Democratic restraints upon the police.

AuthorInbau, Fred E.
PositionOriginally published in Journal of Criminal Law and Criminology, vol. 57, p. 265, 1966 - Reprint

To place the subject of democratic restraints upon the police in its proper perspective, I would like to start out by suggesting that much of today's concern about the police stems from a confusion in the minds of many persons with respect to two different functions of the police. One function is the traditional one of the prevention and detection of conventional crimes and the apprehension of conventional criminals; the other is the role that the police have played, or rather been forced to play, in the controversy over the civil rights of minority groups.

Suggestive of this confusion is the fact that in recent years there have been considerably fewer instances of physical abuses of criminal suspects, and less intrusions upon their constitutional rights and privileges than ever before. For instance, the so-called 3rd degree is a rare occurrence today; thirty, twenty, or even ten years ago it was fairly commonplace. And today the police are being better selected and far better trained than in the earlier years. If this be so--and it is so--than why are the police being subjected to more and more restrictions in the performance of their duties with respect to the conventional type of crime and criminals? Why are their judicial "handcuffs" being squeezed fighter and tighter?

The primary reason, in my opinion, is the public identification of the police as the ones to blame and hold responsible for the plight of minority groups and the abuses of minority groups. The policeman is the uniformed symbol of all of these social ills. He has come to represent a menace in the way of a better life for the socially deprived.

Any thoughtful reflection will produce a realization that the police did not produce our slums or our Negro and Puerto Rican ghettos; nor did the police dream up the ideas of segregation and discrimination. Nevertheless, there exists a more or less unconscious identification of the police as the architects of it all. I suggest to you that even down South this architectural responsibility cannot be fairly placed upon the police. To be sure, they have served as the implements of some of the social wrongs and oppressions, but they were not the creators of any of them. I will also suggest to you that even the so-called "redneck" Southern sheriff with his cattle-prod was not acting in a dictatorial capacity; he was actually serving his community in the manner in which the community wanted to be served. His exercise of the power of suppression was not assumed; it was conferred upon him, tacitly, if not explicitly. In fixing primary blame, therefore, place it where it belongs--upon the community at large.

In the development of this attitude, whereby the policeman is the symbol of suppression and abuses of minority groups, and in seeking to curb his power, or even to render him harmless in that respect, the fact has been overlooked that we must depend upon these same policemen to protect us from the criminal element in our midst. For that we need his skill, his courage--and the legal powers of his office.

Once we recognize that the police are not the creators of our social ills with respect to minority groups, and once we realize that we can advance the cause of civil rights without emasculating the police, we can then make a better judgment as to what restraints should be imposed upon them in the exercise of their conventional police responsibilities and functions.

Another, though unrelated factor, that has clouded the thinking of many persons--including some judges, lawyers and law professors--is the impression many people receive when they hear about the reversal of a criminal case, and particularly one reversed by the Supreme Court, on the announced basis of "police misconduct". The assumption is that the police must have violated the law or the Constitution itself. To be sure this has occurred in some of the cases, as when coercive methods have been used to obtain a confession, but much of what the public has been hearing about today does not involve that kind of conduct at all. To the contrary, a number of the most publicized cases have centered about police practices and procedures that were legally permissible at the time they were employed but condemned later on as improper. The public itself is seldom made aware of this, so down again goes the image of the policeman.

The famous Escobedo case itself furnishes the best example of the point I am trying to make.(1) What the police did to Escobedo, and what 5 of the 9 Justices found objectionable, had been labeled as permissible in two of the Court's own decisions rendered only 6 years before the Escobedo decision. In Escobedo, the majority of the Court nullified a confession obtained after the police had refused to permit Escobedo's lawyer to confer with him. But at the time of Escobedo's interrogation the police were acting in accordance with the law as the Supreme Court had said it was in Crooker v. California(2) and Cicenia v. La Gay,(3) both of which were decided by a closely divided court, just as was Escobedo.

Incidentally, in addition to a reliance upon the Crooker and Cicenia cases, the police interrogators of Escobedo could have fortified themselves with the clear and explicit language of the sixth amendment which provides as follows: "In all criminal prosecutions, the accused shall enjoy the right to ... have the assistance of counsel for his defense". There is not one word in the Constitution or in any of its amendments to the effect that a suspect has the right to counsel in the police station.

My point is that the police interrogators did not deprive Danny Escobedo of any constitutional rights as they existed at that time. But I will hazard a guess that if the public at large were polled as to whether the decision was based upon the Court's finding that the police had violated Escobedo's constitutional rights at the time of the interrogation practically every one of them would say "yes". They might also be under the impression that Escobedo had been physically abused, or threatened, or offered promises of leniency.

May I call your attention to another illustration of how the public acquires an unfavorable impression of the police from their...

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