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OPINION * OPINION * OPINION * OPINION * OPINION * OPINION
Speech to Delaware Bar Association Law Day Luncheon, April 28, 1994
Given the complexity of American society and its myriad social,
political and economic problems, it seems that "just solutions" are hard
to come by, always just beyond our grasp. And yet, we try. Today, the
nation is struggling to find a more just and equitable health care system.
This is a gigantic undertaking, fraught with difficult decisions at every
turn. But, we're working on it. We seem also to be on the threshold of a
national effort to reform the welfare system. Although profound
disagreements exist about how to accomplish welfare reform, we will try.
There is one system, however, that seems immune from serious
discussion, debate and reform, although it is just as ineffective,
wasteful, cruel and discriminatory as our current system of health care.
It is a system that I suspect directly impacts many of you here. I'm
speaking of the criminal justice system and it is badly broken.
It's not broken in any intrinsic sense. When the framers of the
Constitution constructed the American system of justice they created
something wonderful. Building upon England's break with the inquisitorial
system, in which criminal suspects were compelled to testify against
themselves, often under pain of torture, they codified in the Bill of
Rights the most enlightened thinking of the Age of Enlightenment. They
replaced the inquisitorial system with an accusatory system -- absolutely
radical in its underlying premise that the accused was innocent until
proven guilty. The Fourth Amendment's protection against unreasonable
searches and seizures, the Fifth Amendment's protection against
self-incrimination and double jeopardy, the right to be tried speedily and
in public, to have a trial by jury, to have notice and an opportunity to
confront and cross-examine witnesses, the right to counsel and not to be
subject to excessive bail. All told, the Constitution includes 22
separate provisions concerning the conduct of a criminal trial.
This bundle of procedural rights was designed to ensure that the
people accused of crimes would have a fair opportunity to respond, and
that the government would bear the burden of proving guilt beyond a
reasonable doubt to an impartial jury. The early Americans did not
consider these rights to be "the rights of criminals." They were
political rights designed to protect every citizen from government abuse
and tyranny. They believed that such a system would prevent innocent
people from being punished. But they also believed that their system was
better than any other at discovering the truth.
I think they were right. No system is perfect, but in theory,
ours is the best on this planet, both in terms of protecting the innocent
and convicting the guilty. As Justice William O. Douglas put it, "It is
procedure that spells much of the difference between rule by law and rule
by whim and caprice."
How tragic then that in its contemporary incarnation, our criminal
justice system is in such desperate straits. Five years ago, the ABA's
Special Committee on Criminal Justice in a Free Society issued its report,
"Criminal Justice in Crisis." Also called the "Dash Report" after the
committee's chair, Sam Dash, it described a system on the brink of a
nervous breakdown -- starved for financial and human resources,
overburdened with cases, and, perhaps most importantly, charged by the
public with the impossible task of eliminating crime. The system is
straining under the very weight of its awesome and unrealistic
responsibilities; in the process the core procedural rights which the
Framers believed would shield the innocent from governmental abuse have
been seriously undermined.
It is of course true that the Framers could not have imagined the
urban violence and decay that now surround us. We are all too familiar
with the grim statistics. Some crimes are up and some are down, but
according to the Federal Bureau of Justice Statistics, 23 percent of U.S.
households were victims of violent crime in 1992. That is an astonishing
fact, especially when compared crime rates in other industrialized
countries. Our homicide rate is more than 14 times that of Great Britain.
The mood of the American public is not unlike that of an angry mob
in a 1950s Western -- "let's hang him from the highest tree..." It is a
mood of retribution and vengeance, not justice and mercy. The
surprisingly widespread support for the caning of an American teenager in
Singapore, accused of a minor property crime, is a good measure of the
public's anger. The mood is understandable, but it ought not to be
pandered to. Much of it is based on perception and not reality. Yes, the
crime rate is unacceptably high, although contrary to popular perception,
it has not risen dramatically in the past ten years. In many categories
it has declined dramatically. According to the National Crime Survey, for
example, the burglary rate dropped by 29 percent between 1980 and 1990.
Earlier this month the LA Times conducted a poll that surveyed
Californians on a variety of crime-related issues. Although half cited
crime as one of the state's two most important concerns (the other being
the economy), 3 out of 4 said they felt safe in their own community. The
newspaper's polling director was quoted as saying, "This is a
media-generated set of concerns."
Well, I am the first to defend the freedom of the press to print
and broadcast murder and mayhem because it makes exciting copy and sells
newspapers and TV shows. But public policy should be based on research,
study, and careful deliberation, not on anger, frustration and hyperbole.
And yet, that is exactly what has happened. In the realm of
criminal justice policy, the tyranny of the voting public prevails. Our
lawmakers have abdicated their responsibility to deal with crime and
violence in a serious way, choosing instead to compete with one another to
introduce the meanest, toughest-sounding measures with little thought
given to effectiveness or cost. The latest round of debates over the
perennial crime bill in Congress is a perfect example of this sad
phenomenon. A few months ago, your Sen. Joe Biden, in a moment of
surprising candor, admitted that "if someone came to the floor and said we
should barb wire the ankles of anyone who jaywalks, I think it would
In such a highly charged atmosphere, people show little concern
for what are contemptuously referred to as "constitutional niceties" or
"constitutional technicalities." The Bill of Rights and crime control
come to be seen as two opposing forces, inconsistent and irreconcilable.
As the cries for public safety grow more strident, fundamental liberties
seem less indispensable. As Justice Thurgood Marshall wrote in his
passionate dissent from the Supreme Court's 1989 decision legalizing
suspicionless urine tests of government workers, "History teaches us that
grave threats to liberty often come in times of urgency, when
constitutional rights seem too extravagant to endure."
Here is another quote: "Sometimes you got to sacrifice your
rights to save your life. As far as I'm concerned, the Constitution needs
to be changed." That was Daisy Bradford, 32-years old and a resident of
the Robert Taylor Homes in Chicago. Earlier in her interview with the NY
Times, Ms. Bradford conceded that the sacrifice in question, random,
warrantless searches of public housing tenants' apartments, "make you feel
like a criminal."
The current controversy swirling around the solution to crime and
violence in public housing is a poignant example of the trade-off some of
our citizens are being asked to make and a reminder of how fragile our
civil liberties are, especially if we happen to be poor, black and
powerless. The conditions of life in America's public housing are
appalling, and violence, mostly drug-related, is pervasive.
Last month the Chicago Housing Authority instituted the so-called
drugs and weapons sweeps -- warrantless searches of tenants' apartments.
Soon after the Illinois Civil Liberties Union went to federal court and
obtained an injunction against the sweeps. A week later, President
Clinton announced during a radio address that AG Reno and HUD Secretary
Cisneros had come up with a "constitutionally effective way" to conduct
the searches: tenants would be asked to sign leases that contained a
standing consent to police searches of their homes.
What is the just solution to the problem of crime and violence in
the Robert Taylor Homes and other public housing projects throughout the
country? Must poor people waive their constitutional right to privacy,
or, as Justice Frankfurter once described it, the "right to be left alone
-- the right most valued by civilized men," in order to put an end to gang
My answer is a resounding, "NO." The principal finding of the
Dash Report, based on the Bar Committee's interviews of hundreds of police
officials, prosecutors, defense attorneys and judges, was that
constitutional requirements like the Miranda warnings, the exclusionary
rule, the right to counsel and search warrants do not get in the way of
effective law enforcement.
Short of a complete breakdown in civil order, fundamental
constitutional rights must be zealously safeguarded for, once again in the
words of Justice Marshall, "principles of law, once bent, do not snap back
There are both short term and long term "just solutions" to the
other crime problems that plague all of America's Robert Taylor Homes.
Short term: It's simple. Give the tenants of public housing
adequate police services. They are not getting them now, and they never
have. In preparation for our lawsuit against the Chicago Housing
Authority, we called upon James Fyfe, a former public housing police
officer, and now a scholar and expert on law enforcement issues, to
observe conditions at Robert Taylor Homes. He observed that in the
lobbies of several buildings, people who had set off metal detectors were
not stopped by security guards but were allowed to walk unimpeded into the
buildings. In his affidavit, Fyfe noted that there was no way to secure
the buildings if the lobbies and entrances were not secured. He also
noted that the CHA had not instituted vertical patrols, a routine practice
in other cities' public housing developments. Vertical patrols are groups
of police who walk through the halls and common areas of high rise
apartment buildings, looking for concealed weapons, drugs, and ongoing
criminal activity. They are, he said, far more effective than
suspicionless searches of people's homes.
Long term: Two major transformations need to take place in the
way we develop crime control strategies and criminal justice policies.
First, we have got to begin to deal with the underlying causes of crime.
Every national commission that has looked at crime has concluded that the
link between crime and poverty is irrefutable. The typical inmate in a
U.S. jail or prison is minority, male, young and uneducated. Over 40% of
inmates are functionally illiterate, and one-third were unemployed when
arrested. These statistics should tell us something important about the
link between crime and lack of opportunity. We will not be able to make a
dent in the crime rate until we address these deep social and economic
problems and devote substantial resources to crime prevention programs.
Second, end drug prohibition. The war on drugs is a trap; we will
never win it. The truth is that the people who benefit the most from
prohibition are the drug traffickers. Our drug laws serve as protective
legislation for organized crime: no taxation, no regulation and no
quality control. And just as alcohol prohibition gave birth to Al Capone,
drive-by shootings and the corruption of public officials, drug
prohibition has spawned a culture of violence and corruption. That is
what is going on in the Robert Taylor Homes. Today, the main economic
opportunity program we have for inner-city youth is drug dealing.
Will drug legalization end drug abuse? No, but neither will
prohibition. What legalization will do is sever much of the drug-crime
connection by seizing the market away from criminals. That is what
Surgeon General Jocelyn Elders alluded to in her extemporaneous suggestion
at the National Press Club that we examine alternatives to drug
prohibition. The Administration's unwillingness even to discuss the issue
is, unfortunately a typical response to those few public officials who are
brave enough to say loudly and clearly that 75 years of prohibition have
gotten us nowhere except to create all sorts of unintended problems that
turn out to be even worse than the drugs themselves. Like the one million
Americans behind bars. Like gridlocked courts. Like the unchecked spread
of AIDS among intravenous drug users. Like the steady erosion of our
Just solutions in the area of criminal justice must be new
solutions. For the past 20 years, we have relied almost exclusively on
high arrest rates, harsh sentencing laws and incarceration. This back end
approach to crime has yielded little in the way of benefits to society.
According to the Dash Report, out of 34 million serious crimes committed
every year, only 3 million result in arrests. Mandatory sentencing laws
and habitual offender laws, like the current favorite, 3 strikes, you're
out, do not have a strong deterrent effect because those who commit crimes
believe, with good reason, that they not be caught. Therefore, we must
figure out how to prevent those 31 million unsolved crimes from happening
in the first place. It is in our enlightened self interest to press for
economic and educational opportunities for young people and for a
fundamental reappraisal of our drug laws.
The organized bar has played a crucial role in advocating more
humane, more effective and more just criminal justice policies. I hope
you will continue to press for reforms that make sense and that preserve
our constitutional liberties.
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