HANDCUFFING THE COPS

By Melinda Rogers, media relations manager, S.J. Quinney College of Law

Fifty years after the U.S. Supreme Court handed down a historic decision in Miranda vs. Arizona — which determined that criminal suspects must be informed of their constitutional right to an attorney prior to police questioning — a pair of University of Utah researchers have found in a new analysis that the 1966 ruling today harms law enforcement’s ability to solve crimes.

In research just released in The Boston University Law Review, S.J. Quinney College of Law presidential professor Paul Cassell, along with researcher Richard Fowles, a professor in the U’s Department of Economics, found that Miranda requirements reduced police effectiveness by hindering law enforcement’s ability to solve cases because of restrictive procedures.

The researchers, who published an earlier report in 1998 in the Stanford Law Review, updated their original findings in a new report titled “Still Handcuffing the Cops?” They analyzed the Federal Bureau of Investigation’s crime clearance rate data from 1950 to 2012 — data which shows a dramatic reduction in law enforcement’s ability to “clear” or solve crimes immediately after the Miranda decision.

The premise of the research focused on whether the predictions of Miranda’s four dissenters — who voiced concern in the 1966 opinion over whether police effectiveness would be reduced because of the procedural requirements of Miranda — are today true, nearly 50 years after the original decision. Justice Byron White, for example, predicted that in “some unknown cases, the Court’s rule will return a killer, rapist or other criminal to the streets and to the environment which produce him, to repeat his crimes whenever it pleases him.” Nationally, the effectiveness of Miranda has been debated over the past year, as the nation again observed the ruling’s anniversary.

The statistical analysis by Cassell and Fowles shows that, for some important crime categories, the dissenters’ concerns were warranted.

“Our regression equations suggest that the Miranda requirements prevented police from solving more than 200,000 violent crimes and 900,000 property crimes in recent years, with particularly harmful effects on police efforts to solve robbery, larceny and vehicle theft crimes,” Cassell and Fowles said. “The equations control for potentially confounding variables — such as rising crime rates, changes in law enforcement presence or economic downturns — and suggest that about 20 percent more violent crimes and 11.6 percent more property crimes would be solved each year without the Miranda requirements.  Given the tremendous costs that criminals impose on their victims, these number suggest that it is important to search for less onerous ways of restricting police questioning.”

Cassell and Fowles noted the research also suggests that the harmful effects do not stem from the well-known “you have the right to remain silent” Miranda warnings, but rather from Miranda’s lesser-known procedural requirements. For example, the Miranda procedures  generally prevent police from questioning a suspect in custody unless he or she agrees to be questioned.  Such requirements could be replaced by a requirement that police videotape questioning, a change Cassell and Fowles believe could result in a “win-win” solution that would not only allow police to obtain more voluntary confessions from suspects but also provide safeguards against false confessions or inappropriate police pressure.

“Our findings certainly call into question the general academic belief that Miranda has not hampered law enforcement,” Cassell and Fowles wrote in the research’s concluding paragraphs.

“If Miranda has harmed law enforcement, extremely difficult questions arise for Miranda’s defenders … what is the metric that explains how a victim’s pain when a criminal escapes justice is outweighed by the benefit of giving that criminal the power to stop questioning?”

Cassell and Fowles plan to continue working together in the future, bringing together Cassell’s criminal law experience (as a former federal prosecutor, federal judge, and crime victims’ rights advocate) and Fowles’ econometric prowess to better understand controversial criminal law issues.

  • Joe Kitson

    So proud my alma mater is leading the way in disgusting apologias for cops

  • Knut Scott Lindsley

    Truly fascinating. I know that if you go back to the ‘founding father’ era, they said they would rather 100 guilty men go free than to imprison one innocent man, but that does not mean we should not evaluate and re-evaluate our system to be sure that we are not needlessly letting guilty people walk free. Often to re-offend.

    It could be argued that the primary focus of our police should be people who harm others and not non-violent drug offenders. As people who harm others more negatively impact society than people who want to use of sell drugs. Additionally the places that have decriminalized drugs have had a reduction in use and crime related to abuse. (not to mention less IV Drug transmitted disease).

  • If the University is going to put forward an argument based on statistics, it has an obligation to list the statistical analysis so the reader can make her own judgment. Having represented prisoners for more than four decades Cassell and Fowles argument fails to analyse the imbalance of power in an arrest situation. I know the alt-right or their early equivalent, the John Birch Society, has for fifty years objected to Miranda, but it has saved several citizens and non-citizens from abusive police practices. Every arrest needs a pause moment where the norms of a civilized society are remembered. Fortunately, want to be cowboys don’t rule our police forces.

  • Rana pipiens

    Did Profs. Cassell and Fowles also control for changes in the rate of wrongful convictions? What is the metric that explains how a victim’s pain, when they learn that the perp went on to harm many more people, while an innocent person spent years in prison, is outweighed by the benefit to the district attorney and police chief of having good crime clearance rates for their reelection campaigns?

    Given that police are acquitted in trials where the jury sees video of them shooting an unarmed person in the back, the notion that videotaping interrogations would prevent abusive questioning is risible. The results of an interrogation can be entered as evidence in a trial. The Fifth Amendment must protect people during interrogations as well as at trial.