PART I
INTRODUCTION
Uniformed police officers are the most visible element of America’s criminal justice system. Their numbers have grown exponentially over the past century and now stand at hundreds of thousands nationwide.[1] Police expenses account for the largest segment of most municipal budgets and generally dwarf expenses for fire, trash, and sewer services.[2] Neither casual observers nor learned authorities regard the sight of hundreds of armed, uniformed state agents on America’s roads and street corners as anything peculiar — let alone invalid or unconstitutional.
Yet the dissident English colonists who framed the United States Constitution would have seen this modern ‘police state’ as alien to their foremost principles. Under the criminal justice model known to the Framers, professional police officers were unknown.[3] The general public had broad law enforcement powers and only the executive functions of the law (e.g., the execution of writs, warrants and orders) were performed by constables or sheriffs (who might call upon members of the community for assistance).[4] Initiation and investigation of criminal cases was the nearly exclusive province of private persons.
At the time of the Constitution’s ratification, the office of sheriff was an appointed position, and constables were either elected or drafted from the community to serve without pay.[5] Most of their duties involved civil executions rather than criminal law enforcement. The courts of that period were venues for private litigation — whether civil or criminal — and the state was rarely a party. Professional police as we know them today originated in American cities during the second quarter of the nineteenth century, when municipal governments drafted citizens to maintain order.[6] The role of these “nightly watch” officers gradually grew to encompass the catching of criminals, which had formerly been the responsibility of individual citizens.[7]
While this historical disconnect is widely known by criminal justice historians, rarely has it been juxtaposed against the Constitution and the Constitution’s imposed scheme of criminal justice.[8] “Originalist” scholars of the Constitution have tended to be supportive, rather than critical of modern policing.[9] This article will show, however, that modern policing violates the Framers’ most firmly held conceptions of criminal justice.
The modern police-driven model of law enforcement helps sustain a playing field that is fundamentally uneven for different players upon it. Modern police act as an army of assistants for state prosecutors and gather evidence solely with an eye toward the state’s interests. Police seal off crime scenes from the purview of defense investigators, act as witnesses of convenience for the state in courts of law, and instigate a substantial amount of criminal activity under the guise of crime fighting. Additionally, police enforce social class norms and act as tools of empowerment for favored interest groups to the disadvantage of others.[10] Police are also a political force that constantly lobbies for increased state power and decreased constitutional liberty for American citizens.
THE CONSTITUTIONAL TEXT
The Constitution contains no explicit provisions for criminal law enforcement.[11] Nor did the constitutions of any of the several states contain such provisions at the time of the Founding.[12] Early constitutions enunciated the intention that law enforcement was a universal duty that each person owed to the community, rather than a power of the government.[13] Founding-era constitutions addressed law enforcement from the standpoint of individual liberties and placed explicit barriers upon the state.[14]
PRIVATE PROSECUTORS
For decades before and after the Revolution, the adjudication of criminals in America was governed primarily by the rule of private prosecution: (1) victims of serious crimes approached a community grand jury, (2) the grand jury investigated the matter and issued an indictment only if it concluded that a crime should be charged, and (3) the victim himself or his representative (generally an attorney but sometimes a state attorney general) prosecuted the defendant before a petit jury of twelve men.[15] Criminal actions were only a step away from civil actions — the only material difference being that criminal claims ostensibly involved an interest of the public at large as well as the victim.[16] Private prosecutors acted under authority of the people and in the name of the state — but for their own vindication.[17] The very term “prosecutor” meant criminal plaintiff and implied a private person.[18] A government prosecutor was referred to as an attorney general and was a rare phenomenon in criminal cases at the time of the nation’s founding.[19] When a private individual prosecuted an action in the name of the state, the attorney general was required to allow the prosecutor to use his name — even if the attorney general himself did not approve of the action.[20]
Private prosecution meant that criminal cases were for the most part limited by the need of crime victims for vindication.[21] Crime victims held the keys to a potential defendant’s fate and often negotiated the settlement of criminal cases.[22] After a case was initiated in the name of the people, however, private prosecutors were prohibited from withdrawing the action pursuant to private agreement with the defendant.[23] Court intervention was occasionally required to compel injured crime victims to appear against offenders in court and “not to make bargains to allow [defendants] to escape conviction, if they … repair the injury.”[24]
Grand jurors often acted as the detectives of the period. They conducted their investigations in the manner of neighborhood sleuths, dispersing throughout the community to question people about their knowledge of crimes.[25] They could act on the testimony of one of their own members, or even on information known to grand jurors before the grand jury convened.[26] They might never have contact with a government prosecutor or any other officer of the executive branch.[27]
Colonial grand juries also occasionally served an important law enforcement need by account of their sheer numbers. In the early 1700s, grand jurors were sometimes called upon to make arrests in cases where suspects were armed and in large numbers.[28] A lone sheriff or deputy had reason to fear even approaching a large group “without danger of his life or having his bones broken.”[29] When a sheriff was unable to execute a warrant or perform an execution, he could call upon a posse of citizens to assist him.[30] The availability of the posse comitatus meant that a sheriffs resources were essentially unlimited.[31]
LAW ENFORCEMENT AS A UNIVERSAL DUTY
Law enforcement in the Founders’ time was a duty of every citizen.[32] Citizens were expected to be armed and equipped to chase suspects on foot, on horse, or with wagon whenever summoned. And when called upon to enforce the laws of the state, citizens were to respond “not faintly and with lagging steps, but honestly and bravely and with whatever implements and facilities [were] convenient and at hand.”[33] Any person could act in the capacity of a constable without being one,[34] and when summoned by a law enforcement officer, a private person became a temporary member of the police department.[35] The law also presumed that any person acting in his public capacity as an officer was rightfully appointed.[36]
Laws in virtually every state still require citizens to aid in capturing escaped prisoners, arresting criminal suspects, and executing legal process. The duty of citizens to enforce the law was and is a constitutional one. Many early state constitutions purported to bind citizens into a universal obligation to perform law enforcement functions, yet evinced no mention of any state power to carry out those same functions.[37] But the law enforcement duties of the citizenry are now a long-forgotten remnant of the Framers’ era. By the 1960s, only twelve percent of the public claimed to have ever personally acted to combat crime.[38]
The Founders could not have envisioned ‘police’ officers as we know them today. The term “police” had a slightly different meaning at the time of the Founding.[39] It was generally used as a verb and meant to watch over or monitor the public health and safety.[40] In Louisiana, “police juries” were local governing bodies similar to county boards in other states.[41] Only in the mid-nineteenth century did the term ‘police’ begin to take on the persona of a uniformed state law enforcer.[42] The term first crept into Supreme Court jurisprudence even later.[43]
Prior to the 1850s, rugged individualism and self-reliance were the touchstones of American law, culture, and industry. Although a puritan cultural and legal ethic pervaded their society, Americans had great toleration for victimless misconduct.[44] Traffic disputes were resolved through personal negotiation and common law tort principles, rather than driver licenses and armed police patrol.[45] Agents of the state did not exist for the protection of the individual citizen. The night watch of early American cities concerned itself primarily with the danger of fire, and watchmen were often afraid to enter some of the most notorious neighborhoods of cities like Boston.[46]
At the time of Tocqueville’s observations (in the 1830s), “the means available to the authorities for the discovery of crimes and arrest of criminals [were] few,”[47] yet Tocqueville doubted “whether in any other country crime so seldom escapes punishment.”[48] Citizens handled most crimes informally, forming committees to catch criminals and hand them over to the courts.[49] Private mobs in early America dealt with larger threats to public safety and welfare, such as houses of ill fame.[50] Nothing struck a European traveler in America, wrote Tocqueville, more than the absence of government in the streets.[51]
Formal criminal justice institutions dealt only with the most severe crimes. Misdemeanor offenses had to be dealt with by the private citizen on the private citizen’s own terms. “The farther back the [crime rate] figures go,” according to historian Roger Lane, “the higher is the relative proportion of serious crimes.”[52] In other words, before the advent of professional policing, fewer crimes — and only the most serious crimes — were brought to the attention of the courts.
After the 1850s, cities in the northeastern United States gradually acquired more uniformed patrol officers. The criminal justice model of the Framers’ era grew less recognizable. The growth of police units reflected a “change in attitude” more than worsening crime rates.[53] Americans became less tolerant of violence in their streets and demanded higher standards of conduct.[54] Offenses which had formerly earned two-year sentences were now punished by three to four years or more in a state penitentiary.[55]
POLICE AS SOCIAL WORKERS
Few of the duties of Founding-era sheriffs involved criminal law enforcement. Instead, civil executions, attachments and confinements dominated their work.[56] When professional police units first arrived on the American scene, they functioned primarily as protectors of public safety, health and welfare. This role followed the “bobbie” model developed in England in the 1830s by the father of professional policing, Sir Robert Peel.[57]
Early police agencies provided a vast array of municipal services, including keeping traffic thoroughfares clear. Boston police made 30,681 arrests during one fiscal year in the 1880s, but in the same year reported 1,472 accidents, secured 2,461 buildings found open, reported thousands of dangerous and defective streets, sidewalks, chimneys, drains, sewers and hydrants, tended to 169 corpses, assisted 148 intoxicated persons, located 1,572 lost children, reported 228 missing (but only 151 found) persons, rescued seven persons from drowning, assisted nearly 2,000 sick, injured, and insane persons, found 311 stray horse teams, and removed more than fifty thousand street obstructions.[58]
Police were a “kind of catchall or residual welfare agency,”[59] a lawful extension of actual state ‘police powers.’[60] In the Old West, police were a sanitation and repair workforce more than a corps of crime-fighting gun-slingers. Sheriff Wyatt Earp of OK Corral fame, for example, repaired boardwalks as part of his duties.[61]
THE WAR ON CRIME
Toward the end of the nineteenth century, police forces took on a brave new role: crime-fighting. The goal of maintaining public order became secondary to chasing lawbreakers. The police cultivated a perception that they were public heroes who “fought crime” in the general, rather than individual sense.
The 1920s saw the rise of the profession’s second father — or perhaps its wicked stepfather — J. Edgar Hoover.[62] Hoover’s Federal Bureau of Investigation (FBI) came to epitomize the police profession in its sleuth and intelligence-gathering role. FBI agents infiltrated mobster organizations, intercepted communications between suspected criminals, and gathered intelligence for both law enforcement and political purposes.
This new view of police as soldiers locked in combat against crime caught on quickly.[63] The FBI led local police to develop integrated repositories of fingerprint, criminal, and fraudulent check records. The FBI also took over the gathering of crime statistics (theretofore gathered by a private association),[64] and went to war against “Public Enemy Number One” and others on their “Ten Most Wanted” list.[65] Popular culture began to see police as a “thin blue line,” that “serves and protects” civilized society from chaos and lawlessness.[66]
THE ABSENCE OF CONSTITUTIONAL CRIME-FIGHTING POWER
But the constitutions of the Founding Era gave no hint of any thin blue line. Nothing in their texts enunciated any governmental power to “fight crime” at all. “Crime-fighting” was intended as the domain of individuals touched by crime. The original design under the American legal order was to restore a semblance of private justice. The courts were a mere forum, or avenue, for private persons to attain justice from a malfeasor.[67] The slow alteration of the criminal courts into a venue only for the government’s claims against private persons turned the very spirit of the Founders’ model on its head.
To suggest that modern policing is extraconstitutional is not to imply that every aspect of police work is constitutionally improper.[68] Rather, it is to say that the totality and effect of modern policing negates the meaning and purpose of certain constitutional protections the Framers intended to protect and carry forward to future generations. Modern-style policing leaves many fundamental constitutional interests utterly unenforced.
Americans today, for example, are far more vulnerable to invasive searches and seizures by the state than were the Americans of 1791.[69] The Framers lived in an era in which much less of the world was in “plain view” of the government and a “stop and frisk” would have been rare indeed.[70] The totality of modern policing also places pedestrian and vehicle travel at the mercy of the state, a development the Framers would have almost certainly never sanctioned. These infringements result not from a single aspect of modern policing, but from the whole of modern policing’s control over large domains of private life that were once “policed” by private citizens.
THE DEVELOPMENT OF DISTINCTIONS
The treatment of law enforcement in the courts shows that the law of crime control has changed monumentally over the past two centuries. Under the common law, there was no difference whatsoever between the privileges, immunities, and powers of constables and those of private citizens. Constables were literally and figuratively clothed in the same garments as everyone else and faced the same liabilities — civil and criminal — as everyone else under identical circumstances. Two centuries of jurisprudence, however, have recast the power relationships of these two roles dramatically.
Perhaps the first distinction between the rights of citizen and constabulary came in the form of increased power to arrest. Early in the history of policing, courts held that an officer could arrest if he had “reasonable belief both in the commission of a felony and in the guilt of the arrestee.[71] This represented a marginal yet important distinction from the rights of a “private person,” who could arrest only if a felony had actually been committed.[72] It remains somewhat of a mystery, however, where this distinction was first drawn.[73] Scrutiny of the distinction suggests it arose in England in 1827 for more than a generation after ratification of the Bill of Rights in the United States.[74]
Moreover, the distinction was illegitimate from its birth, being a bastardization of an earlier rule allowing constables to arrest upon transmission of reasonably reliable information from a third person.[75] The earlier rule made perfect sense when many arrests were executed by private persons. “Authority” was a narrow defense available only to those who met the highest standard of accuracy.[76] But when Americans began to delegate their law enforcement duties to professionals, the law relaxed to allow police to execute warrantless felony arrests upon information received from third parties. For obvious reasons, constables could not be required to be “right” all of the time, so the rule of strict liability for false arrest was lost.[77]
The tradeoff has had the effect of depriving Americans of certainty in the executions of warrantless arrests. Judges now consider only the question of whether there was reasonable ground to suspect an arrestee, rather than whether the arrestee was guilty of any crime. This loss of certainty, when combined with greater deference to the state in most law enforcement matters, has essentially reversed the original intent and purpose of American law enforcement that the state act against stern limitations and at its own peril. Because arrest has become the near exclusive province of professional police, Americans have fewer assurances that they are free from unreasonable arrests.
Distinctions between the privileges of citizens and police officers grew more rapidly in the twentieth century. State and federal lawmakers enshrined police officers with expansive immunities from firearm laws[78] and from laws regulating the use of equipment such as radio scanners, body armor, and infrared scopes.[79] Legislatures also exempted police from toll road charges,[80] granted police confidential telephone numbers and auto registration,[81] and even exempted police from fireworks regulations.[82] Police are also protected by other statutory immunities and protections, such as mandatory death sentences for defendants who murder them,[83] reimbursement of moving expenses when officers receive threats to their lives,[84] and even special protections from assailants infected with the AIDS virus.[85] Officers who illegally eavesdrop, wiretap, or intrude upon privacy are protected by a statutory (as well as case law) “good faith” defense,[86] while private citizens who do so face up to five years in prison.[87] The tendency of legislatures to equip police with ever-expanding rights, privileges and powers has, if anything, been strengthened rather than limited by the courts.[88]
But this growing power differential contravenes the principles of equal citizenship that dominated America’s founding. The great principle of the American Revolution was, after all, the doctrine of limited government.[89] Advocates of the Bill of Rights saw the chief danger of government as the inherently aristocratic and disparate power of government authority.[90] Founding-era constitutions enunciated the principle that all men are “equally free” and that all government is derived from the people.[91]
RESISTING ARREST
Nothing illustrates the modern disparity between the rights and powers of police and citizen as much as the modern law of resisting arrest. At the time of the nation’s founding, any citizen was privileged to resist arrest if, for example, probable cause for arrest did not exist or the arresting person could not produce a valid arrest warrant where one was needed.[92] As recently as one hundred years ago, but with a tone that seems as if from some other, more distant age, the United States Supreme Court held that it was permissible (or at least defensible) to shoot an officer who displays a gun with intent to commit a warrantless arrest based on insufficient cause.[93] Officers who executed an arrest without proper warrant were themselves considered trespassers, and any trespassee had a right to violently resist (or even assault and batter) an officer to evade such arrest.[94]
Well into the twentieth century, violent resistance was considered a lawful remedy for Fourth Amendment violations.[95] Even third-party intermeddlers were privileged to forcibly liberate wrongly arrested persons from unlawful custody.[96] The doctrine of non-resistance against unlawful government action was harshly condemned at the constitutional conventions of the 1780s, and both the Maryland and New Hampshire constitutions contained provisions denouncing nonresistance as “absurd, slavish, and destructive of the good and happiness of mankind.”[97]
By the 1980s, however, many if not most states had (1) eliminated the common law right of resistance,[98] (2) criminalized the resistance of any officer acting in his official capacity,[99] (3) eliminated the requirement that an arresting officer present his warrant at the scene,[100] and (4) drastically decreased the number and types of arrests for which a warrant is required.[101] Although some state courts have balked at this march toward efficiency in favor of the state,[102] none require the level of protection known to the Framers.[103]
But the right to resist unlawful arrest can be considered a constitutional one. It stems from the right of every person to his bodily integrity and liberty of movement, among the most fundamental of all rights.[104] Substantive due process principles require that the government interfere with such a right only to further a compelling state interest[105] — and the power to arrest the citizenry unlawfully can hardly be characterized as a compelling state interest.[106] Thus, the advent of professional policing has endangered important rights of the American people.
The changing balance of power between police and private citizens is illustrated by the power of modern police to use violence against the population.[107]
As professional policing became more prevalent in the twentieth century, police use of deadly force went largely without clearly delineated guidelines (outside of general tort law).[108] Until the 1970s, police officers shot and killed fleeing suspects (both armed and unarmed) at their own discretion or according to very general department oral policies.[109] Officers in some jurisdictions made it their regular practice to shoot at speeding motorists who refused orders to halt.[110] More than one officer tried for murder in such cases — along with fellow police who urged dismissals — argued that such killings were in the discharge of official duties.[111] Departments that adopted written guidelines invariably did so in response to outcries following questionable shootings.[112] Prior to 1985, police were given near total discretion to fire on the public wherever officers suspected that a fleeing person had committed a felony.[113] More than 200 people were shot and killed by police in Philadelphia alone between 1970 and 1983.[114]
In 1985, the United States Supreme Court purported to stop this carnage by invalidating the use of deadly force to apprehend unarmed, nonviolent suspects.[115] Tennessee v. Garner[116] involved the police killing of an unarmed juvenile burglary suspect who, if apprehended alive, would likely have been sentenced to probation.[117] The Court limited police use of deadly force to cases of self defense or defense of others.[118]
As a practical matter, however, the Garner rule is much less stringent. Because federal civil rights actions inevitably turn not on a strict constitutional rule (such as the Garner rule), but on the perception of a defendant officer, officers enjoy a litigation advantage over all other parties.[119] In no reported case has a judge or jury held an officer liable who used deadly force where a mere “reasonable” belief that human life was in imminent danger existed.[120] Some lower courts have interpreted Garner to permit deadly force even where suspects pose no immediate and direct threat of death or serious injury to others.[121] The U.S. Ninth Circuit Court of Appeals recently denied the criminal liability of an agent who shot and killed an innocent person to prevent another person from retreating to “take up a defensive position,” drawing criticism from Judge Kozinski that the court had adopted the “007 standard” for police shootings.[122]
Untold dozens, if not hundreds, of Americans have been shot in the back while fleeing police, even after the Garner decision. Police have shot and killed suspects who did nothing more than make a move,[123] reach for their identification too quickly,[124] reach into a jacket or pocket,[125]“make a motion” of going for a gun,[126] turn either toward or away from officers,[127] ‘pull away’ from an officer as an officer opened a car door,[128] rub their eyes and stumble forward after a mace attack,[129] or allegedly lunge with a knife,[130] a hatchet,[131]or a ballpoint pen.[132] Cops have also been known to open fire on and kill persons who brandished or refused to drop virtually any hand-held object — a Jack Daniel’s whiskey bottle,[133] a metal rod,[134] a wooden stick,[135] a kitchen knife (even while eating dinner),[136] a screwdriver,[137] a rake[138] — or even refused an order to raise their hands.[139]
Cops who shoot an individual holding a shiny object that can be said to resemble a gun — such as a cash box,[140] a shiny silver pen,[141] a TV remote control,[142] or even a can opener[143] — are especially likely to avoid liability. In line with this defense, police officers nationwide have been caught planting weapons on their victims in order to make shootings look like self defense.[144] In one of the more egregious examples ever proven in court, Houston police were found during the 1980s to have utilized an unofficial policy of planting guns on victims of police violence.[145] Seventy-five to eighty percent of all Houston officers apparently carried “throw-down” weapons for such purposes.[146] Only the dogged persistence of aggrieved relatives and the firsthand testimony of intrepid witnesses unraveled the police cover-up of the policy.[147]
Resisting arrest, defending oneself, or fleeing may also place an American in danger of being killed by police.[148] Although the law clearly classifies such killings as unlawful, police are rarely made to account for such conduct in court.[149] Only where the claimed imminent threat seems too contrived — such as where an officer opened fire to defend himself from a pair of fingernail clippers[150] — or where abundant evidence of a police cover-up exists, will courts uphold damage awards against police officers who shoot civilians.[151]
As Professor Peter L. Davis points out, there is no good reason why police should not be liable criminally for their violations of the criminal code, just as other Americans would expect to be (and, indeed, as the constables of the Founding Era often were).[152] Yet in modern criminal courts, police tend to be more bulletproof than the Kevlar vests they wear on the job. Remember that the district attorneys responsible for prosecuting police for their crimes are the same district attorneys who must defend those officers in civil cases involving the same facts.[153] Under the Framers’ common law, this conflict of interest did not arise at all because a citizen grand jury — independent from the state attorney general — brought charges against a criminal officer, and the officer’s victim prosecuted the matter before a petit jury.[154] But the modern model of law enforcement provides no real remedy, and no ready outlet for the law to work effectively against police criminals. Indeed, modern policing acts as an obstruction of justice with regard to police criminality.
The bloodstained record of shootings, beatings, tortures and mayhem by American police against the populace is too voluminous to be recounted in a single article.[155] At least 2,000 Americans have been killed at the hands of law enforcement since 1990.[156] Some one-fourth of these killings — about fifty per year — are alleged by some authorities to be in the nature of murders.[157] Yet only a handful have led to indictment, conviction and incarceration.[158] This is true even though most police killings involve victims who were unarmed or committed no crime.[159]
Killings by police seem as likely as killings by death-row murderers to demonstrate extreme brutality or depravity. Police often fire a dozen or more bullets at a victim where one or two would stop the individual.[160] Such indicia of viciousness and ferocity would qualify as aggravating factors justifying the death penalty for a civilian murderer under the criminal laws of most states.[161]
From the earliest arrival of professional policing upon America’s shores, police severely taxed both the largess and the liberties of the citizenry.[162] In early municipal police departments, cops tortured, harassed and arrested thousands of Americans for vagrancy, loitering, and similar “crimes,” or detained them on mere “suspicion.”[163] Where evidence was insufficient to close a case, police tortured suspects into confessing to crimes they did not commit.[164] In the name of law enforcement, police became professional lawbreakers, “constantly breaking in upon common law and … statute law.”[165] In 1903 a former New York City police commissioner remarked that he had seen “a dreary procession of citizens with broken heads and bruised bodies against few of whom was violence needed to affect an arrest…. The police are practically above the law.”[166]
THE SAFETY OF THE POLICE PROFESSION
Defenders of police violence often cite the dangerous nature of police work, claiming the police occupation is filled with risks to life and health. Police training itself — especially elite SWAT-type or paramilitary training that many officers crave — reinforces the “dangerousness” of police work in the officers’ own minds.[167] There is some truth to this perception, in that around one hundred officers are feloniously killed in the line of duty each year in the United States.[168]
But police work’s billing as a dangerous profession plummets in credibility when viewed from a broader perspective. Homicide, after all, is the second leading cause of death on the job for all American workers.[169] The taxicab industry suffers homicide rates almost six times higher than the police and detective industry.[170] A police officer’s death on the job is almost as likely to be from an accident as from homicide.[171] When overall rates of injury and death on the job are examined, policing barely ranks at all. The highest rates of fatal workplace injuries occur in the mining and construction industries, with transportation, manufacturing and agriculture following close behind.[172] Fully 98 percent of all fatal workplace injuries occur in the civilian labor force.[173]
Moreover, police work is generously rewarded in terms of financial, pension and other benefits, not to mention prestige. Police salaries may exceed $100,000 annually plus generous health insurance and pension plans — placing police in the very highest percentiles of American workers in terms of compensation.[174] The founding generation would have been utterly astonished by such a transfer of wealth to professional law enforcers.[175] This reality of police safety, security and comfort is one of the best-kept secrets in American labor.
In all, it is questionable whether modern policing actually decreases the level of bloodshed on American streets. Police often bring mayhem, confusion and violence wherever they are called.[176] Approximately one-third of the people killed in high-speed police car chases (which are often unnecessarily escalated by police) are innocent bystanders.[177] Cops occasionally prevent rather than execute rescues.[178] “Police practices” ranked as the number one cause of violent urban riots of the 1960s.[179] Indeed, police actively participated in or even initiated some of the nation’s worst riots.[180] During the infamous Chicago Police Riot during the Democratic National Convention in 1968, police physically attacked 63 newsmen and indiscriminately beat and clubbed numerous innocent bystanders.[181]
PROFESSIONALISM?
If the modern model of cop-driven criminal justice has any defense at all, it is its “professionalism.” Private law enforcement of the type intended by the Framers was supposedly more inclined toward lax and arbitrary enforcement than professional officers who are sworn to uphold the law.[182] Upon scrutiny, however, the claim that professional police are more reliable, less arbitrary, and more capable of objective law enforcement than private law enforcers is drastically undermined.
The constitutional model of law enforcement (investigation by a citizen grand jury, arrest by private individuals, constables or citizens watch, and private prosecution) became seen as inefficient and ineffective as America entered its industrial age.[183] Yet the grand jury in its natural and unhobbled state is more, rather than less, able to pursue investigations when compared to professional police. Grand jurors are not constrained by the Fourth, Fifth or Sixth amendments — or at least the “exclusionary rule” fashioned by the courts to enforce those amendments.[184]
In the absence of police troops to enforce the law, the early criminal justice system was hardly as hobbled and impotent as conventional wisdom suggests. Private watch groups and broad-based advocacy groups existed to enforce laws and track criminals among jurisdictions. Thousands of local anti horse thief associations and countless ‘detecting societies’ sprang up to answer the call of crime victims in the nineteenth century.[185]In Maine, the “Penobscot Temperance League” hired detectives to investigate and initiate criminal cases against illegal liquor traffickers.[186] In the 1870s a private group called the Society for the Suppression of Vice became so zealous in garnering prosecutions of the immoral that it was accused in 1878 of coercing a defendant into mailing birth control information in violation of federal statutes,[187] one of the earliest known instances of conduct that later became defined as entrapment.[188] Although some of these private crime-fighting groups were invested with limited state law enforcement powers,[189] they were not police officers in the modern sense and received no remuneration.
Such volunteer nonprofessionals continue to aid law enforcement as auxiliary officers in many American communities.[190] Additionally, private organizations affiliated with regional chambers of commerce, neighborhood watch and other citizens’ groups continue to play a substantial — though underappreciated — role in fighting crime.[191] America also has a long history of outright vigilante justice, although such vigilantism has been exaggerated both in its sordidness[192] and in its scope.[193]
Moreover, government-operated policing is hardly a monopoly even today, neither in maintaining order nor over matters of expertise and intelligence-gathering.[194] There are three times more private security guards than public police officers and even activities such as guarding government buildings (including police stations) and forensic analysis are now done by private security personnel.[195]
The chief selling point for professional policing seems to be the idea that sworn government agents are more competent crime solvers than grand juries, private prosecutors, and unpaid volunteers. But this claim disintegrates when the realities of police personnel are considered. In 1998, for example, forty percent of graduating recruits of the Washington, D.C. police academy failed the comprehensive exam required for employment on the force and were described as “practically illiterate” and “borderline-retarded.”[196] As a practical matter, police are more dependent upon the public than the public is dependent upon police.[197]
Cops rely on the public for a very high percentage of their investigation clearances. As the rate of crimes committed by strangers increases, the rate of clearance by the police invariably declines.[198] Roughly two-thirds of major robbery and burglary arrests occur solely because a witness can identify the offender, the offender is caught at or near the crime scene, or the offender leaves evidence at the scene.[199] In contrast, where a suspect cannot be identified in such ways, odds are high that the crime will go unsolved.[200]
Studies show that as government policing has taken over criminal investigations, the rates of clearance for murder investigations have actually gone down. For more than three decades — while police units have expanded greatly in size, power and jurisdiction — the gap between the number of homicides in the United States and the number of cases solved has widened by almost twenty percent.[201] Today, almost three in ten homicides go unsolved.[202]
DNA EVIDENCE ILLUSTRATES FALLIBILITY OF POLICE
Moreover, a surprisingly high number of police conclusions are simply wrong. Since 1963, at least 381 murder convictions have been reversed because of police or prosecutorial misconduct.[203] In the 25-year period following the Supreme Court’s ruling in Gregg v. Georgia[204]reaffirming the use of capital punishment, one innocent person has been freed from death row for every seven who have been executed.[205] In Illinois, Thirteen men have been freed from death row since 1977 after proving their innocence — more than the twelve who were actually put to death over the same period. Governor George Ryan finally ordered a moratorium on executions until the death penalty system could be revamped,[206] referring to the death penalty system as “fraught with error.”[207]
Yet death penalty cases are afforded far more due process and scrutiny of evidence than noncapital cases. If anything, the error rate of police in noncapital cases is likely substantially higher. Governor Ryan’s words would seem to apply doubly to the entire system of police-driven investigation.
The advent of DNA analysis in the courtrooms of the 1990s greatly accelerated the rate at which police errors have been proven in court, even while avenues for defendants’ appeals have been systematically cut off by Congress and state legislatures.[208] DNA testing before trial has exonerated at least 5000 prime suspects who would likely have otherwise been tried on other police evidence.[209] Often, exculpatory DNA revelations have come in cases where other police-generated evidence was irreconcilable, suggesting falsification of evidence or other police misconduct.[210] The sheer number of wrongly accused persons freed by DNA evidence makes it beyond dispute that police investigations are far less trustworthy than the public would like to believe.[211]
Even more unjustified is the notion that a justice system powered by professional police possesses higher levels of integrity, trustworthiness and credibility than the criminal justice model intended by the Framers. Within the criminal justice system, cops are regarded as little more than professional witnesses of convenience, if not professional perjurers, for the prosecution.[212] Almost no authority credits police with high levels of honesty. Indeed, the daily work of cops requires strategic lying as part of the job description.[213] Cops lie about the strength of their evidence in order to obtain confessions,[214] about giving Miranda warnings to arrestees when on the witness stand,[215] and even about substantive evidence when criminal cases need more support. Cops throughout the United States have been caught fabricating, planting and manipulating evidence to obtain convictions where cases would otherwise be very weak.[216] Some authorities regard police perjury as so rampant that it can be considered a “subcultural norm rather than an individual aberration” of police officers.[217] Large-scale investigations of police units in virtually every major American city have documented massive evidence tampering, abuse of the arresting power, and discriminatory enforcement of laws according to race, ethnicity, gender, and socioeconomic status. Recent allegations in Los Angeles charge that dozens of officers abused their authority by opening fire on unarmed suspects, planting evidence, dealing illegal drugs, or framing some 200 innocent people.[218] More than a hundred prosecutions had to be dismissed in Chicago in 1997 due to similar police misconduct.[219] During the infamous “French connection” case of the 1970s, New York City narcotics detectives were caught diverting 188 pounds of heroin and 31 pounds of cocaine for their own use, making the City’s Special Investigating Unit the largest heroin and cocaine dealer in the city.[220]
Police criminality was so acute in New Orleans during the 1980s and 1990s that people were afraid to report crimes for fear that corrupt officers would retaliate or tip off organized crime figures. One New Orleans officer was convicted of ordering the execution of a witness who reported him to the internal affairs unit for allegedly pistol-whipping a teenager.[221] Thirty-six Washington, D.C. officers were indicted on charges such as drug dealing, sexual assault, murder, sodomy and kidnapping in 1992.[222]
In Detroit, repeated corruption allegations have seen a number of low- and high-ranking officers go to prison for drug trafficking, hiring hit men, providing drug protection, and looting informant funds.[223] Police burglary rings have been uncovered in several cities.[224]
Patterns of police abuse tend to repeat themselves in major American cities despite endless attempts at reform.[225] New York City police, for example, have been the subject of dozens of wide-ranging corruption probes over the past hundred years[226] yet continue to generate corruption allegations.[227] Police exhibit unique levels of occupational solidarity.[228] Review boards and internal affairs commissions inevitably fail to penetrate police loyalty and find resistance from every rank.[229] Cops inevitably form an isolated authoritarian subculture that is both cynical toward the rule of law and disrespectful of the rights of fellow citizens.[230] The code of internal favoritism that holds police together may more aptly be described as syndicalism rather than professionalism. Historically, urban police “collected” from local businesses.[231] Today, a more subtle brand of racketeering prevails, whereby police assist those businesses which provide support for police and undermine businesses which are perceived as antagonistic to police interests. This same shakedown also applies to newspaper editors and politicians.[232]
Even at the federal level, where national investigators presume to police corruption and oversee local departments, favoritism toward the police role is rampant. In 1992, for example, the federal government filed criminal charges in only 27 cases of police criminality.[233] A federal statute criminalizing violations of the Fourth Amendment has never been enforced even a single time, although it has been a part of the U.S. Code since 1921.[234] Throughout the 1980s and ’90s, the FBI Crime Laboratory actively abetted the misconduct of local police departments by misrepresenting forensic evidence to bolster police cases against defendants.[235]
COPS NOT COST-EFFECTIVE DETERRENT
In terms of pure economic returns, police are a surprisingly poor public investment. Typical urban police work is very expensive because police see a primary part of their role as intervention for its own sake — poking, prodding and questioning the public in hope of turning up evidence of wrongdoing. Toward this end, police spin quick U-turns, drive slowly and menacingly down alleyways, reverse direction to track suspected scofflaws, and conduct sidewalk pat-down searches of potential criminals absent clear indicia of potential criminality.[236] Studies indicate, however, that such tactics are essentially worthless in the war on crime. One experiment found that when police do not ‘cruise’ but simply respond to dispatched calls, crime rates are completely unaffected.[237]
Thus the very aspect of modern policing that the public view as most effective — the creation of a ‘police presence’ — is in fact a monstrous waste of public resources.[238] Similarly, the history of America’s expenditures in the war on drugs provides little support for the proposition that money spent on policing yields positive returns.[239] University of Chicago professor John Lott has found that while hiring police can reduce crime rates, the net benefit of hiring an additional officer is about a quarter of the benefit from arming the public with an equivalent dollar amount of concealed handguns.[240]
There is no doubt that modern police are a creation of lawful representative legislatures and are very popular with the general public.[241] But the rights of Americans depend upon freedom from government as much as freedom of government.[242] Constitutions must provide a countermajoritarian edifice to the threat posed by the will of the masses, and courts must at times pronounce even the most popular programs invalid when they contravene the fundamental liberties of a minority — or even the whole people at times when they inappropriately devalue their liberties.[243]
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