University of Virginia Library

Colloquium

Tying The Hands Of Justice

By JACK ZACKIN

"Crime does not pay." This
is the lesson President Nixon
wants to make clear to the
lawless elements of American
society. Recently the
President submitted to
Congress his administration's
proposed revision of the
Federal Criminal Code. The
new code contains provisions
which increase penalties and
reduce the discretion of
Federal judges in imposing
sentences.

One proposed amendment
calls for mandatory sentences
of up to life imprisonment,
without parole, for sellers of
hard narcotics. Minimum
prison terms are also stipulated
in two other areas – for
persons using dangerous
weapons in the commission of
crimes, and for those convicted
of being leaders of organized
crime.

The most controversial
proposal is the restoration, and
automatic imposition, of the
death penalty, for such crimes
as skyjacking when death
occurs, bombing public
buildings, and killing Federal
law enforcement officials and
prison guards. We must get
tougher with criminals, so the
logic goes, both because they
deserve it, and because the
example will deter would-be
lawbreakers in the future.

Without a doubt, the high
crime rate is one of the
nation's most serious domestic
problems. The situation is
especially bad, of course, in the
big cities. Although recent (but
highly disputed) statistics show
that the total number of crimes
in major cities decreased in
1972, they also reveal that the
rate of violent crimes,
including murder, rape, and
assault, is still increasing.

Indeed, cities such as New
York and Washington seem to
be dissolving into a condition
of lawlessness unmatched in
this country since the days of
the Wild West. Many people
(including all store-keepers) in
inner-city areas now feel it
necessary to own a gun.
Murders are so common that
only the most spectacular are
even mentioned in local news
reports. In New York recently,
a band of robbers was trapped
in a sporting-goods store and
shot it out with police in a
scene reminiscent of the O.K.
Corral. In fact, it is probably
true that living in any of our
major cities is a far more
dangerous enterprise than was
living in Dodge City, Kansas, or
Tombstone, Arizona, in the
days of Wild Bill Hickok and
Wyatt Earp.

City residents are
frightened. But they are also
angry. They are angry at the
thugs, at the dope pushers
(most street crime is
committed by heroin addicts
seeking money for a fix) and at
the government. They
rightfully demand that
something be done to insure
the security of their lives and
property. In response, the
President now calls for stiffer
penalties, including restoration
of capital punishment.

The merits of the current
proposals, both in legal and
moral terms, are hardly
self-evident. Perhaps of more
importance than debate over
any specific proposal, however,
is an understanding of the basic
philosophy which prompted
the revision of the criminal
code. In his radio address
announcing the proposed
changes, President Nixon
attributed the rise in crime to
what he termed "the growing
sense of permissiveness in the
1960's." To this he added that
"many people were reluctant
to take the steps necessary to
control crime."

These references, without
naming names, are an
ill-disguised attack on the
federal court system's handling
of criminal cases. Mr. Nixon
and his attorney-general take
the position that judges are
responsible for the high rate of
crime because they are "too
soft" on criminals., Aside from
imposing light or suspended
sentences in too many cases,
these judges are characterized
as giving every break to the
wrong-doer, before, during,
and after trial. They are, in
effect, tying the hands of
police and prosecutors who
attempt to bring criminals to
justice.

The most famous example
of supposed judicial hand-tying
is the Miranda doctrine which
requires that a suspect taken
into custody by police must be
warned of his Constitutional
right to remain silent and to
have assistance of counsel.

The procedure which
particularly infuriates those
who follow the Nixon position,
however, is the so-called
exclusionary rule. This
court-imposed rule provides
that evidence seized during an
illegal police search (such as
one conducted without a
warrant) and confessions of
guilt determined to be
products of police tricks,
threats, or actual violence,
cannot be used in a trial to
prove the defendant's guilt.
The justice department is
currently seeking Supreme
Court modification of this
requirement.

It should be pointed out,
however, that there is no proof
that even a complete abolition
of the exclusionary rule would
result in a significant increase
in the number of convictions
obtained. It is far-fetched to
assume that such an abolition
would lead to a reduction in
crime, supposedly Mr. Nixon's
primary goal. In addition, the
administration's position
overlooks the fact that the
exclusionary rule is itself a
sanction against illegal conduct
– on the part of the police.
How can there ever be law and
order, one is tempted to ask, if
the police do not even obey
the laws they swear to uphold?

Nixon's general plan, it
seems, is to focus blame on the
courts instead of seeking some
real solutions to the problem
of crime. The President has
found the courts a convenient
scapegoat, and he
all-too-willingly points to them
with an accusing finger.

At best this approach is
simplistic. While it is true that
reforms are needed, the roots
of crime are not buried in the
criminal justice system.
Short-term solutions lie in
areas such as drug policy, gun
control, and improvement of
police techniques. Longer-term
solutions, of course, can only
be achieved through broad
social reforms.

At worst, though, the
President's approach is
dangerous and self-defeating
Nixon's message is not
overlooked by a large number
of people who are also eager to
find a scapegoat. The
preservation of a free and
lawful society, however,
requires that the average
citizen respect the courts and
the system of justice.

People will agree to live
under the law only if they
believe that it is functioning
fairly and effectively. Far from
encouraging such a belief,
however, President Nixon is
actively promoting contempt
and scorn of judges and of the
criminal court system. If such
attitudes come to be accepted
by the majority of the nation's
citizens, the result may be the
destruction of both order and
freedom.