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.

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