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

His testimony was closely echoed by Dr. Henry Brill, testifying for the A.M.A.’s Council on Mental Health, and Dr. Jonathan O. Cole, testifying on behalf of the American College of Neuro-Psycho Pharmacology. The only witness who went for the jugular, Lawrence Speiser, the Washington representative of the ACLU, said:26

Criminal sanctions against the use and possession of marijuana represent “excessive and unconstitutional interventions” into individual rights. The ACLU supports [a bill] which transfers marijuana from the category of narcotics to that of depressant and stimulant drugs.

[This bill], by authorizing “no knock” warrants, “administrative inspection” warrants, and “administrative inspections” with no warrant at all represents an unconstitutional threat to individual freedom in the name of effective law enforcement.

No reflection of this sane view has so far appeared in any statement by a member of Congress, nor is it likely to do so as long as our current national delusion, in which drugs, the Mafia,27 hippies, and radicals are so thoroughly intermixed, persists.

By contrast, Wilbur Mills magisterially took his time before opening hearings in July before the Ways and Means Committee on his bill, which of course was endorsed by the Administration. The division of jurisdiction previously referred to turned out to be a complete smokescreen. The bill introduced by Wilbur Mills and referred to the Ways and Means Committee, H.R. 17463, is virtually a carbon copy of S. 3246, the bill passed by the Senate. Attorney General Mitchell announced, to no one’s surprise, that the Administration had made some minor concessions in response to objections raised before the Public Health and Welfare Subcommittee.28 If time doesn’t run out at this Congressional session, it seems likely that the Administration’s drug program will be enacted into law.

Pornography. The White House has endorsed two bills dealing with mailing pornography to minors and controlling prurient advertising generally. While the advertising bill appears to be in trouble,29 the main fuss about pornography has centered on the President’s Commission on Pornography, appointed in the last days of the Johnson Administration, whose report, originally due on September 15, was “leaked,” first to an unfriendly Congressional committee and then to the Associated Press, and, after surviving an attempt by a dissenting member to block its publication, finally was issued on September 30.

President Nixon, through his press secretary, denounced the commission’s report before he even saw it. This commission, the last of the Johnson commissions,30 has concluded that (a) there is no evidence that pornography harms anyone, (b) all federal, state, and local laws against selling or distributing pornography to adults should be repealed, (c) the sale of “sexually explicit” material to children should be banned, not because there is any evidence of harm to children, but because the fears of parents are “justification enough,” and (d) because many people object, there should continue to be laws treating pornography as a public nuisance: for example, laws prohibiting the public display of pornographic activities. This report will obviously get a frosty reception from Congress, whose members are either slaves of popular myths, dirty old men, or too cynical to resist what they believe their constituents want of them.

The Omnibus Crime Control Act of 1968. The 1968 act, which was pretty much the concoction of Senator McClellan, was repudiated by Attorney General Clark and has been eagerly embraced by the present Administration. Title I of the 1968 act established the principle of making “block grants” to the states for strengthening law enforcement; Title II purported to overrule decisions of the Supreme Court, like Mallory and Miranda, relating to confessions;31 Title III made electronic eavesdropping (bugging and wiretapping) legitimate.32

While there is little point in discussing the various amendments to the 1968 act which the President has asked for, there is a good deal of point in Commenting on the fierce struggle that is taking place over the allocation of Law Enforcement Assistance Administration (LEAA) funds. The LEAA was set up under Title I of the act of 1968. A coalition of Southern Democrats and Republicans succeeded in imposing the “block grant” concept on the legislation,33 whereby money is channeled to state governments, which then allocate the funds as they see fit. The “block grant” concept has been criticized on two grounds: (a) it deprives cities of their share of federal funds; (b) the states have given too much money to police departments, to the detriment of other parts of the criminal justice process, like the courts and correctional institutions, which badly need money.

City officials and liberals have mounted a strong attack on the “block grant” concept in hearings before the House and Senate Judiciary Committees.34 The attack proved only marginally successful when the House voted on June 30, 1970, to amend the 1968 legislation in the following respects:^35 earmarking 25 percent of all LEAA funds for correctional programs; (b) requiring the states to allocate an “adequate share” of funds to areas with a high crime rate. The Senate has not yet acted. Unfortunately, in spite of the restrictions in the House bill, the “block grant” concept survives intact.36

In mid-August, the Urban Coalition released a damning report on the first two years’ experience under the Omnibus Crime Control Act. After surveying the experience in twelve states (including New York, California, and Pennsylvania), the report concluded that “most of the money has been dissipated in small grants or invested in police hardware—an emphasis which, if continued, could cause a serious dislocation in the entire system of criminal justice.” The Nixon Administration, speaking through the Attorney General, enthusiastically endorsed the House bill. Obviously, the Administration is thoroughly committed to the “block grant” concept; when it comes to spending federal funds on crime control, it is unwilling to put its money where its mouth is. The Administration is saying, in effect: Funnel the money through the states to the suburbs, and the hell with the cities.

II

Since it is unlikely that Congress will soon change its attitude toward the crime problem, the question is: What, in the short run, should be the strategy of those who would like to see Congress use federal power effectively to curb “crime in the streets,” and to improve the police, the courts, and correctional institutions? As we view the current confusing picture of the Congress, what is to be done?

The first step must be to bring pressure on Congress to end the present non-system for considering legislation on crime.37 By my count, there are four Senate committees38 and five House committees39 actively involved in the current maneuvering about crime, to say nothing about the two Appropriations committees. Perhaps the best interim solution would be to create a joint committee charged with jurisdiction to consider how legislative authority with respect to crime can best be exercised.

There exists an extemely opportune instrument for suggesting the necessary changes in the committee system. The National Commission on Reform of Federal Criminal Laws has just published a study draft and two volumes of working papers. Despite its distinguished chairman40 and its experienced executive director,41 these documents reveal not a syllable about how its legislative recommendations ought to be handled by the Congress. One can only hope that this omission will be rectified in the commission’s final report. Confined as its “reform” proposals are to technical legal changes in the criminal law, the commission is not a vehicle for considering sweeping substantive changes. It is primarily an instrument for tidying up the criminal law, whose importance I do not mean to disparage.

Some would doubtless say that my appeal for legislative reorganization should be ignored until that millennial moment arrives when public opinion on crime accords with a sensible solution to the crime problem. I can only reply that I don’t believe in millennia, and that I think that, in the short run, we ought to get on with doing what is possible to patch up our institutions. In the long run, to paraphrase Keynes, we may all be dead.

III

A sensible legislative program for dealing with crime has been proposed by two academic experts, Norval Morris and Gordon Hawkins, in their book The Honest Politician’s Guide to Crime Control (University of Chicago Press). Their program consists of a series of what they call “ukases,” stated dogmatically and (with some exceptions) ably defended in their book. Their first and eighth chapters, “The Overreach of the Criminal Law” and “Organized Crime and God,” bear with particular force on the President’s crime program. Their ukases as to the overreach of the criminal law are as follows:

  1. Drunkenness. Public drunkenness shall cease to be a criminal offense.

  2. Narcotics and drug abuse. Neither the acquisition, purchase, possession, nor the use of any drug will be a criminal offense. The sale of some drugs other than by a licensed chemist (druggist) and on prescription will be criminally proscribed; proof of possession of excessive quantities may be evidence of a sale or of intent to sell.

  3. Gambling. No form of gambling will be prohibited by the criminal law; certain fraudulent and cheating gambling practices will remain criminal.

  4. Disorderly conduct and vagrancy. Disorderly conduct and vagrancy laws will be replaced by laws precisely stipulating the conduct proscribed and defining the circumstances in which the police should intervene.

  5. Abortion. Abortion performed by a qualified medical practitioner in a registered hospital shall cease to be a criminal offense.

  6. Sexual behavior. Sexual activities between consenting adults in private will not be subject to the criminal law. Adultery, fornication, illicit cohabitation, statutory rape and carnal knowledge, bigamy, incest, sodomy, bestiality, homosexuality, prostitution, pornography, and obscenity; in all of these the role of the criminal law is excessive.

  7. Juvenile delinquency. The juvenile court should retain jurisdiction only over conduct by children which would be criminal were they adult.

They support these ukases with arguments which by now are familiar to most intelligent people. They assert that (1) the most important task of the criminal law is to protect persons and property; (2) it detracts from the performance of these essential functions for the criminal law to be concerned with the mere enforcement of morals; (3) a cost-benefit analysis of the questionable provisions of the law defining offenses would demonstrate that they ought to be repealed.

In their chapter on “Organized Crime and God,” their sole ukase is: “All special organized crime units in federal and state justice and police departments shall be disbanded.” They undertake to explode the myth of organized crime, which they treat as if it belonged to the realm of metaphysics or theology. We tend, they say, to speak of organized crime “in terms which imply divine attributes such as invisibility, immateriality, eternity, omnipresence, and omnipotence” (p. 206). In their attack on the sociologist Donald Cressey, the author of Theft of a Nation and numerous articles defending the concept that a single Mafia exists, the authors come as close to proving the nonexistence of the entity “organized crime” as it seems possible to come:

The argument is worth examining briefly. Under the heading “The Structural Skeleton,” Professor Cressey provides an outline of the “authority structure” or “organizational chart of the American confederation.” Twenty-four “families,” each with its “Boss,” are said to operate under the “Commission,” which “serves as a combination board of business directors, legislature, supreme court and arbitration board.”

After giving some details of “the formal structure of the organization,” Professor Cressey deals briefly with street-level operations and more informal functions. He then concludes briskly: “The skeleton has more bones than those we have described, as our discussion of informal positions and roles indicates. The structure outlined is sufficient to demonstrate, however, that a confederation of ‘families’ exists” [our italics].

It scarcely seems necessary to point out that, if “to demonstrate” here means “to prove by reasoning” or “to establish as true,” the existence of the confederation cannot be said to have been demonstrated. [p. 209]

Difficult as it is to prove a negative, I prefer to pose the argument from the economic point of view. Organized crime, whatever it may be, is after all an economic phenomenon. There is little doubt that what I prefer to call “disorganized crime” probably bears a closer resemblance to a market characterized by monopolistic competition than to a market characterized by a single monopoly or even by oligopoly.

The close connection between the chapters on “Overreach” and “Organized Crime” can be easily overlooked. The authors are open to criticism for not juxtaposing the chapters and otherwise making the connection clearer. For one thing, police corruption, which accompanies both “overreach” and attempts to suppress organized crime, is not even mentioned in either chapter.42

Although the authors do not deal directly with current proposals for pretrial preventive detention, their position can be inferred from what they say about predicting “dangerousness.” They conclude that the research that must precede any effort to define “dangerousness” still remains to be done. I am skeptical of pleas for “more research”; yet the authors are good behavioral scientists for whom “research” (preferably empirical) is life’s blood itself.

Messrs. Morris and Hawkins will have to wait a long time until public opinion has caught up with their program. The close relationship between the enforcement of morals through the criminal law and the alleged phenomenon of “organized crime” will have to be exposed, not so much by “more research” as by the lessons of history, which people are in a good position to understand. The analogy of our experience with Prohibition is so close that, unless we have completely lost our historical sense,43 intelligent people will ultimately understand that the enforcement of morals through the criminal law breeds crime at a fantastic rate and that “organized crime” is simply a convenient myth.

Until public opinion changes, and the press and television start to see clearly the true dimensions of the crime problem,44 I see no hope at all of overruling senatorial troglodytes like John McClellan by persuading otherwise reasonable legislators like Joseph Tydings that the way to fight crime is not to abrogate constitutional guarantees. The long run, on this view, is so far off that it is hard to have any hope at all.

  1. 26

    Testifying before the House Subcommittee on Public Health and Welfare on February 18, 1970, as reported in Congressional Quarterly, Weekly Report, p. 639.

  2. 27

    Of course, the Attorney General has told us that words like “Mafia” and “Cosa Nostra” are now taboo.

  3. 28

    Congressional Quarterly, Weekly Report, July 24, 1970, pp. 1904-5.

  4. 29

    The advertising industry has launched an all-out attack on the bill which one assumes will probably be successful, in spite of Senator Mansfield’s well-known interest in controlling prurient advertising. The majority leader usually gives way when big lobbyists attack his position. Although he was assured when he sought to tack his bill to Organized Crime bill that the Post Office Committee would report a similar bill to the Senate within a month or so, the bill has, as far as I am aware, yet to be reported.

    The colloquy between Senators Mansfield and McGee, the Chairman of the Senate Post Office Committee, ended with Mansfield saying: “The Senator’s word is as good as his bond.” This exchange took place on January 22, 1970, Congressional Record, pp. S 419-421. While the House passed H.R. 11032, a bill prohibiting the use of interstate facilities, including the mails, to transport unsolicited obscene advertising, on August 3, 1970, the Senate has not yet had a similar bill reported to it.

    The Senate has just passed a bill permitting people who receive unsolicited pornographic mail to return it. The original sender pays the return cost; however, no criminal penalties are involved.

  5. 30

    The others were the Crime Commission, the Kerner Commission, and the Violence Commission. All four approached the crime problem quite differently from the prevalent spirit of the Nixon Administration.

  6. 31

    See my article on the Miranda decision, “Who Can Police the Police?” New York Review, September 8, 1966. For an account of the passage of Title II, see Harris, The Fear of Crime, pp. 58-98.

  7. 32

    The title of the 1968 legislation, together with Attorney General Mitchell’s assertion that “executive privilege” alone enables the use of electronic surveillance where “national security” is at stake, is currently under sharp attack in federal courts.

  8. 33

    See Richard Harris, The Fear of Crime, pp. 84, 96-7.

  9. 34

    For the best account of the fight that I have read, see Congressional Quarterly, Weekly Report, February 27, 1970, pp. 646-649.

  10. 36

    In spite of restrictions, the states still have, under the House bill, the same power to make allocations as they previously had.

  11. 37

    I mean to include the seniority system in my general criticism of the existing arrangments (if they can be called that) for considering legislation on crime.

  12. 38

    District of Columbia Committee, Judiciary Committee, Labor and Public Welfare Committee, Post Office and Civil Service Committee.

  13. 39

    District of Columbia Committee, Interstate and Foreign Commerce Committee, Judiciary Committee, Post Office and Civil Service Committee, Ways and Means Committee. I do not include the ineffectual Select Crime Committee, under the chairmanship of Claude Pepper (D., Fla.), which holds hearings but considers no legislation.

  14. 40

    Former Governor Pat Brown of California, who ought to know that when one proposes legislation one must be extremely wary of how the legislative body considers it.

  15. 41

    Professor Louis B. Schwartz of the University of Pennsylvania Law School, formerly reporter for the American Law Institute’s Model Penal Code.

  16. 42

    The sole reference is in the chapter on “The Police and the Citizen,” pp. 108-9.

  17. 43

    My colleague, John Kaplan, calls his recent devastating attack on the marijuana law Marijuana: The New Prohibition (1970).

  18. 44

    I congratulate the Luce publications which are beginning to see the connection between the enforcement of morals and the myth of organized crime. I omit from this praise Life, which, true to the spirit of The Founder, continues to tilt at invisible windmills.

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