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

The Proposal to Enact Preventive Detention Nationally. In form, this proposal is an amendment to the Bail Reform Act of 1966.9 The luck of the legislative draw is against the President on this one. Although Congress approved preventive detention for the District of Columbia earlier this year as just stated, national preventive detention must pass through Senator Ervin’s Judiciary Subcommittee before the bill can be reported to the full Judiciary Committee, let alone the Senate floor. Ervin has been holding hearings on the Administration bill.

With Senator Ervin conducting the hearings, the case against preventive detention is getting a full hearing. Preventive detention, Ervin’s subcommittee was told, is opposed by the American Bar Association’s Section on Individual Rights, by the Association of the Bar of the City of New York, by the National Bar Association, by Arthur Goldberg, by Ramsey Clark, and by James V. Bennett, the former director of the US. Bureau of Prisons and the nation’s leading authority on the state of its prisons, who in commenting on one of its provisions, that detainees should be held in separate facilities from convicted persons, stated: “No such bill as this should be passed until the facilities are available to house, feed, and safeguard those who will be committed.”

No one has even attempted to answer this pragmatic objection to preventive detention.10 Richard Kleindienst, the Assistant Attorney General, was only able to mouth the platitude that preventive detention is an essential ingredient in any program to combat crime. Outside the hearings, Senator William Saxbe (R., Ohio) cited the wounding of a police officer by a person who was out on bail charged with a felony as demonstrating the need for preventive detention. Senator Ervin’s office pointed out that the assailant would have been released long before the police officer was shot had he been held for the sixty-day period provided by the preventive detention bill. Senator Saxbe’s rejoinder has not, so far as I am aware, yet been made.

Smarting under the back-door passage of preventive detention in the District of Columbia bill, Senator Ervin (we can assume) will let his subcommittee talk preventive detention to death during the current legislative session.

Organized Crime. The Senate, on January 23, 1970, passed S. 30, an omnibus bill which had been expanded to include several of the Administration’s most cherished proposals, by a vote of 73 to 1. The single dissenting voice was that of Lee Metcalf (D., Mont.), who had the guts to vote against the bill. He stated off the floor:

I stand here…ready to vote for more judges, more policemen on the streets, more grants-in-aid to sheriffs and municipalities to help them train their police services. But I feel that this will take away individual constitutional rights that will not contribute to the law enforcement that we seek.11

Introduced by Senator McClellan (D., Ark.) for the Senate Judiciary Committee, endorsed by President Nixon, who suggested additional provisions, many of which were included, S. 30 is a reprehensible measure. Its provisions, inter alia, are:

(1) the Fifth Amendment’s protection against self-incrimination would be abridged by providing that witnesses who are compelled to testify are immune from prosecution solely on the basis of the words they use in their compelled testimony, and not on the basis of the whole transaction which their testimony concerns;12

(2) a grand jury witness who refuses to testify can be imprisoned for contempt for as long as three years, without being tried, since a judge can hold a recalcitrant witness in civil contempt for the life of the grand jury, which may be as long as three years,13

(3) a witness cannot challenge illegally obtained evidence if it was obtained more than five years before the event to be proved, a limitation on the right to challenge unconstitutionally secured evidence which is probably unconstitutional itself;

(4) instead of disclosing all illegally obtained evidence to a defendant challenging its use, the court is permitted to disclose only that part of the evidence which it deems to be relevant;14

(5) a judge can impose a thirty-year sentence on anyone convicted of a felony if he decides, in a separate hearing, that the person convicted is a “dangerous special offender” on the basis of his finding that the offender is a “bad egg,” the grounds for which include that he has engaged in a “pattern of conduct which…constituted a substantial source of his income, and in which he manifested special skill or expertise.”15

A storm of protest has greeted S. 30 as it has been considered by the House Judiciary Committee, whose chairman, Emanuel Celler (D., N.Y.) has been trying to modify if not to block the legislation.16 There is some irony in the attack on the seniority system on grounds that it permits senile old men to block desirable, progressive legislation. Granted that the system is iniquitous, it nevertheless manages to throw up some committee chairmen who are ideally situated to block bad, regressive legislation. The President and his advisers must curse the luck that has brought about so much trouble in committee assignments; for legislation which assuredly would easily pass once it reached the floor has been held up in committee.

During the House hearings heavy criticism of the Organized Crime bill has come from some representatives of the organized Bar, such as the Association of the Bar of the City of New York. This admirable organization has made its usual careful study of the bill, has issued a 106-page analysis of the measure, and has concluded:17

The draftsmen of this bill have made changes which sweep far beyond the field of organized crime…many of these changes have not been adequately thought through. The bill as presently drafted frequently hits targets which were not intended and misses those which were…. Even more disturbing…is the impatience which [the bill] shows for constitutional and procedural safeguards.

With the exception of The New York Times and the Washington Post, the press and television have paid little attention to this legislation and the general public remains unaware of the dangers inherent in legislation which reduces the constitutional protection of persons accused of crime and relaxes the restraints on prosecutors, not just with respect to so-called organized crime but with respect to everyone.

Not only will this bill do no good as it may be applied to organized crime, but if it hurts anyone, it will not hurt the “bad guys,” but each one of us.

There is no chance whatever of defeating this legislation; but it just possibly will not be sent to the President for signature during the current session, thanks to Emanuel Celler, the seniority system, and luck.

The Dangerous Drug Legislation. The Senate unanimously passed, on January 28, 1970, the Controlled Dangerous Substances Act,18 as reported by the Judiciary Committee. The bill, originally sponsored by Senator Dodd, consolidates all existing legislation on narcotics, marijuana, and dangerous drugs; abandons reliance for drug control on Congress’s taxing power and instead relies on the broader treaty power and the interstate commerce power;19 places all functions under the control of the Attorney General; modifies the penalty structure,20 and permits the government to use “no-knock” procedures for searches and seizures not merely in the District of Columbia but nation-wide.

Before the final vote, the Senate rejected amendments proposed to delete the “no-knock” authority21 and lessen the penalties for distribution or possession of marijuana.22 The Senate by voice vote adopted an amendment to conform the immunity and sentencing provisions to those adopted five days before in the Organized Crime bill.23

Oddly enough, no one proposed to revoke the contemplated grant of plenary authority to the Attorney General. One can only assume that the Administration’s many successive weakenings of its original plea for harsh penalties were understood to be a trade-off for silencing senatorial objections to entrusting drug powers to the Attorney General.

The muting of senatorial objections was only temporary. Senator Harold Hughes (D., Iowa) began to hold hearings on his own bill before his Subcommittee on Alcoholism and Narcotics of the Labor and Public Welfare Committee. Hughes’s bill would create a new federal agency to coordinate prevention of drug abuse, treatment, and rehabilitation. His bill had the enthusiastic support of doctors and health experts outside the government and of the liberal Mayor Kevin White of Boston. His bill was attacked by a unanimous chorus of Administration supporters, including Dr. Roger Egeberg, Assistant Secretary of Health, Education, and Welfare, who voiced his satisfaction with the Senate-passed bill, and John E. Ingersoll, Director of the Justice Department’s Bureau of Narcotics and Dangerous Drugs, who said:24

The Justice Department strongly opposes S. 3562, in particular for a generalized finding that drug dependence is an “illness or a disease” rather than a crime. This broad finding goes far beyond existing court decisions and might be a serious impediment to criminal prosecutions.

Ingersoll is right, according to his lights. A legislative statement that drug dependence is an “illness” would imperil the entire structure of criminal penalties in the drug field, for if drug dependency is legislatively labeled as an “illness,” then the Supreme Court may possibly have the basis for destroying the whole structure of criminal penalties for people who suffer from this “illness.” Senator Hughes’s diversionary action is, in the present state of affairs, unfortunately doomed. (But isn’t it nice that the Senate establishment has permitted a liberal like Hughes to have a subcommittee all his own?)

Meanwhile, the House has had to wrestle with the bill passed by the Senate. The House has managed to develop a conflict of jurisdiction over the bill. The Ways and Means Committee claimed that it should handle the bill because its authority over tax measures had up to now always given it authority over narcotics bills. The Interstate and Foreign Commerce Committee asserted that it had jurisdiction over legislation dealing with drugs. Interestingly enough, the House Judiciary Committee stayed out of the dispute, even though the Senate bill had originally been reported on by its Judiciary Committee.

The dispute was resolved in Solomonic style by splitting the bill into two parts: a part on narcotics and marijuana, referred to Ways and Means, and a part on stimulants, depressants, and hallucinogens, referred to the Subcommittee on Public Health and Welfare of the Commerce Committee. Public Health and Welfare began its bearings in February. The Senate bill and its House counterpart ran into a heavy barrage of criticism from doctors and civil libertarians. Former Commissioner of Food and Drugs, Dr. James L. Goddard, testifying for the American Public Health Association, vehemently assailed the bill as passed by the Senate:25

The Senate-passed drug control bill (S. 3246) places undue emphasis on law enforcement as a weapon against drug abuse. The provisions for enforcement threaten civil liberties. Authority for drug research and education should not be assigned to the Attorney General, as in the Senate bill.

  1. 9

    A piece of remedial legislation, which together with the Criminal Justice Act of 1964 was a product of the work of the Attorney General’s Committee on Poverty and the Administration of Federal Criminal Justice. It is a long way from that progressive legislation to the morass in which we are now mired. The earlier legislation couldn’t possibly be passed today. Yet it offers a nice handle for the Nixon Administration to use for the purpose of completely reversing the Bail Reform Act’s original intention.

  2. 10

    The recent events at The Tombs in New York City serve to underscore the probable effect of preventive detention.

  3. 11

    Quoted in Congressional Quarterly, Weekly Report, June 5, 1970, p. 1,499.

  4. 12

    This provision of Title II attempts to take advantage of the opening possibly given by recent Supreme Court decisions to eliminate the “transaction” test for determining the constitutionality of immunity statutes laid down in the classic case of Counselman v. Hitchcock, 142 U.S. 547 (1892). Ever since that decision, Congress has always provided that the immunity conferred in exchange for testimony must be co-extensive with the transaction which is the subject matter of the witness’s testimony. Counselman displaced the narrower “use” test, which protected the witness’s testimony from subsequent prosecution.

    Now the Senate, in the name of law and order, proposes to return to the “use” test. See Report on S. 30, Organized Crime Control Act of 1969, 91st Cong., 1st Sess., pp. 51-6 for an account of how Senator McClellan, the bill’s principal sponsor, intends to subvert “strict construction” of the Constitution in order to forward his own ideas about fighting crime.

  5. 13

    See Report, supra n. 12, at pp. 56-7 for corroboration of the fact that this is precisely what the bill does.

  6. 14

    Title VII purports to overrule the Supreme Court’s decision in Alderman v. United States, 394 U.S. 165 (1969), which denied the court the right to screen the challenged files in camera because to do so would interfere with the effectiveness of the adversary process. Senator McClellan thinks that Alderman was not a constitutional decision but merely an exercise of the Court’s supervisory power over the lower federal courts. His opinion has already been sharply disputed, and the question will have to be settled by the Court, if the bill is enacted.

    Nonetheless, the Senator’s judgment on the wisdom of overruling Alderman is certainly open to question. He offers in support the view of Attorney General Mitchell that Alderman “was a great disappointment to the Department.” Of course it was; what prosecutor would want to expose the results of his possibly illegal activities to the adversary process? Necessity, as William Pitt once remarked, is “the plea for every infringement of human liberty. It is the argument of tyrants. It is the creed of slaves.” I discovered this quotation in the course of reading Sam Ervin’s comments on the DC Crime bill. See note 23.

  7. 15

    The Organized Crime bill does not apply merely to mobsters. Every one of the preceding provisions, as well as this harsh and possibly unconstitutional penalty provision of Title X, applies completely across the board. For those who would like to see a complete analysis of the bill, I recommend The Proposed Organized Crime Control Act of 1969 (S. 30), by the Committee on Federal Legislation of the Association of the Bar of the City of New York.

  8. 16

    In opening the hearings before the House Committee on May 30, 1970, Mr. Celler said:

    In our zeal to attack the problem of organized crime, it is imperative that we do not trample on basic constitutional or procedural safeguards. If we do, the cure will prove far more devastating than the illness.

  9. 17

    Curiously, only a few marginal attempts were made to water down some of the more outrageous provisions of this legislation before the final vote in the Senate.

  10. 18

    S. 3246.

  11. 19

    The constitutional basis of the first narcotics legislation, the Harrison Act of 1912, was the tax power. It has been used by all subsequent legislation. Although the constitutional basis of narcotics legislation doesn’t greatly matter, the change will presumably end the jurisdiction of the House Ways and Means Committee.

  12. 20

    Principally, diminution of penalties for the possession of marijuana to one year. So much for the magnanimity of Attorney General Mitchell and the Senate.

  13. 21

    Offered by Senator Ervin, and defeated narrowly despite the support of an odd combination of moderates and conservative Southerners.

  14. 22

    Offered by Senator Hughes and defeated by a lopsided majority.

  15. 23

    Senator Ervin was curiously silent when the Organized Crime bill was being considered.

  16. 24

    Mr. Ingersoll is, of course, the principal bureaucratic beneficiary of this senatorial largesse.

  17. 25

    Dr. Goddard, it will be recalled, lost his government position primarily because he adamantly insisted on taking a public position on the marijuana issue directly contrary to that of the Administration.

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