugs ranked first for arrests, more serious crimes such as murder, rape, arson, larceny, fraud, and others were not given the same attention. The public often sees and hears these figures, sometimes embellished and concludes that the police are simply enemies of liberty or tools of the state. Just as faith in the system weakens, so too faith in the police as the arm of the system weakens. This makes the job of law enforcement more difficult and often more dangerous.
While faith in the system continues to weaken, those who seek to fight the system by exerting rights more aggressively will increase. The job of policing will continue to become more difficult until one of two situations occur: either the system will clean itself of the sludge that is weighing it down or rights will be eliminated altogether. Rights or wrong, the ability of police to do their job will continue to be made more difficult.
- Albany.edu. (October 15, 2010). Sourcebook of Criminal Justice Statistics Online. Retrieved from http://albany.edu/sourcebook/pdf
- Bibas, S. (2009). Prosecutorial Regulation versus Prosecutorial Accountability. University of Pennsylvania Law Review, 157(4), 959-1056.
- Lee, W. (1901). A History of Police in England. : .
- Mosseau, G. (November 10, 2008). American Chronicle. Retrieved from http://www.americanchronicle.com/articles/view/80885
- Phelps, S., & Lehman, J. (2005). Custodial Interrogation. Wests Encyclopedia of American Law, (), 321-325.
- Walker, S., & Katz, C. (2008). The Police in America: An Introduction (6th ed.). : McGraw Hill.