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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.

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.

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. 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.

  9. 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.

  10. 10

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

  11. 11

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

  12. 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.

  13. 13

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

  14. 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.

  15. 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.

  16. 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.

  17. 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.

  18. 18

    S. 3246.

  19. 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.

  20. 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.

  21. 21

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

  22. 22

    Offered by Senator Hughes and defeated by a lopsided majority.

  23. 23

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

  24. 24

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

  25. 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.

  26. 26

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

  27. 27

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

  28. 28

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

  29. 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.

  30. 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.

  31. 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.

  32. 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.

  33. 33

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

  34. 34

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

  35. 36

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

  36. 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.

  37. 38

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

  38. 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.

  39. 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.

  40. 41

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

  41. 42

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

  42. 43

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

  43. 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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