Civil Liberties The National Newsletter of the ACLU #380, Spring 1994 (c) 1994 American Ci

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Civil Liberties The National Newsletter of the ACLU #380, Spring 1994 (c) 1994 American Civil Liberties Union Speaking Of Reform -- Remember Criminal Justice By Loren Siegel Much talk of reforming the health care system is in the air, but the United States criminal justice system is just as much in need of mending. It is just as ineffective, wasteful, cruel and discriminatory, and the social and political consequences of its failures are just as profound. However, no serious national debate on what to do about that problem is taking place. The oversight is especially troubling given that the policies that have been in place for the past 20 years, with their almost exclusive reliance on arrest, harsh sentencing and incarceration, have yielded so little. Do you, reader, feel safer knowing that more than one million Americans are behind bars? Probably not. Public fears persist because although the crime rate has dipped by one or two points in the last couple of years, it is still unacceptably high and far exceeds that of other industrialized nations. The Federal Bureau of Justice Statistics estimated that in 1992, violent crime visited 23 percent of U.S. households. The intractability of violent crime has placed enormous pressures on civil liberties, creating a political climate in which it is easy for politicians and others with anti-civil liberties agendas to tell voters that they must choose between public safety and constitutional rights. But that is a false dichotomy. Real security does not have to come at the expense of our rights. Claims that it does ignore the poverty, lack of opportunity and social, political and economic marginalization that are the real causes of most violent crime. President Clinton's performance in the area of criminal justice policy has been consistently disappointing. He has supported rights-threatening practices, including the most egregious of them all -- the death penalty -- and distanced himself from those of his own political appointees who question the failed policies of the past. For example, when Surgeon General Jocelyn Elders, in a moment of refreshing candor, suggested that drug legalization be "studied" as a way to quell drug-related violence, the President immediately dismissed the possibility of even discussing the issue. More recently, the President has embraced two proposals that deeply offend fundamental constitutional principles. In his State of the Union address, he touted "Three Strikes, You're Out" laws, now pending in Congress and numerous state legislatures. And in April, he welcomed a proposal that public housing leases include "consent" clauses whereby tenants would agree to allow police searches of their homes, unannounced and without warrants. Three Strikes, You're Out "Three Strikes" puts a new spin on the old habitual offender laws by imposing a mandatory life sentence without parole after three "violent" felonies. (A recently enacted California law provides that the third felony, after two violent ones, can be any felony at all. Meanwhile, Pennsylvania proposes to treat prostitution and burglary as "strikes.") Although the sponsors of "Three Strikes" claim their purpose is to immobilize society's most dangerous felons, in practice these laws cast a far wider net. For example, the third "three-time loser" sentenced in Washington State stole $151 from a store while pretending to have gun in his pocket. He hurt no one in that or either of his two prior felonies. By requiring judges to impose life sentences on people convicted of relatively minor property crimes, "Three Strikes" violates both the ancient rule of proportionality -- "let the penalty fit the crime" -- and the Eighth Amendment: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted...." Moreover, 20 years' experience with the no-deterrence result of harsh sentencing laws should tell us that "Three Strikes" may satisfy the public's hunger for retribution, but it will have zero impact on the crime rate. Most violent crimes are not premeditated; they are committed in anger, in passion, or under the influence of alcohol. Even the prospect of a life behind bars will not stop impulsive actors who, anyway, fully expect to elude arrest. "Three Strikes" will create a huge, geriatric prison population at huge taxpayer cost without a significant payoff. Why? Because most crimes are committed by men between ages 15 and 24. Of all serious crimes, only one percent is committed by people over the age of 60 -- meaning that age is a powerful crime reducer. Age... and maybe for young men, hope? "Consent Searches" of Public Housing Apartments Faced with rampant violence in public housing developments, some housing authorities have resorted to unconstitutional measures to assuage tenants' demands for enhanced security. Following an upsurge in gang warfare at Chicago's Robert Taylor Homes, the housing authority there instituted warrantless "weapons sweeps" of apartments. The Illinois Civil Liberties Union immediately went to federal court and obtained an injunction prohibiting the sweeps. The judge agreed that they violated tenants' Fourth Amendment rights. A week later, President Clinton announced that Attorney General Janet Reno and Henry Cisneros, the Secretary of Housing and Urban Development, had come up with a "constitutionally effective way" to do the unconstitutional: Tenants and prospective tenants could be asked to sign leases that include a standing consent to have their apartments searched for drugs and weapons. Read the President's lips: If you are poor and dependent on the government for shelter, we will oblige but only if you "voluntarily" waive the fundamental rights that everyone else is guaranteed. Would you, reader, sign such a lease? This alleged solution to armed violence in public housing is particularly disturbing since constitutional policing strategies that promise more effectiveness have not even been tried. After observing security conditions at the Robert Taylor Homes, a police veteran of New York City public housing, now a law enforcement scholar and consultant, gave expert testimony for the Illinois CLU that guards consistently failed to stop people who set off metal detectors as they entered the lobbies. Random searches of apartments, he testified, while entry to the buildings is virtually unrestricted, would not be effective. Instead, the housing authority should secure the lobbies and form "vertical patrols"-- regular patrols through the common areas on each floor of the high rise buildings -- to check for guns and criminal activity. "Three Strikes, You're Out" laws and apartment sweeps may sound good to a frustrated and desperate public, but they are twice flawed: They are unconstitutional, and they will not work. -------------------- Loren Siegel is director of the Public Education Department of the ACLU. ============================================================= ACLU Free Reading Room | A publications and information resource of the gopher://aclu.org:6601 | American Civil Liberties Union National Office ftp://aclu.org | mailto:infoaclu@aclu.org | "Eternal vigilance is the price of liberty"

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