CAN YOU AGREE WITH ANYTHING HERE?Fri Sep 14, 2007 21:44Steal This Movie!
1 hr 47 min 45 sec - Aug 10, 2006
CAN YOU AGREE WITH ANYTHING HERE?
ARE COPS CONSTITUTIONAL?
THE FIFTH AMENDMENT
In a previous article, I described the limitation of common law grand jury powers by Rule 6 of the Federal Rules of Criminal Procedure as an unconstitutional infringement of the Fifth Amendment Grand Jury Clause.420 The fact that most criminal charges are now initiated not by crime victims but by armed state agents who serve the state's interests represents a drastic alteration of Founding-era criminal procedure.421 The suppression of grand jurors' lawful powers belies the intent of the Constitution that law enforcement officials be subject to stringent oversight by the citizenry through grand juries. Modern policing, in effect, acts as a middleman between the people and the judicial branch of government that was never contemplated by the Framers.
The Fifth Amendment also prohibits the compulsion of self-incriminating testimony.422 Various competing interpretations ebbed and flowed from this provision until 1966, when the Supreme Court held that police are required to actually tell suspects about the Fifth and Sixth Amendments' protections before interrogating them.423 The sheer volume of criticism by police organizations of the Miranda ruling over the next three decades indicates the strong state interest in keeping the Constitution's protections concealed from the American public.
Modem police interrogation could scarcely have been imagined by the Framers who met in Philadelphia in the late eighteenth century. Police tactics such as falsifying physical evidence, faking identification lineups, administering fake lie detector tests and falsifying laboratory reports to obtain confessions are methods developed by the professionals of the twentieth century. 424 Against such methods a modern suspect stands little chance of keeping his tongue. Like the exclusionary rule and the entrapment defense, the Miranda rule operates as an awkward leveling device between the rights of American citizens and their now-leviathanic government.
In 2000, the Supreme Court upheld (indeed, "constitutionalized") the Miranda rule in the face of widespread predictions that the police-favoring Rehnquist majority would abandon the rule.425 The Court delivered an opinion recognizing that "the routine practices of [police] interrogation [is] itself a relatively new development."426 The Miranda requirement, according to Justice Rehnquist, was therefore justified as an extension of due process — a far more sustainable course than one extending from the wording of the Fifth and Sixth Amendments.427
The Dickerson decision illustrates the increasingly awkward peace between the Bill of Rights and the phenomenon of modern policing. Because the Framers did not contemplate wide-scale execution of government power through paid, full-time agents, modern jurisprudence reconciling the Bill of Rights with today's police practices seems increasingly farfetched. Justices Scalia and Thomas dissented from the Dickerson majority with well-founded textualist objections, arguing that the majority was writing a "prophylactic, extraconstitutional Constitution" to protect the public from police.428 Yet in light of the extraconstitutional nature of modern police, the Dickerson majority opinion is no less consistent with the Framers' constitutional intent.
Due process of law depends upon assurances that a level playing field exists between rival adversaries pitted against each other.429 The constitutional design pitted a citizen defendant against his citizen accuser before a jury of his (the defendant's) peers. The state provided only the venue, the process, and assurances that the rule of law would govern the outcome. By comparison, a modern defendant is hardly pitted in a fair fight, facing the vast treasury and human resources of the state. While the criminal justice system of the Founding era was victim-driven, and thus self-limiting, today's system is fueled by a professional army of police who measure their success in numbers of arrests and convictions.430
Police themselves often ignore standard concepts of fairness, official regulations, and statutes in their war on crime.431 Police agencies have even been known to develop institutional means to circumvent court attempts to equalize the playing field.432 In the face of unwanted publicity or controversy surrounding police brutality cases, police departments have been known to release arrest records to the media to vilify victims of police misconduct.433
The police model of law enforcement tilts the entire system of criminal justice in favor of the state. The police, though supposedly neutral investigators, are in reality an arm of the prosecutor's office.434 Where police secure a crime scene for investigation, they in fact secure it for the prosecution alone and deny access to anyone other than the prosecution. A suspect or his defense attorneys often must obtain court permission to view the scene or search for evidence. Only such exculpatory evidence as by accident falls into the hands of the prosecution need be revealed to the suspect or defendant.435 In cases where police misconduct is an issue, police use their monopoly over the crime scene to prepare the evidence to suit their version of events.436
Mapp, Miranda and Dickerson notwithstanding, the tendency of modern courts to work around police practices, rather than nullify or restrain them, poses the very threat to due process of law the Framers saw as most dangerous to liberty. Instead of viewing the system as a true adversarial contest with neutral rules, judges and lawmakers have decided that catching (nonpolice) lawbreakers is more important than maintaining a code of integrity.437 The "sporting theory of criminal justice," wrote Justice Warren Burger, "has been experiencing a decline in our jurisprudence."438 In its place is a system where the government views the nonpolice lawbreaker as a threat to its authority and places top priority on defeating him in court.439
Abandonment of victim-driven, mostly private prosecution has led to consequences the Framers could never have predicted and would likely never have sanctioned. Even in the most horrific examples of colonial criminal justice (and there were many), defendants were rarely if ever entrapped into criminal activity. The development of modern policing as an omnipotent power of the state, however, has necessitated the simultaneous development of complicated doctrines such as entrapment and "outrageous government conduct" as counterweights.
It was not until the late nineteenth century that any English or American case dealt with entrapment as a true defense to a criminal charge.440 (The case law until then had been virtually devoid of police conduct issues altogether).441 Beginning in 1880, English case law slowly became involved with phenomena such as state agents inducing suspects to sell without proper certificates,442 persuading defendants to supply drugs to terminate pregnancy,443 and enticing people to commit other victimless crimes. Dicta in some English cases expressed outrage that police might someday "be told to commit an offense themselves for the purpose of getting evidence against someone."444 Police who commit such offenses, said one English court, "ought also to be convicted and punished, for the order of their superior would afford no defense."445
Entrapment did not arise as a defense in the United States until 1915, when the conduct of government officers for the first time brought the issue before the federal courts. In Woo Wai v. United States, the Ninth Circuit overturned a conviction of a defendant for illegally bringing Chinese persons into the United States upon evidence that government officers had induced the crime.446 Growth in police numbers and "anti-crime" warfare was so rapid that in 1993, the Wyoming Supreme Court wrote that entrapment had "probably replaced ineffectiveness of defense counsel and challenged conduct of prosecutors as the most prevalent issues in current appeals."447
The growth of the use of entrapment by the state raises troubling questions about the nature and purposes of American government. Rather than "serving and protecting" the public, modern police often serve and protect the interests of the state against the liberties and interests of the people. A significant amount of police brutality, for example, seems aimed at mere philosophical, rather than physical, opposition. Police dominance over the civilian (rather than service to or protection of him) is the "only truly iron and inflexible rule" followed by police officers.448 Thus, any person who defies police faces virtually certain negative repercussions, whether a ticket, a legal summons, an arrest, or a bullet.449 One study found nearly half of all illegal force by police occurred in response to mere defiance of an officer rather than a physical threat.450
In the political sphere, police serve the interests of those in power against the rights of the public. New York police of the late nineteenth century were found by the New York legislature to have committed "almost every conceivable crime against the elective franchise," including arresting and brutalizing opposition-party voters, stuffing ballot boxes, and using "oppression, fraud, trickery [and] crime" to ensure the dominant party held the city.451 In the twentieth century, J. Edgar Hoover's FBI agents burglarized hundreds of offices of law-abiding, left-wing political parties and organizations, "often with the active cooperation or tacit consent of local police."452 The FBI has also spent thousands of man-hours surveiling and investigating writers, playwrights, directors and artists whose political views were deemed a threat to the interests of the ruling political establishment.453
Police today are a constant agent on behalf of governmental power. Both in the halls of legislatures and before the courts, police act as lobbyists against individual liberties.454 Police organizations, funded by monies funneled directly from police wages, lobby incessantly against legislative constraints on police conduct.455 Police organizations also file amicus curie briefs in virtually every police procedure case that goes before the Supreme Court, often predicting dire consequences if the Court rules against them. In 2000, for example, the police lobby filed amicus briefs in favor of allowing police to stop and frisk persons upon anonymous tips, warning that if the Court ruled against them, "the consequence for law enforcement and the public could be increased assaults and perhaps even murders."456
The United States of America was founded without professional police. Its earliest traditions and founding documents evidenced no contemplation that the power of the state would be implemented by omnipresent police forces. On the contrary, America's constitutional Framers expressed hostility and contempt for the standing armies of the late eighteenth century, which functioned as law enforcement units in American cities. The advent of modern policing has greatly altered the balance of power between the citizen and the state in a way that would have been seen as constitutionally invalid by the Framers. The implications of this altered balance of power are far-reaching, and should invite consideration by judges and legislators who concern themselves with constitutional questions
Vine & Fig Tree
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Steal This Movie!
1 hr 47 min 45 sec - Aug 10, 2006
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