The Prohibition Era and Policing: A Legacy of Misregulation
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The Prohibition Era and Policing: A Legacy of Misregulation
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Overview
Intrusive searches for alcohol during Prohibition destroyed middle-class Americans' faith in police and ushered in a new basis for controlling police conduct. State courts in the 1920s began to exclude perfectly reliable evidence obtained in an illegal search. Then, as Prohibition drew to a close, a presidential commission awakened the public to torture in interrogation rooms, prompting courts to exclude coerced confessions irrespective of whether the technique had produced a reliable statement.
Prohibition's scheme lingered long past the Roaring '20s. Racial tensions and police brutality were bigger concerns in the 1960s than illegal searches, yet when the Supreme Court imposed limits on officers' conduct in 1961, searches alone were regulated. Interrogation law during the 1960s, fundamentally reshaped by the Miranda ruling, ensured that suspects who invoked their rights would not be subject to coercive tactics, but did nothing to ensure reliable confessions by those who were questioned. Explicitly recognizing that its decisions excluding evidence had not been well-received, the Court in the 1970s refused to exclude identifications merely because they were made in suggestive lineups. Perhaps a larger project awaits—refocusing our rules of criminal procedure on those concerns from which Prohibition distracted us: conviction accuracy and the use of force by police.
Product Details
| ISBN-13: | 9780826521880 |
|---|---|
| Publisher: | Vanderbilt University Press |
| Publication date: | 04/20/2018 |
| Edition description: | New Edition |
| Pages: | 280 |
| Sales rank: | 839,256 |
| Product dimensions: | 6.10(w) x 9.10(h) x 0.80(d) |
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CHAPTER 1
FROM PETTY OFFICERS TO POWERFUL POLICE
Law enforcement officers had very limited authority and neither the legal authority, nor the social clout, to engage in investigations or even aggressively defend the peace in the colonial era and during the early American Republic, nor did they have any such authority until the mid-nineteenth century. Those familiar with colonial-era complaints about British rule will be surprised to learn that law enforcement officials in the colonial period and in the first decades of the country's history were so powerless as to be ineffective and incapable of systemic abuses. This is, of course, surprising because one of the best-known complaints about British colonial rule involved searches by customs officers acting under the authority of writs of assistance. Customs agents, however, had unique powers and incentives before and after independence. Officers who policed early American cities and towns were, for all practical purposes, limited to assisting crime victims with the searches they requested to vindicate the wrongs done to them. Only with the rise of major cities and the problems that accompanied mid-nineteenth-century urbanization did law enforcement officers acquire the type of powers that customs agents had, and that modern-day officers possess.
The Incentives and Broad Powers of Early Customs Officers
Colonists' complaints about British rule has left us familiar with the nation's first search and seizure controversies. In 1760, colonial customs agents were given even broader powers than they traditionally possessed, making search and seizure law an issue in the struggles that led to independence. Writs of assistance authorized their bearers to search wherever they suspected for evidence of smuggled goods without requesting or receiving authorization from anyone. Unlike ordinary officers, customs agents ordinarily could and did seek warrants to search for evidence of violations prior to these writs. The writs eliminated the need to ever appear before a magistrate and seek authorization. As their name suggested, these authorizations further allowed customs officers to obtain assistance. Local law enforcement officers were required to aid in the search for goods smuggled into colonies. British customs agents in the colonies had strong incentives to aggressively use their right to search under these writs, and the colonists, or a certain prominent portion of the colonists, had a strong incentive to challenge the writs of assistance. Items smuggled into the colonies without the required taxes having been paid were forfeited to the Crown, and the customs agent received a portion of the value of the smuggled items. The
British customs agents, unlike local law enforcement officers they pressed into service, had no allegiance to the colonists whose warehouses they searched. Finally, the smugglers that customs agents were investigating were among the most prominent citizens in the colonies, well equipped to hire excellent counsel. Many of the signers of the Declaration of Independence were smugglers. The most prominent of these revolutionary smugglers was John Hancock, the president of the Continental Congress that declared independence.
The death of King George II provided an opportunity for Boston merchants to argue that the writs should not be reissued. When the famed colonial lawyer James Otis argued the case against the writs of assistance, John Adams was in the courtroom and observed that there the child of independence had been born. Wealthy Boston merchants were not only in a position to retain excellent counsel in 1760, but they would be at the forefront of leading the colonies into a bloody war to avoid the payment of minimal taxes and searches that revealed their violations of customs laws.
Otis made an argument that would form the basis of objections to searches and seizures centuries later. He argued that these writs placed "the liberty of every man in the hands of every petty officer." Otis lost his argument, and courts would retain the power to issue these warrants, but challenges to general warrants in England called into question warrants authorizing an officer to search anywhere his suspicions led. One such controversy gained considerable attention on both sides of the Atlantic. Warrants were issued in 1762 ordering the arrest of the publishers of an antigovernment pamphlet. A flamboyant member of Parliament, John Wilkes, made a career out of maligning the king's ministers, and, in one installment of his weekly pamphlet North Briton Number 45, he attacked King George III himself. The warrant was problematic because it permitted the officer executing it to determine for himself who he believed to be the publisher. A number of persons were arrested under this warrant, and Wilkes's house was thoroughly searched. In separate cases, English courts in 1763 found for those arrested — and searched and arrested in the case of Wilkes — concluding that such authority should not be given to officers. With these opinions, American colonial courts would no longer issue writs of assistance, reducing the discretion of customs officers from the absolute power they had to search, though they would retain substantial power not possessed by ordinary law enforcement officers.
Following independence, customs officers would nevertheless retain powers and incentives to seek warrants that ordinary law enforcement officers would not possess. While these officers would not be given writs of assistance in the early American Republic, they would, like their British predecessors, be given a portion of the smuggled goods or untaxed liquor they discovered. The First Congress enacted a statute that allowed these officers to obtain a warrant to search any building by going to a magistrate and simply asserting he had adequate suspicion to search the building he identified in the application for the warrant. The Third Congress modified the warrant application process and required customs officers to provide the magistrate the facts that gave rise to his suspicions.
These "petty officers" continued to have incentive and power to investigate crimes. Under either search standard, customs officers had an incentive to investigate a case and be allowed to obtain a warrant based on their suspicions alone. The unique status of these officials was in no small part attributable to the sparse criminal code of the time. Customs offenses were among the few victimless crimes in early America, and certainly the only ones that the government showed any degree of interest in routinely prosecuting.
Investigation of Ordinary Crime in Early America by Victims, Not Officers
Ordinary law enforcement and custom enforcement in colonial and early America was as different as night and day. It is no more surprising that late eighteenth-century law enforcement officers were comfortably tolerated than it is that customs enforcement officers provoked outrage. Customs officers were highly incentivized to search. During the colonial era, royal officers had little reason to worry about offending those in the local community. Ordinary law enforcement officers were locals and had almost no incentive to investigate crimes. Even if they did, law, custom, and social standing ensured that their role would be extraordinarily limited.
Victims, not officers, investigated crimes, with minor assistance from officers, when the country was born. Prior to the mid-nineteenth century, there were virtually no victimless crimes — and the victims of the crimes themselves had to vindicate the wrongs done to them. Police departments, as we understand them today, did not exist. At the time of the country's founding, law and practical realities converged to ensure that constables and watchmen would have very limited authority. Victims sought search warrants to recover stolen property (and thus identify the culprit) and arrest warrants that brought offenders before magistrates who interrogated the suspects much as modern detectives do. Of course, in some cases, the victim could not conduct the investigation, but even then the investigation was not done by professionals. Coroners, who were private citizens without any medical background, investigated homicides by convening inquests that looked much like modern grand juries, without the heavy-handed role of modern prosecutors.
Criminal procedure during this period severely limited the discretion of the majority of officers by effectively making them the ministerial assistant of magistrates and, ultimately, crime victims. For most crimes, victims alone conducted the investigation, identified suspects, and determined whether their suspicions were adequate to initiate a criminal prosecution. Once victims announced their suspicions, constables were given fairly precise directions about the persons or property to seize. While search and arrest warrants each gave officers the power to look for evidence of a crime, officers were not performing even this level of investigation. Crime victims accompanied officers and directed their investigations under either a search warrant, or the power of search-incident-to-arrest that accompanied an arrest warrant.
An early American search warrant illustrates the role victims continued to play in the investigatory process, even after a warrant was obtained. The overwhelming majority of search warrants during this era involved efforts to recover stolen goods. The complainant in the Connecticut case of Frisbee v. Butler (1787) believed that his pork had been stolen. A magistrate instructed a constable to "search all suspected places and persons that the complainant thinks proper, to find his lost pork." While the Connecticut Supreme Court deemed the warrant to be too broad an authorization, the reliance on victims to direct the search was not unusual or illegal, so long as an individual or location was specified in the warrant.
The investigatory skills of officers were rarely utilized. Even when an officer had a sound basis for suspecting guilt, there was no mechanism for the officer to seek a warrant. An applicant for a warrant had to swear that a crime had been committed, which an officer could not do in most cases. Practically and legally, the officer was prevented from acting without a warrant. He could not search without a warrant. The threat of civil liability, combined with a lack of institutional incentive, ensured that an officer would not arrest a suspect before a victim made such a complaint. Once the complaint was made, the officer followed up on the victim's suspicions — he did not conduct his own investigation.
In no small part, the limits on colonial and early American constables and night watchmen were practical. Law enforcement was not a full-time profession at this point. Constables and night watchmen had other jobs, and any arrest took time away from their other employment to appear in court. These early officers were unarmed and understaffed. Serious law enforcement issues, such as apprehending a dangerous felon or suppressing a riot, would require summoning a posse or calling up the militia. Men in the community were effectively drafted into terms of law enforcement service but could buy their way out of such service. Those who patrolled the streets of colonial and early America were thus not typically men of great standing. As there were no ranks of law enforcement in which to rise, even if there were no legal limits preventing assertive policing, there were simply no incentives for aggressive policing.
At the same time that substantial legal and practical limits existed on colonial and early American officers, victims were given extraordinary discretion. The process for obtaining warrants ensured a victim-initiated criminal justice system. To obtain a search or arrest warrant, a complainant had to swear a crime had been committed and that probable cause existed to support either a search or an arrest. While this conclusion has been debated in the academic community, it appears that a complainant's mere assertion that probable cause existed to believe that a suspect had committed the crime, or was in possession of stolen goods, was enough for an arrest or search warrant.
The debate about whether early American magistrates required complainants to provide the factual basis for their suspicions has turned on whether one should look to treatises or evidence of actual practice in the first decades of the republic. Thomas Davies, certainly one the country's best historians of early criminal procedure, has argued that a complainant, in the Framing Era, was required to provide a magistrate with the facts on which he based his suspicions and that the magistrate was to review the facts to determine whether they rose to the level of probable cause. By contrast, Fabio Arcila has contended that, as a practical matter, probable cause was analogous to a pleading requirement. Arcila concludes that magistrates were not performing a gatekeeper function at all when presented with requests for warrants. According to Arcila, a victim was required only to swear that a crime had been committed and that he had probable cause to believe the named suspect guilty or that evidence of the crime could be discovered in the identified location. Davies relies on seventeenth- and eighteenth-century treatises that describe a magistrate as having a duty to consider the facts on which the complainant relies for his suspicion. Arcila relies on justice of the peace manuals and form books of the same period, which appear to require the magistrate to ensure only that the complainant has sworn that a crime has occurred and that the complainant, in fact, has probable cause.
The bulk of the historical evidence is on Arcila's side. It is certainly true that legal treatises dating back to the seventeenth century observed that magistrates were to examine the facts supporting an application for an arrest or search warrant, as Thomas Davies contends. This rule was announced by such legal luminaries as Matthew Hale, William Hawkins, and William Blackstone. Evidence of the actual practice of magistrates in considering warrant applications, even beyond the justice of the peace materials Arcila considered, however, suggests that magistrates were not second-guessing the requests of complainants to initiate criminal proceedings against their fellow citizens.
Julius Goebel and Raymond Naughton, in their landmark work on law enforcement in colonial New York, observe that magistrates around the turn of the eighteenth century occasionally declined to issue warrants requested of them, but that complaints were made to the Privy Council when magistrates concluded they had the discretion to reject a warrant. A magistrate's review of the facts supporting a complainant's suspicion seems to have been an aberration, and there was great public pressure to eliminate these aberrations. Additionally, if magistrates at the turn of the nineteenth century were requiring complainants to provide factual support for their suspicions, they made no record of these facts. The few actual warrant applications that have survived from the turn of the nineteenth century reveal that, consistent with the form books Arcila cites, warrant applications contained no recitation of the facts complainants relied on.
Several pieces of evidence from the mid-nineteenth century provide further support for the conclusion. Oliver Barbour's treatise on New York criminal procedure observed in 1841 that "[a]t common law, it seems a magistrate might issue his warrant upon a general oath of suspicion merely. This was on the ground that the complainant was a competent judge of the matters upon which his suspicion rested." Henry Dutton's Connecticut treatise observed that a "justice of the peace may issue a warrant to search for stolen goods; but to authorize this, there must be the oath of the applicant that the goods have been stolen, and that he strongly suspects that they are concealed in a certain place." As a justice of the Connecticut Supreme Court, Dutton would observe that the "oath of a person who lost the goods" swearing that he "has just grounds to suspect and does suspect that the goods were taken by [the identified culprit]" was sufficient to obtain a search warrant.
The mid-nineteenth-century battle over state prohibitory laws provides further evidence that magistrates were not then scrutinizing warrant applications. As will be discussed in subsequent chapters, policy makers refused to authorize warrants to search for liquor when applicants followed the same procedures used for ordinary search and arrest warrants. Prohibition laws permitting liquor warrants were adopted by legislators only after they were modified to require the applicants to explain why they believed alcohol could be discovered in the location indicated and to require a magistrate to find these facts provided probable cause. If this procedure merely restated existing practice, it seemingly could not have ameliorated the concerns of even a single opponent of the proposed law.
(Continues…)
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Table of Contents
Acknowledgments ix
Introduction 1
Part 1 Urban Problems, the Invention of the Police as Regulators of Morality, and the Introduction of Modern Criminal Procedure 11
1 From Petty Officers to Powerful Police 13
2 Mid-Nineteenth-Century State Prohibition Laws and the Introduction of Limits on Progressive Era Officers 27
Part 2 Prohibition and the Shift of Criminal Procedure from Ensuring Accurate Criminal Trials to Preventing Police Misconduct 39
3 Judicial Supervision over Liquor Searches 43
4 Redefining the Evil of Tortured Confessions 63
5 An Awakened Hatred of Wiretapping 93
Part 3 Prohibition's Legacy in the Warren Court and Beyond 117
6 Regulating Searches in an Era of Police Harassment and Brutality 119
7 Permitting Suspects to Consent to Coercive and Deceptive Interrogation Practices 134
Part 4 Adapting Anachronistic Criminal Procedure 147
8 Retreat from Rules Designed to Deter Misconduct 149
9 Limited Progress toward Accuracy and Preventing Brutality 170
Conclusion 201
Notes 203
Index 261