Tuesday, November 18, 2008
David and Goliath
There is a constant problem in the criminal justice system. The tension between law enforcement and enforcement of whatever civil liberties we have got left... Sometimes I get the fear that these rights are imaginary and have already slipped away because of governmental overreaching and abuse of power... What is left of the Fourth Amendment right against unreasonable searches and seizures when police routinely stop and frisk people in the streets under the auspices of so-called 'consensual encounters' and 'consent?' What is left of Miranda v. Arizona when officers question first, obtain a confession under submission of authority and under excuse of preliminary investigation and then advise of Miranda once the person has already incriminiated himself? What is left of the notion of 'custodial interrogation' when officers think they can ask any questions they want until they place the person under formal arrest? Obviously, they are procuring arrest by means of violating someone's Fifth Amendment rights... My mouth is tired of saying that 'custodial interrogation' is a functional test. Someone may be in 'custody' of the police even without handcuffs and without formal arrest.
Well, on the other side of the pendulum are crime rates, victim's rights and public safety... Of course, most people are intensely afraid of crime and criminals without realizing that we are the ones creating both the crime rate and the criminals. We criminalize everything, our penal code is so outdated that it scares me. Poverty and misery are equated with 'criminal behavior'. Protecting oneself and surviving in ghettoes, for example walking with a knife in a pocket, is equivalent to criminal behavior. Everyone forgets that poverty breeds crime, miserable human existence breeds crime... Who are these imaginary 'criminals?'-- mostly people in dire circumstances, miserable, unhappy, abused, and lonely... Fix the causes, stop obsessing over the effects... Fix the sociological, cultural and political ailments that cause the behavior we have coined 'criminal.' Realize, most of these crimes are not malum in se (innately/morally wrong), but malum prohibitum (statutorily designed to be wrong).
But, most importantly, why do we constantly have to compromise civil liberties in the quest for public safety, crime investigation and justice for victims? Why can't law enforcement work within the parameters and in consort with the rules set up to protect individual's liberties. Are law enforcement needs and protection of civil liberties mutually exclusive and not co-extensive? I portray law enforcement needs as a circle within another circle of individual rights... So, desire to further law enforcement goals cannot take precedence or overshed individual rights because of this scheme of things. Unfortunately, that is far from the case in reality. On a daily basis, individuals have to endure constant overreaching by law enforcement and government in the streets... Once they end up in the court system, this continues because of judges who have an agenda to be 'tough' on crime and who believe their role is to further law enforcement goals and not protect individual's liberty interests...
As a rule, many people who have never been charged with a crime, think that this scheme of things does not affect them whatsoever... I get jurors' blank gazes when I question them about individual liberties during jury selection... They think a 'criminal' is an unusual type of a person, different from them, and therefore, this problem I am describing has no relevance in their lives.... But one thing they do not comprehend: these rights of little mythical David are contra to Goliath, the State, and if the government is allowed to step over these rights protecting this 'criminal', then it will also one day similarly step over other rights, not necessarily involving crime, such as freedom of speech, right to privacy, etc. If you do not push back the government at some point, it will enclose the individual with a wall into a space smaller and smaller with each passing day, month, year, decade... The grip will only get tighter and tigther!