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ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU OPINION * OPINION * OPINION * OPINION * OPINION * OPINION JUST SOLUTIONS 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 pass." 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 violence? 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 easily." 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 civil liberties. 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. ============================================================= ACLU Free Reading Room | A publications and information resource of the gopher:// | American Civil Liberties Union National Office | | "Eternal vigilance is the price of liberty"


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