The Crime of Punishment
The Nixon Administration’s crime program, as it now appears, is thoroughly retrograde: “Mitchell’s Folly,” whether or not it is bought by the Congress and the Courts, has securely earned its author a position in the seventh circle of Hell:
(1) Increased penalties for selling and possessing marijuana and LSD.
(2) Easy mechanisms to deploy the same penalties against such other drugs as the Administration may wish to attack.
(3) A “no knock” law to give federal officers the power to invade the home.
(4) A “preventive detention” statute that is open to the broadest powers of abuse, as attested by the opposition not only of Whitney Young but also or perhaps one should say even of Senator Sam Ervin.
Mitchell is clearly unwilling to await Congressional action on his program. He has instructed his subordinates to launch an all-out attack on the Miranda doctrine and, worse yet, has claimed in the current Chicago conspiracy case that the government has plenary power to use wiretapping and eavesdropping against anyone who is thought to be attacking and subverting the Government, free of judicial supervision and without regard to the Fourth Amendment, which is to say, whenever and against whomever it strikes the Attorney General’s fancy to proceed.
Preventive detention, as readers of The New York Review know from Professor Dershowitz’s recent piece, is that doctrine which views the identification of “dangerousness” as a personal characteristic which should subject those who possess it to severe and prolonged periods of incapacitation. Its advocates are always ready, in spite of Professor Dershowitz’s strongly expressed reservations, to proclaim that “dangerousness” can be predicted and, whatever the occasion for its discovery, should be the basis for subjecting those who possess it to measures of incapacitation.
Among those who hold this view are what I have referred to as the “behaviorists” in the criminal law. They see the occurrence of a disturbing event that we call a crime as nothing more than an occasion among others calling for social intervention. They posit, among other things, the views (1) that free will is an illusion, since conduct is socially and psychologically determined by forces that one cannot control; (2) that blame cannot be ascribed for behavior that is conditioned; (3) human conduct, being causally determined, should and can be scientifically studied and controlled; (4) the only possible function for criminal law is to modify the personality of people who commit antisocial acts, or if that fails to restrain them through confinement. The erroneous assumptions of this view are first, that we have any real knowledge about how to rehabilitate people, and second, that we know how to predict those who exhibit traits that are dangerous. The inevitable end of the behavioral view is preventive detention.
The notion that addiction to the use of drugs offers a basis for the prediction of dangerousness, the use of preventive detention before trial, and the power to wiretap and eavesdrop ad libitum, all mark the Administration’s …
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Model Sentencing December 18, 1969