Local Policing after the Terror

Abstract

The terrorist attacks on New York and Washington were, among other things, a one-day crime wave - because of what happened on September 11, homicides probably rose about twenty percent in 2001. Like more conventional crime waves in the past, this crime wave is likely to lead to a number of legal changes in the way we regulate ordinary policing - not just anti-terrorism work, and not just the kind of specialized law enforcement that FBI agents perform. Over the course of the next few years, we are likely to see some movement in Fourth and Fifth Amendment law to give the police more power. Though most academics rebel at the thought, that kind of movement is both good and natural. Fourth and Fifth Amendment protections ought to change with the nature and incidence of crime. As they have done in the past: For the past half-century, rises in crime have led to increases in police authority, just as crime reductions have led to reduced police power. The temptation is to see such change as zero-sum: More authority for the police means less liberty for the rest of us. That need not be so. There are a number of ways in which Fourth and Fifth Amendment law could both grant more power to the police and increase the level of freedom ordinary citizens enjoy. The paper suggests several such changes - regulatory "swaps" with additional police power paired with restrictions on how that power can be used: Give police the ability to search and seize groups of people, with or without individualized suspicion. Couple that ability with some regulation of the manner in which searches and seizures are carried out (such regulation is close to nonexistent now). Give police greater authority to conduct secret searches of the sort authorized by the USA Patriot Act - but restrict the ways police can use information they uncover in those searches. Give police the ability to question suspects who have invoked their Miranda rights (or, in other words, get rid of Miranda). But record all interrogations, so judges can better decide whether the police behaved too coercively. If the Supreme Court were to adopt these positions, both the police and the targets of police attention might be better off. It is possible, in other words, for the law to adapt to the changed circumstances September 11 created while preserving, and perhaps even increasing, the level of individual freedom criminal suspects enjoy.

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