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A Special Supplement: Nixon’s Crime Program and What It Means

I

Although the President’s urgently requested crime program has run into bad trouble in Congress in recent months, it now appears that the major components of this program will, unfortunately, be enacted.

We will first consider the President’s crime program and its current prospects in Congress. The program is separated by 180 degrees from any reasonable legislative program. It seems impossible even to get any agreement on just what the program itself includes. Press accounts on the number of bills in the program vary widely.1 A letter I received from the Department of Justice listing the bills concludes: “I leave it to you to make the count.”2 As nearly as I can figure out, the President’s crime program consists of the following elements:

(1) a series of proposals for revising the District of Columbia Code, which will have the effect of turning the District (where federal jurisdiction over crime is plenary) into a “showcase” for what the President and the Attorney General would like to see happen, throughout the country, to the criminal law, including preventive detention;

(2) a related proposal, which would do for federal courts generally what the DC legislation does with respect to pretrial preventive detention;

(3) a series of proposals for dealing with “organized crime”;

(4) a group of proposals that would fix even more sharply than at present the ascendancy of the Attorney General with respect to narcotics, marijuana, and other dangerous drugs;

(5) provisions making it unlawful to use the mails for sending pornography;

(6) a series of “perfecting” amendments to the Omnibus Crime Control and Safe Streets Act of 1968.3

As we discuss each of the current crime proposals, it will be hard to tell the players from the spectators, partly because the Administration and members of Congress are themselves caught up in a series of contradictions.

The DC Legislation. On July 23, the Senate passed the DC bill as reported by a conference committee from the House and the Senate, which had been locked in controversy from April 9 to July 14. The final bill was a victory for the more extreme and reactionary House version. Although the Senate bill had not contained the preventive detention provision, both bills contained slightly different versions of “no-knock” provisions, giving the police authority to search premises with a warrant but without first announcing their presence and demanding entry.

The issues are complex and debatable, but there is little doubt that Congressional recognition of “no-knock” authority is probably a violation of the Fourth Amendment’s prohibition against unreasonable searches and seizures. The House bill contained mandatory minimum sentences for crimes like armed robbery (e.g., not less than twenty years), a practice that is clearly contrary to the views of the best penological authorities, while the Senate version contained no such retrograde provisions. Although some of the most objectionable features of the House version were watered down, the sentencing provisions that emerged were a clear victory for the House. The Attorney General had previously endorsed the House version of the bill.

The Senate conferees were led by Senator Tydings (D., Md.). By a bare 5 to 3 majority he induced his colleagues to accept the bill. Senator Spong (D., Va.) signed the conference report reluctantly although he stated that he had “reservations about pre-trial detention and mandatory minimum sentences and would oppose these measures were they to be voted on separately.”4 Three senators, Eagleton (D., Mo.), Goodell (R., N.Y.), and Mathias (R., Md.), opposed the conference bill and did not sign the conference committee report.

In the Senate, the fight for the bill was led by Senator Tydings, chairman of the Senate District of Columbia Committee. The opposition was led by that occasional supporter of the Constitution, Senator Ervin (D., N.C.). The final vote on accepting the conference report was 54 to 33. Ervin, who had strongly supported the anti-Supreme Court aspects of the 1968 crime legislation, was once again on the opposite side from the “liberal,” Joseph Tydings, who had bitterly opposed the 1968 bill. How is one to explain these apparent changes of position? Ervin’s role in the 1968 legislation has been characterized as follows:5

The subcommittee’s deliberations on Title II left very little doubt about McClellan’s and Ervin’s motives. “They really hate the Supreme Court,” a participant in the discussions said later. “It’s easy for them to use it as a scapegoat to blame all the crime on, because where they come from the Court is already bitterly resented for its civil-rights decisions, and any attack on it is popular. Also, there’s no fear in their home states that a bill like this one would destroy our open society, because down there it never has been really open.

But both of them know better. They must know that the bill will hurt the poor and yet do nothing about crime. It may be true, to a certain extent, that McClellan actually believes that you can solve the crime problem by locking people up. Of course, that’s true, as Hitler and Stalin proved. But even McClellan must know you can’t do that without destroying our system. Ervin certainly knows it. He’s not only the leading Constitutional lawyer in the Senate—he’s smart. All through his career, he’s wanted to be named to the Court. Now that it’s clear he’s never going to make it, he doesn’t seem to care what harm he does to those who did make it. He’s just plain sore—and a bad loser.”

In 1970, no decisions of the Supreme Court were directly in issue in the DC bill. Sam Ervin, who was a supreme court justice in North Carolina before being elected to the Senate, has a detailed historical and technical knowledge of the Constitution which he can turn on whenever it suits his purpose to do so. On this occasion, he offered eloquent objection to preventive detention and to no-knock legislation:6

We are told that all that the bill does is to codify what is now law. I challenge that statement. They tell us that the bill embodies what was law in England. We rebelled against England, in part, because England tried to impose no-knock warrants upon the people of Boston. We wrote a Constitution to get away from some English law, and we enacted some statutory laws to accomplish the like purpose.

A few months after George Washington took his first oath of office as President of the United States, Congress enacted the Judiciary Act of 1789, and declared, as a policy of this Government, that every person charged with a Federal crime, other than a capital Federal crime, should have an absolute right to bail pending his trial.

Oh,” we are told, “some judges disobeyed this law, some judges were guilty of hypocrisy in setting bail too high to keep a man in prison.” And so it is proposed that we give some kind of sanctity to the hypocrisy of judges by allowing them to imprison men without any bail whatever. The proposal is that this 181-year-old right be destroyed for any person charged with a noncapital Federal crime in the District of Columbia if a judicial officer predicts that he is dangerous to others or the community.

In the ultimate analysis, preventive detention implies that judges are to be converted into prophets, and are to have the power to put men in jail and thus deny them a reasonable opportunity to prepare their cases for trial‌.

Earlier in his speech opposing the bill, Senator Ervin stressed the political motives that led men like Senator Tydings to support the bill:

Since the last Presidential campaign was based on the law and order issue in part, I myself have been beset by temptation. But I shall not succumb. I sincerely pray that none of my colleagues will be beset, by the same temptation. The siren voice of that old devil, political expediency, has been whispering in my ear, “You had better vote for the District of Columbia crime bill because it is a law and order bill, and it is not politically sagacious or politically profitable for Senators to vote against a law and order bill such as the District of Columbia crime conference report, even to preserve the individual liberties of our people.”

Senator Tydings faces a hard fight for re-election in November. A large proportion of his constituents work in the District of Columbia but live in the white suburbs of Maryland. Doubtless the House bill was a loaded pistol pointed at his head.

The House District of Columbia Committee is dominated by Southern congressmen like Representative McMillan (D., S.C.) who loaded the House bill with racist provisions. For example, the House bill contained a provision stating that in a suit for false arrest against a police officer the (presumably black) plaintiff should have to pay the policeman’s attorney fees, even if the plaintiff won the suit. In conference, this was amended to provide that the District should foot the policeman’s legal fees. Tydings hailed this trifling change as a great victory. At the same time, he admitted that the House held the trump card:

Some Senators have suggested we should defeat this conference report and send to the House a watered-down version of this legislation. They suggest that in adopting the conference report we are somehow knuckling under to the other House.

Having led the Senate conferees, I can guarantee this body that the other House will never accept this suggested alternative. But I do not offer that as a reason to pass this report.

Not much, he didn’t

How could Tydings, who had opposed the 1968 legislation, only a year later state:7

We have seen the wiretap and second-offense mandatory sentencing provisions attacked as unprecedented by critics who forget Congress authorized this same legislation, without the new safeguards this bill provides, for the entire Nation in the Omnibus Crime Act and the Gun Crime Control Act of 1968.

What possible use can preventive detention and “no-knock” be in reducing the obviously high rate of “crime in the streets” in the District of Columbia? Preventive detention will probably accomplish nothing that high bail rates do not already do. Reducing the interval between arrest and trial, which now can be as long as eighteen months, would be far more effective in cutting the crime rate. In England, which does not guarantee freedom before trial and on whose practice preventive detention is modeled, the time between arrest and trial is never more than a couple of months.

No-knock” has nothing whatever to do with crime in the streets. Its main use concerns crimes like possession of narcotics and marijuana. A more sordid trade-off than the exchange of an indeterminate tightening of police weapons against vice crimes for the constitutional rights of blacks in the ghetto could hardly be imagined.

The confessed ignorance of senators like Mansfield (D., Mont.) about the legal effect of the laws that they were helping to pass8 is an appalling comment on the arrogance of rural and suburban senators who have saddled the inhabitants of the District of Columbia with this outrageous and not very effective legislation.

  1. 1

    Perhaps the most authoritative account is given in a chart in The Congressional Record, which lists twelve bills as being parts of the Administration’s program and an additional eight bills as being supported by the Administration. Senator Thurmond (R., S.C.) inserted the chart, so I suppose that it counts as authoritative. Congressional Record, January 28, 1970, p. S 824.

  2. 2

    Communication from Thomas E. Kauper, Acting Assistant Attorney General, August 3, 1970.

  3. 3

    The passage of this legislation is the subject of Richard Harris’s excellent book, The Fear of Crime (1969).

  4. 4

    Statement of the Managers on the part of the Senate Submitted Regarding the Conference Action upon S. 2601, The President’s Crime Legislation for the District of Columbia, 91st Cong., 2d Sess., p. 38.

  5. 5

    Quoted from an anonymous senatorial source in Harris, The Fear of Crime, pp. 60-1.

  6. 6

    Congressional Record, July 23, 1970, p. S 11997.

  7. 7

    Ibid.

  8. 8

    Senator Mansfield made the following comment, during the earlier debate on the Organized Crime Bill, which applies equally to his support for the DC Crime bill:

    Mr. President, sometimes I wish I were a lawyer. At other times I am very glad that I never entered that profession.

    We have now spent three days on this bill, with the lawyers, by and large, arguing over the fine points of the proposed legislation which has been a year in the making.

    Undoubtedly there are bugs in this bill, as there are in almost any bill which the Senate passes. But I think the issue is so important that, insofar as the bugs are concerned, we might well consider resolving our doubts in favor of the legislation, so that we can attack a menace which is becoming more and more difficult to cope with in this city and in this Nation.

    Therefore, I hope that the Senate will go on record today with a solid vote of support for this legislation, so that we can indicate that we are ready to cope with the growing criminality which is becoming so prevalent and so hard to control throughout the Nation, and do it with a big bang today.

    But I Congressional Record, January 23, 1970, S 481.

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