Public Safety and Private Rights

"If we get the tools from Congress," Richard Nixon promised the country just one month ago, "we will use them and we will reduce this rate of crime." The President was addressing himself to a major national concern, but not one of the Administration's 20 major anticrime bills has yet become law. The main reason: bipartisan fear that many of their provisions would jeopardize the rights of the innocent without really giving much practical aid to the forces of law and order.

Last week a House-Senate conference committee agreed on a crime bill for the District of Columbia with its most controversial provisions intact, and the House promptly passed it. Just as promptly, the Senate reopened a vigorous debate. One of the most vociferous opponents is a Democrat who is frequently sympathetic to Administration causes. But North Carolina's Sam J. Ervin Jr. has long been convinced that much of the measure is "as full of unconstitutional, unjust and unwise provisions as a mangy hound dog is full of fleas." Meanwhile the governing board of the American Bar Association, after a special meeting in Chicago, expressed reservations about parts of a separate bill aimed at subduing the organized underworld. Originally devised by another Democrat, Arkansas's John McClellan, the mobster measure was expanded with the help of Justice Department staffers and whisked through the Senate in January. Legal experts have now detected a startling number of sleeper clauses. Their objections have provoked close scrutiny from the House Judiciary Committee.

No-Knock. The D.C. crime bill puts heavy emphasis on strengthening police power to gather evidence. The Fourth Amendment guarantees a person's right to be "secure" against "unreasonable searches and seizures." But what is reasonable? The measure would expand police authority to use bugs and wiretaps against suspected drug pushers, violence-prone radicals, bribers and blackmailers. Critics insist the measure's inclusive language might permit scrutiny of the traditionally privileged conversations between lawyers and clients, doctors and patients, or priests and penitents. Under another provision, policemen could enter private homes without knocking if they had reason to believe that a warning would allow suspects to destroy evidence or prepare for a shootout.

The most violent opposition to the D.C. bill stems from its acceptance of preventive detention--a procedure that another Administration bill would apply to all federal courts. Some alleged offenders released on bail are rearrested for fresh crimes during long waits for trial in the clogged D.C. courts; preventive detention would permit judges to hold potentially dangerous suspects for up to 60 days. The effort to check recidivist crime, critics charge, would surely result in denial of bail to some innocent suspects, and to others who would not commit further crimes. Moreover, detention hearings might jam the courts still further. Repeater crimes could be cut more fairly, the opposition argues, by surveillance of bailed suspects and speedier trials. In fact, some of the bill's best sections take just that approach. Bail supervision would be expanded and $5,000,000 allocated to add 17 trial judges and merge three separate court systems.

McClellan's anti-mobster bill is advertised as an attempt to deal with the frustrations that police and prosecutors meet in dealing with organized racketeers. Recent Supreme Court decisions have knocked down such heavyhanded police practices as raids without search warrants, third-degree interrogations and indiscriminate wiretaps. Even evidence developed as a result of leads from illegal techniques is not admissible in a trial. If a defendant thinks the Government has used forbidden tactics in developing its case against him, he can ask to see all the raw material in order to establish his right to have it thrown out--which occasionally has made prosecutors turn over to mob lawyers years of tap-recorded phone conversations.

The bill would weaken the legal deterrence to unconstitutional police work. A judge could not disclose any illegally obtained material unless the defendant convinced him that the revelation would be "in the interest of justice." Indeed, if the specific crime for which a defendant was being tried took place five years after any general evidence was improperly obtained, leads derived from that evidence could not be challenged at all.

Official Lawlessness. Such a time limit on rights is clearly unconstitutional, argues the Association of the Bar of the City of New York. With the proliferation of electronic data banks, an association report charges, prosecutors would be encouraged to maintain illegal files on suspects and use the leads after a five-year wait had "cleansed" them. Legal authorities claim that the proposed law is not really needed by prosecutors anyway; when they have justification for thinking that crime is going on, they can make most searches and tapes by obtaining warrants first. Says Herman Schwartz, a wiretap-law expert at the State University of New York at Buffalo: "The provision blows a hole in the entire fabric that the Supreme Court has woven to deter official lawlessness."

Though the measure increases the authority of prosecutors to make witnesses talk by granting them immunity from subsequent prosecution, those who remain silent could be given up to three years in jail for contempt, with no trial and with virtually no chance of bail if they appeal. More might be accomplished by another provision of the bill that authorizes money for protecting witnesses too fearful of revenge to testify. Nor is there much controversy over a section authorizing injunctions against entire gangster-run enterprises which could confiscate their property or require them to sell it off.

Bonus Sentences. Both bills propose stiff sentences for offenders. In the District of Columbia, judges would be prohibited from giving less than five years to anyone convicted of a second armed crime. The organized crime act would let federal judges anywhere give up to 30 years to criminals who had two previous felony convictions or whose crime was part of a vague "pattern of criminal conduct." This would permit not only long terms for mobsters convicted of penny-ante crimes, but it would also let judges impose bonus sentences for alleged conduct that was never proved in a trial that also gives judges immense discretional cases not involving organized crime. The New York City bar association contends that a youth who got a suspended sentence on a marijuana conviction and served a few days in jail for unlawful assembly during a demonstration could get a 30-year stretch long afterward for an income tax violation--even if the tax charge normally carried a penalty of only three years.

Some opponents say they would accept many of the Administration's proposals if they were redrawn in such a way that they could not be turned against those whose offenses are trivial--or merely unpopular. Others go further. In a democracy, they say, mobsters have rights too. The most trenchant criticism against both bills is that they tinker with the tools of law enforcement instead of attacking more basic problems: crime-breeding courts and prisons, social inequities and public complacency about vice and corruption.

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