Organization: Arizona State University
Date: Tuesday, 29 Dec 1992 20:48:44 MST
From: Shooting Club at ASU <GUNDEVIL@ASUACAD.BITNET>
Newsgroups: talk.politics.guns
Subject:    ACLU and Crime (NOV 92, CJUST-L)

 ========================================================================
 Mr. Moderator: Please forgive if this has already been aired on t.p.g.
 We feel this is a fascinating article from the ACLU and answers a few
 questions many t.p.g readers may have about the "Guardian of Liberty".
 Comments ?
 ========================================================================
Received:     Thu, 12 Nov 92 02:14:33 MST
From:         "Carl M. Kadie" <kadie@EFF.ORG>
Subject:      [ACLU] Crime and Civil Liberties

[Discussion welcome. Information on other material is at the bottom
of this article - Carl]

Published by the Department of Public Education
American Civil Liberties Union
132 West 43rd Street.
New York, NY 10036
(212) 944-9800

ACLU 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 "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 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
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 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
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 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 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 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-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 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 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
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 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 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 before incarceration.

CRIME PREVENTION. A serious anticrime 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

================================================================

=================
README
=================
* Civil Liberty Archive
  [part of the Computers and Academic Freedom (CAF) Archive
     [part of the Electronic Frontier Foundation (EFF) Archive]]

This is an on-line collection of civil liberty statements. It includes
Briefing Papers from the American Civil Liberties Union. (The ACLU
material is made available by permission of the American Civil
Liberties Union)

If you have gopher, the archive is browsable with the command:
  gopher -p academic/civil-liberty gopher.eff.org

The archive is also accessible via anonymous ftp and email. Ftp to
ftp.eff.org (192.88.144.4). It is in directory
"pub/academic/civil-liberty".  For email access, send email to
archive-server@eff.org. Include the line:

send acad-freedom/civil-liberty <filenames>

where <filenames> is a list of the files that you want. File README is
a detailed description of the items in the directory.

For more information, to make contributions, or to report typos
contact J.S. Greenfield (greeny@eff.org).

=================
README.subject-index
=================
* Subject Index for Civil Liberty Archive

=================
aclu.aclu
=================
* Guardian of Liberty: American Civil Liberties Union -- ACLU Briefing Paper #1

=================
aids.aclu
=================
* AIDS and Civil-Liberties -- ACLU Briefing Paper #13

=================
artistic-freedom.aclu
=================
* Artistic Freedom -- ACLU Briefing Paper #14

=================
bill-of-rights.history.aclu
=================
* A History of the Bill of Rights -- ACLU Briefing Paper #9

=================
campaign-92.aclu
=================
* Campaign for the Bill of Rights '92 -- ACLU

=================
church-and-state.aclu
=================
* Church and State -- ACLU Briefing Paper #3

=================
crime.aclu
=================
* Crime and Civil Liberties -- ACLU Briefing Paper #2

=================
drug-testing.workplace.aclu
=================
* Drug Testing in the Workplace -- ACLU Briefing Paper #5

=================
english-only.aclu
=================
* "English Only" -- ACLU Briefing Paper #6

=================
faq.pointer
=================
* Pointer to Civil Liberties FAQ

=================
freedom-of-expression.aclu
=================
* Freedom of Expression -- ACLU Briefing Paper #10

=================
human-rights.un
=================
* Universal Declaration of Human Rights -- United Nations

=================
reproductive-freedom.minors.aclu
=================
* Reproductive Freedom: The Rights of Minors -- ACLU Briefing Paper #7

=================
women-against-censorship
=================
* Women Against Censorship -- Excerpts

=================
womens-rights.1848
=================
* Declaration of Sentiments from 1st Women's Rights Convention

=================
=================
Last update
Mon Nov  9 16:51:03 EST 1992