Wiretapping and the Apex of Police Discretion
42 Pages Posted: 23 Apr 2010
Date Written: April 22, 2010
Abstract
Modern criminal procedure decisions often looks to the common law rules of the Framing Era to flesh out the contours of constitutional rules limiting police. This reliance on Framing Era history assumes that the country has more or less maintained a consistent view about the nature of limits on police power. The opposite is actually true. From roughly 1850 to 1920, police were essentially unregulated, powerful and dangerous. The modern rules of criminal procedure were a response to this period of unregulated police, not a recognition of the country's ongoing commitment to the principles of the Framing Era. The high-point of police authority, to which the public and policymakers responded during Prohibition, can be seen in the New York Wiretapping Controversy of 1916. The police asserted that wiretapping should be unregulated because the modern police force was skilled at identifying criminals and sufficiently professional to target only them. This was an argument that the public, willing to place great faith in the police, accepted. Prohibition would destroy this faith and impose the basic scheme of police regulation that remains today.
Keywords: wiretapping, Framing era, New York wiretapping controversy of 1916
JEL Classification: K1, K14, K4
Suggested Citation: Suggested Citation