Comment on Ingraham's "moral duty" to talk and the right to silence.

• Author: O'Reilly, Gregory W.
• Position: United Kingdom standard imposing a duty to talk on those accused of crimes - Response to Barton L. Ingraham in Journal of Crime and Criminology, vol. 86, p. 559, 1996

1. Introduction

   Professor Barton L. Ingraham opened an illuminating debate about fundamental legal principles usually assumed to be at the bedrock of American democracy in his reply(1) to my article in this journal. My article described how England's new limits to the right to silence allow judges and juries to consider as evidence of guilt both a suspect's failure to answer police questions during interrogation and a defendant's refusal to testify during trial.(2) Proponents of this new law argued that it would "dissuade offenders from thwarting prosecution simply by saying nothing," force suspects to confess, increase convictions, and thereby reduce crime.(3) Opponents countered that even the innocent may "have valid reasons for remaining silent, and that the proposal would not reduce crime, but rather would increase the likelihood of coerced or false confessions and erroneous convictions."(4) Opponents also argued that the new limits to the right would undermine the presumption of innocence and erode England's accusatorial system of justice."(5)

   Along with others, I argued that limiting the right to silence would have significant effects on the accusatorial system of justice because the right exists to stall the engine which drives the inquisitorial system -- the power to encourage, require, or force individuals to answer to government questioning. By adopting the use of adverse inferences from the refusal to speak, England has curtailed the right to silence and replaced it with a duty to talk. In doing so, England has stepped back toward an inquisitorial system, a retreat which will affect not only the criminal justice system but also the character of the relationship between the citizen and the state.

   Professor Ingraham disagreed, and took issue with the key elements of the accusatory system of justice -- the presumption of innocence, the right to silence, and the burden and standard of proof. For Professor Ingraham, it is "no longer clear" that the hazard of criminal sanction is still sufficiently severe to require the protections of the accusatorial system.(6) He seeks to ensure that suspects and defendants honor a proposed moral duty to talk.(7) Professor Ingraham's reply echoes themes from his previous writings. He has argued that the accusatorial criminal justice system is a "circus of illusions and deception"(8) and a "perfect tool for keeping facts out of sight."(9) He has also argued that "American lawyers" perpetuate "myths" about the system, namely that judicial independence protects the citizen against overreaching government, that the adversary system utilizes neutral magistrates in a contest from which the truth emerges,(10) and that official power must be checked to assure liberty."(11) He has referred to the American distrust of leaving "too much to the discretion of officials" as "American parochialism,"(12) and dismissed distinctions between legal systems -- including those of totalitarian regimes -- regarding the value they place on the protection of the innocent from conviction.(13) The stark contrast between Professor Ingraham's views and my own may help to clarify why American lawyers believe and practice as we do, and why we have not only a tradition supporting the right to silence, but a commitment to it as a primary value in our jurisprudence.

   While English proponents of limiting the right to silence offered in trade the dubious promise of reduced crime, Professor Ingraham offered only a moral justification. He made light of any competing concerns, such as the risk that more innocent people will be convicted of crimes, or that the change may increase state power at the expense of individual liberty. In advocating a duty to talk, Professor Ingraham minimized its significance, contending that I offered "patently untrue" or "unverified statements" about the significance of the new law.(14) While he questioned the value of the accusatorial system and suggested that it should be diminished, he asserted the new law does not move the English justice system from the accusatorial towards the inquisitorial model, and argued that I perpetuated "myths" about the accusatorial and inquisitorial Systems.(15)

   In addition to defending England's new law, Professor Ingraham offered his own proposal for, among other things, imposing a duty to talk and reducing the standard and burden of proof.(16) He conceded that his proposal would "require the revision of the American presumption of innocence doctrine and the overruling of a whole series of Supreme Court cases, and therefore, it may strike the reader as a purely academic exercise."(17) It So strikes this reader. My response deals with Ingraham's defense of the new English law, his critique of my article, his dismissal of the need for the protections of the American accusatorial system of justice and his unconvincing justification for a duty to talk. Professor Ingraham's attempt to make a duty to talk seem benign by diminishing its significance and blurring the distinctions between accusatorial and inquisitorial systems requires this reply, for as Justice Bradley warned "illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure."(18)

2. Do We Still Need an Accusatory Criminal Justice System?

   Professor Ingraham argued `for treating criminal and civil cases more alike procedurally than they traditionally have been"(19) because "rationalizations"(20) for the procedural differences cited by the United States Supreme Court, such as "the stigmatizing effect of a criminal conviction," and the "nature and severity" of the criminal sanction,(21) "may have been true in the past, but they are far less true today." He compared the past, when death was the only penalty for a felony, with the present, where fines and probation are the most common penalties imposed by the criminal courts.(22) Relying on figures from 1985, Professor Ingraham noted that 1,870,132 persons were placed on probation and 757,409 were serving time in state and federal jails and prisons, thus "about 70% of all offenders" are placed on probation.(23) Professor Ingraham found it "very unlikely" that "this situation ... has changed much in the decade following publication of these statistics."(24) He is wrong to believe that, because parole is more common than prison, the severity of American criminal sanction is somehow diminished. Imprisonment was not "rare" in 1985, and it has escalated dramatically in the last decade. The available current data reveals that, at the end of 1994, 1.5 million people were behind bars in America. Of these, most -- 958,704 -- were in state prisons, 95,034 were in federal prisons, and 483,717 were in local jails.(25) One year later nearly 1.6 million people were behind bars, with 1,078,357 in state and federal prisons, an increase of 8.7 percent; and 507,044 in local jails, an increase of 4.2 percent.(26) By 1995, America had the world's highest incarceration rate, far exceeding the rates of any other industrialized nation, and five to ten times higher than the incarceration rates of Western European nations.(27) Serious offenders are typically not sentenced to probation, but to prison. The Department of Justice reported that in 1992, sixty percent of persons convicted of violent offenses were sentenced to prison, and another twenty-one percent were sentenced to time in local jails, often reflecting long pretrial stays.(28) Over eighty percent of persons convicted of violent offenses spend time behind bars.(29)

   Relying on 1983 figures, Professor Ingraham found that the average sentence for serious felonies was between about three and six years, while the actual time prisoners served "was, on the average, much less than these figures would indicate."(30) He concluded that "[l]ong-term imprisonment is also rare, although it has become more frequent in the last few years."(31) Professor Ingraham is wrong: long-term imprisonment is far from rare. The Department of justice reported that from 1992 through 1994 the average person convicted of a violent offense was sentenced to ten years in prison and would serve slightly less than five years in prison.(32) In 1991, thirty-four percent of American inmates were serving sentences of at least ten years, and another six percent were serving either life or death sentences. In England and Wales, by contrast, only four percent were serving sentences of ten or more years, and an additional eight percent were serving life sentences.(33) Differences in early release practices did not eliminate the differences in time served,(34) and these statistics are from before the "truth-in-sentencing" laws went into effect and dramatically increased the time actually served in American prisons.(35) Having represented persons facing both the death penalty and long prison terms, and having visited the jails and prisons where they languish, I find it hard to take seriously Professor Ingraham's musings that "[i]t is no longer clear" as to "[w]hich is more severe, a fine, probation, short-term incarceration or a civil damage award, the amount of which may be sufficiently high to destroy a business or strip one of one's earnings and savings, not only in the present but in the future as well."(36)

   While Professor Ingraham asserted the death penalty "is imposed and carried out so seldomly [sic] as to hardly count as a punishment,"(37) it has been imposed on 3,122 persons who are awaiting execution on America's death rows in 1996,(38) and by early 1996, it had been carried out on more than 330 people since executions resumed in 1977.(39) In 1993, thirty-eight persons were executed in America. In 1994, thirty-one persons were executed. Fifty-six people were executed in 1995, and by September 18, 1996, thirty-two persons had been executed.(40) Experts expect the pace of executions to increase dramatically under the habeas corpus...