II c o m m e n t . . . .

II

Crime, Law 8.5'Order as Election Issues

Today our legal institutions and organizations are embroiled in controversy. The police and the U.S. Supreme Court are page one news. Within the past four years, the President has generated four national commissions to deal with the growing concern with crime, law, and the public peace: those on law enforcement and the administration of justice, on civil disorders, on obscenity, and--most recently--on violence. At issue are an F.B.I.-documented rising crime rate, and the question of safe streets--symbolized by the Omnibus Crime Control and Safe Streets Act of 1968. At issue also is civil disorder in urban ghettos and on college can> puses, with outraged cries from many people for "law and order." And at issue are civil rights and justice, which have provoked public demands to purge the Supreme Court, to block further appointments to it until a new President is in office, and to stop "coddling criminals." Of necessity, our political parties have held lengthy platform hearings and adopted planks on crime--the opinion polls and the politicians' constituents tell them that crime is the Number One political issue of 1968. One must agree with John Finney's analysis of these planks in the September I N e u Yor/e Times: "On the law and order issue, it almost seems that the same person drafted the Republican and Democratic planks, so similar are the words and thoughts." But the candidates do more than run on platforms. Each has developed his own stand. What follows is about them and their political posture on the crime issue. Inevitably, political issues are captured by phrases and slogans. As of this writing, it appears that Richard M. Nixon's position is to be "Freedom From Fear," while Humphrey's is "Order 2

and Justice" or--more volubly, in the Humphrey manner--the "relentless pursuit" of the "inseparable agenda" of "Civil Order and Civil Justice." Candidate Wallace's speeches are not immediately available to me, though there seems little doubt that he stands for law and order insofar as they are consistent with God, Mother, and a return to local government and states' rights. Nixon rendered his position as early as May 8 in a little blue pamphlet entitled "Toward Freedom From Fear." Printed in blue type on white paper, the color alone should be reassuring. Humphrey's position emerged more gradually, in speeches. Not until August 25 did he release a position paper, "Order and Justice: The Right to Life." In keeping with the jargon of the Johnson administration's commissions, one is promised "a more comprehensie report by the Vice President's Task Force on Order and Justice" in the near future. The near future has not arrived as I write on September 11, two months from E-day. Crime Marches On

There is little that divides the candidates in their concern over the rising tide of crime, although Nixon takes more time to document it than does Humphrey. Indeed, Nixon opens his position paper by noting: "In the last seven years while the population of this country was rising some ten per cent, crime in the United States rose a staggering 88 per cent. If the present rate of new crime continues, the number of rapes and robberies and assaults and thefts in the United States today will double--by the end of 1972." He soberly continues: "That is a prospect America cannot accept. If we allow it to happen, then the city jungle will cease to be a metaphor. It will become

a barbaric reality, and the brutal society that now flourishes in the core cities of America will annex the affluent suburbs. This nation will then be what it is fast becoming--an armed camp of two hundred million Americans living in fear." Apart from the waspish and racist overtones of this assessment-more masterly handled by indirection in the speeches of George Wallace--it is clear that Nixon opts to emphasize crime and its control more than civil justice, while Humphrey, as we shall see, focuses more on the need for civil justice. There are those among the liberals and sophisticated in both parties who will cast doubt upon whether America really has a rising crime rate. They will point knowingly to what we have learned about the "dark figure" of crime--that there are far more crimes than are reported in the official statistics of the police. They argue that any rise in crime may be more apparent than real, merely representing a dipping into the dark figure of unreported crime. But a moment's reflection should remind them that however important their argument is scientifically, it lacks the same cogency politically. This is so for several reasons. Suppose that one persuaded the American people that there was no rise in the crime rate--by persuading them that the true crime rate in the United States is at least twice as high as that reported in the F.B.I. Uniform Crime Reports. Does anyone believe that Nixon's argument about "freedom from fear" would strike a less responsive chord? Furthermore, assuming that there may be twice as many crimes each day as become known to the police, is the experience any less real to the victims of crime who, after all, vote? And finally, isn't it abundantly clear that many people are afraid to be about in public places because of their actual and perceived experiences with crime (as the polls conducted for the National Crime Commission so clearly show)? Candidates as well as social scientists are well aware that what people believe to be real is generally real in its consequences. The affluence of America has itself increased the opportunities for crime, particularly for crimes against property. The extension of insurance coverage through home owners' and other policies increases the carelessness of citizens by reducing their risks. To a surprising degree then our successes rather than our failures give both a false sense of crime and a sense of increase in crime. TRANS-ACT1ON

Retributive & Distributive Justice Nothing in their stances on the crime issue divides the candidates so sharply as their programs for justice. Nixon stands foursquare for "Justice for the Guilty, Too," a justice of retribution; Humphrey stands for civil justice, whether a Marshall Plan for the cities or in his Agenda for Social Justice. Humphrey's is basically a program of distributive justice, emphasizing "equal opportunity" and "equal rights," albeit very little different from that of the Johnson administration's task forces. Nixon's concern for retributive justice runs deep, as does his seeming lack of concern for distributive justice. Despite some indications in his acceptance speech to the contrary, his position paper makes this quite clear. He begins by sharply disputing claims that a war on poverty is a war on crime, an argument that--while not without some merit--is hardly presented on the basis of merit. For he does not bother to say that, whatever their merits in reducing crime, programs of income redistribution are worthwhile as a strategy of social justice. But the nitty-gritty of Nixon's posithin lies in these words: "Just as iustice dictates that innocent men go free, it also means that guilty men must pay the penalty for their crimes. It is that second part of justice to which the nation must begin to address itself in earnest." And again, perhaps more in hope of provoking fear than in freeing men from it, he argues: "There is another attitude that must be discarded if we are to wage an effective national war against the enemy within. That attitude is the socially suicidal tendency--on the part of many public men--to excuse crime and sympathize with criminals because of past grievances the criminal may have against society. By now Americans, I believe, have learned the hard way that a society that is lenient and permissive for criminals is a society that is neither safe nor secure for innocent men and women."

Despite his strong words on behalf of retributive justice, it remains unclear whether Nixon really means what he says about punishing criminals. His program for prison reform, while not new, is hardly altogether punitive. Nixon would punish criminals, to be sure, by sending more of them to prison, but he would turn prisons into places where "convicted felons were properly trained and equipped for reassimilation by the outside world." What is more, he believes that to reform our prisons we need to provide more teachers, parole O(ITOBER 1968

officers, psychiatrists, social workers, and dollars. Actually Nixon's most stinging crib icism is reserved for the real villains of the piece--the Attorney General of the United States and the courts, primarily the Supreme Court and the lesser appellate courts. He would not only punish criminals, I suppose, but purge and pack the courts as well. In his acceptance speech Nixon announced that when elected he will appoint a new Attorney General. There would hardly be anything odd about that statement since new Presidents ordinarily do just that, while leaving undisturbed the incumbent director of the F.B.I. Party makes little difference in such choices. But Nixon means more than that. He holds the incumbent Attorney General, Ramsey Clark, responsible for failing to protect us from organized crime and f~r failing to support necessary legislation--particularly limited wiretapping and electronic surveillance--to correct what he regards as an imbalance in faw~r of crime that has been created by the Supreme Court's decisions. It is in his discussion of the Attorney General's failure to vigorously prosecute organized crime that Nixon makes some of his most telling statements. Indeed, in his concern for Clark's failures he goes so far as to laud Nicholas Katzenbach's characterization of organized crime as "nothing less than a guerrilla war against society." Whether or not one agrees with Nixon's views on wiretapping and electronic surveillance, he points a telling finger at Clark, whether for Clark's statement that apparently dismisses organized crime as but a "tiny part" of the crime picture, or--more important--in the seeming unwillingness of the Democratic Party to take organized crime seriously. If Nixon chooses to pursue the issue, he might very well have Humphrey and the Democratic Party office-holders between the rock and the hard spot. For Humphrey has only belatedly spoken out on the issue, and then he seemingly acknowledged the less-than-vigorous program of the Justice Department by calling for an increase in the personnel of the Department of Justice's Organized Crime and Racketeering Section, and an expansion of "the successful 'strike force' concept, recently adopted by this Administration." Like Nixon he would war on drugs, and while he would distinguish between "those unfortunate people who are the victims of drug addiction and those criminals who would exploit drug addiction for their own

profit," in his section on organized crime he would make war particularly on "the dope peddler who sells his merchandise to the young." Hardly a war on organized crime, I should say. Little, perhaps, needs to be said about Nixon's antipathy toward the Supreme Court. He singles out Aliranda and Escohedo for harsh words, for they play into the hands of organized crime and ordinary criminals, he says. He dislikes Wade and Gilbert because of their restrictinns on the identifications that witnesses may make, and he appears to mistakenly charge the court with the Beasley decision as well. Be that as it may, in his summary his position is unmistakable: "These decisions by a majority of one of the Supreme Court have bad a far-reading impact in this country. . . . I think they point up a genuine need--a need for future Presidents to include in their appointments to the United States Supreme Court men who are thoroughly experienced and versed in the criminal laws of the land." He makes no suggestion that they be versed in civil liberties and civil rights as well. Not so Humphrey. His National Press Club and acceptance speeches make clear that he defends a society by the rule of law and due process, in the full sense of the 14th Amendment. The National Press Club speech sums it up: "Yes, crime and violence have to be stopped. But I disagree with those who sneer at the Constitutional guarantees, and propose shortcuts to justice across the quicksand of contempt for due process of law." Here, at least, the issue is joined, and the lines between the candidates are drawn. Humphrey & Social Justice A word about Humphrey and civil and social justice. He has reviewed his life history in defense of civil liberties and civil rights, and his relentless pursuit ~f social justice, pointing to his voting record in the Senate. But his program of social justice--or "agenda," as he would call it----is less a program than a statement of commitment. He does come out for the recommendations of the President's Commission on Civil Disorders. He does assert there are "civil rights," in the broad sense of every citizen's having "a right" to enough to eat, to earn a living, and to a full education. . . . Perhaps that is enough to convince the mass of the electorate. But the skeptical may ask, by what means are such lofty ends to be assured? Like Nixon, Humphrey assures us that there 3

must be vigorous programs to transform our cities and to eliminate poverty through a proper mix of free enterprise and government action at federal, state, and local levels9 He also assures one and all that "every individual must play a meaningful role in his commun i t y - h a v e a stake in what is going on be 'part of the action.'" But how and where is the action? How and where is one to involve the masses by bringing them closer to the center? And how and where is one to involve them to "establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our p o s t e r i t y . . . " ? 9

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Order or Domestic Tranquility? Nixon's position paper is strangely silent on the subject of civil disorders, although he does call for public order. Humphrey has an Agenda for Civil Order, and he vows to stop riots. Humphrey's National Press Club speech emphasizes: "Our generating idea as a nation was to secure the Right--the unalienable right--of Life-along with Liberty and the pursuit of Happiness. But this means two things. It means protecting Life--the breath of Life itself. It means equally, the fulfilhnent of Life--giving it meaning . . . value . . . validity." It is unfortunate that Humphrey and his writers did not read further in the Declaration of Independence, from which these noble sentiments are drawn. For the words that follow express equally noble sentiments: "That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness." Why must we have a National Commission on Violence rather than a National Commission for Civility? Why must law and order be our rallying point rather than ensuring domestic tranquility, which implies alleviating grievances? In all fairness to Humphrey, I must say this: His is an agenda for civil order and social justice, and he maintains that both must be pursued relentlessly. He is for legitimate protest and peaceful assembly. What is troubling is not that, but his program for civil order. 4

When Humphrey speaks of civil order, be speaks primarily of two things: (1) how to stop riots by the quick and effective use of the local and state police, the National Guard, and the regular army, and (2) how to get more and better police. He prefers arrests and tear gas to violence, curfews to riots. All this is the agenda for riot control, vintage 1968. As President he would do two new things: establish "Councils of Civil Peace in our states and cities to find new ways to prevent riots and similar violence, to air grievances peacefully, and to help alleviate conditions that contribute to rioting, and to coordinate all State and local law enforcement agencies and personnel when and if riots occur." And as President, "I will direct that units of the National Guard in each state be given additional training in riot control, teamwork, and planning. . . . " The proposed Councils for Civil Peace remind one of human-relations commissions that engage more in public relations than in changing conditions. They woukt alleviate and not cure; they would "coordinate riot control" as well as "seek ways to prevent riots." Should they also seek ways, one might ask, to promote civility in the civil society? Should they promote the peace and seek ways to bring about domestic tranquility in which order /ollow.r rather than leads? Law and order . . . or civility and tranquility? Even more disconcerting is Hun> phrey's program for the police and the courts. His is not a program that would address itself to The Algiers Motel Incident (nor, for that matter, would Nixon's program for the police). Humphrey's is a program for more policemen, more money for the police, more training for them, and more technical equipment for them, with more financial support to local law-enforcement agencies. These remarks occupy much of two pages of recommendations. There follow a few sentences endorsing federal assistance to local law-enforcement agencies to "develop programs to promote community relations, to create family-counseling services, to stimulate participation of civilians in aiding law enforcement officers and in dealing with community problems." What else is new? Nowhere, nowhere, is there any acknowledgment that a substantial minority of our citizens want something more from law enforcement in this country. The same is true of Humphrey's program for the courts. He wants more

training for court personnel; better management techniques and a computer technology for the administration of the courts; leadership in reducing the number of people who could be processed by means other than the courts; antt conferences with judges, bar associations, and other groups striving to improve our criminal-justice system. More for the professionals, more management, and more money. But is that what people are seeking when they cry out against the injustices of our legat system? Perhaps American politicans must continue to be less than forthright. In the cloakroom we may acknowledge that the police are not all that we should like, that perhaps "copping a plea" is a means to injustice, and so on. But publicly we cannot debate the issue of what we want from our police, our prosecutors, our jurists. Can it be that the Establishment has less of a program for ensuring domestic tranquility than a program for making people be orderly? Can it be that the New Day is too much like the Old Day? Can it be that the politics of "freedom from fear" on the one hand, and the politics of Hope and Happiness on the other, are simply not enough? The concluding statements of both candidates are of interest. Nixon states: "If the American people are willing to commit themselves to pay the necessary price to restore peace to the society, it can be done. If they are willing to commit themselves to the proposition that any man who disobeys the law pays the penalty the law exacts, then we can begin to turn this crime wave back." Humphrey would commit us also: "We must commit ourselves to

make life worth living jot every AmerL can. Equal protection for all against crime must be a policy not of repression but of liberation; a policy not in reaction to fear but in affirmation of hope." This is the year of choices. If I must endorse sentiments, I find little difficulty in choosing where my values lie. But if Hope I must, I Hope for a more forthright statement of issues, and programs that ensure a New Day rather than preserve the Old Day. Humphrey promises more to come. May these programs be the politics of domestic and international peace, of liberty, of justice, and of promoting the welfare of all people.

Albert ]. Reiss, chairman Center for Research on Social Organization Univers#y of Michigan TRANS-ACTION