July 21, 1970
Page 25187
DISTRICT OF COLUMBIA COURT REFORM AND CRIMINAL PROCEDURE ACT OF 1970
The Senate continued with the consideration of the report of the committee of the conference on the disagreeing votes of the two Houses on the amendment of the Senate to the amendment of the House to the text of the bill (S. 2601) to reorganize the courts of the District of Columbia, and for other purposes.
Mr. MUSKIE. Mr. President, the Attorney General suggested to a congressional committee that "no-knock" had become a misunderstood catchword. He proposed that "no-knock" be renamed "quick entry."
I suppose that we should expect this sanitizing process to continue. Perhaps "wiretapping" should be renamed "acoustics assistance," and "preventive detention" might be more appetizing if we called it "delayed release."
The Attorney General should not try to fool the Congress, and Congress should not fool itself. No one can whitewash the provisions of wiretapping, no-knock, and preventive detention. They are bad no matter what they are called.
Mr. President, considering measures to control criminal activity is a delicate task for a legislature in a free society.
A local newspaper editorially suggested yesterday that this District of Columbia Crime Bill was an "acceptable legislative compromise." I cannot agree with that statement, and I caution my colleagues that the Bill of Rights is not something we should write off for the sake of a legislative compromise.
We are considering fundamental concepts of fairness, security, privacy, and individual rights. Horse trading here is inappropriate. It is as inappropriate for us today as it was for those who first demanded these rights in America.
At the same time, crime in America – street crime as well as organized crime – has not been effectively reduced in recent years. It has, in fact, increased. This is as true of the Nation's Capital as it is of America's other large cities.
In the District of Columbia the Congress has a clear responsibility to act to halt the rise in crime.
At the same time, we can make the District a model for other cities. We can experiment, in a progressive manner, with new policies and programs aimed at restoring a sense of safety and security and freedom to go where one pleases, by day or night.
I think we all recognize that there is no good reason for delay in reporting out meaningful anticrime legislation. That is why I strongly support seven of the nine titles in the Conference Report of the District of Columbia Crime Bill.
The provisions dealing with court reorganization, the District of Columbia Bail Agency, the Public Defender's Office, and the Interstate Compact on Juveniles are important contributions to law enforcement and should be approved by the Senate.
With some modifications, the provisions dealing with nighttime searches, criminal penalties, juvenile court procedures, moot and interlocutory appeals, and the insanity defense should improve the District's system of criminal justice.
These provisions may well serve as models to other communities faced with similar problems.
And so I have cosponsored amendments introduced by Senator ERVIN, and bills introduced by Senator GOODELL (S. 4080 and S. 4081), that embody these provisions of the conference report.
However, I cannot, in good conscience, accept the entire conference report itself.
For the provisions of the conference report dealing with wiretapping, with no-knock searches, and with preventive detention are – in my judgment – unwise and unnecessary infringements on our fundamental ideals of justice and freedom, our time-honored sense of privacy, and our constitutional Bill of Rights.
Because we must vote for or against all of the provisions of the conference report at once, this bill presents a difficult choice. We must ask ourselves whether this is an appropriate area for "legislative compromise" . . . whether we should look beyond "only a few" infringements on rights and liberties in exchange for much that is good.
The balance between what is right and what is wrong with the conference report is not a balance I can accept. It is not a balance that I would expect my constituents in Maine to accept. And it is not a balance which the citizens of the District of Columbia should be forced to accept.
We have a solemn obligation, in the Senate, to help preserve liberty as well as order, to show that we care about people as well as statistics, and to speak out about what we must not do as well as what we must do.
I think it essential that we keep in mind what the real and justifiable needs are in the field of law enforcement.
We must spend the money required to provide better training, higher salaries, and more effective equipment for the police.
We must spend the money required to employ enough judges and supporting court personnel, so that the intolerable delays between arrest and trial – and between trial and appeal – become a thing of the past.
And we must spend the money required to reform, in a fundamental way, our penal institutions –
so many of which have become breeding grounds of misery, and even more serious criminal behavior among the inmate population.
Our preoccupation with and our excessive commitment of resources to the SST, with the ABM, with military success in Indochina must stop – if we are to reverse the growth of crime in America by spending the money needed to do so.
We fool ourselves dangerously if we think we can improve our society and our way of life by endorsing the practice of electronic eavesdropping – by authorizing law enforcement officers to break into homes without warning – or by imprisoning persons in overcrowded jails while they are presumed to be innocent.
These are neither reasonable nor necessary law enforcement tools. They are instruments of fear. They are tools of repression. And they are measures which any free society must reject in no matter what guise they are presented.
WIRETAPPING
The wiretapping provision of the District of Columbia crime bill is unacceptable.
Until 1968, wiretapping was prohibited by Federal law. In that year, Congress authorized a limited exception to this rule directed at sophisticated criminal organizations, whose illegal activities often leave little physical evidence. This was considered necessary to unmask and prosecute organized crime.
The District of Columbia crime bill preserves and expands the exception but forgets the rule – the rule that we should protect and preserve our privacy. The bill authorizes electronic surveillance for arson, burglary, fencing stolen property, destruction of property in excess of $200 and second degree murder. And the bill authorizes it in advance of judicial approval.
I had serious reservations about extending Federal authority in this area in 1968. In fact, I voted for amendments limiting this expansion. I have even greater reservations about the inclusion of broad wiretap and bugging authorization for local authorities now.
I question whether crimes which are individual acts – rarely ones of concerted action or conspiracy – will be solved by electronic eavesdropping.
In many respects, the conference version of this bill is an improvement over the legislation originally passed by the House. Greater limitations have been placed on the scope of authority and on the use of these communications, and penalties are provided for the distribution of interception devices. The Senate also sought to limit the scope of criminal offenses covered, but ultimately were forced to recede.
However, I remain concerned over the potential widespread use of electronic eavesdropping and wiretapping. It is difficult to underestimate the number of people who will be subjected to government surveillance. How may third parties, not involved but merely mentioned in conversations, suppress information which could damage them and their reputations?
For every criminal heard by our official eavesdroppers, dozens of innocent people will have their privacy violated. For every shred of evidence gleaned, dozens of dialogs will be recorded imparting unfounded gossip, confidential communications, or scandalous – though noncriminal – information.
This is too high a price to pay. This is hardly an acceptable legislative compromise.
Under this proposed section, any law enforcement official may wiretap or bug if he unilaterally determines – without prior court approval – that an emergency situation exists with respect to conspiratorial activities characteristic of organized crime and further unilaterally determines that there are grounds upon which he may get court approval ex post facto. If he makes such a totally unsanctioned interception, he has 3 days before he must apply to the court for approval. Only when his application is denied must he terminate the interception. And, in the meantime, how much illegal and private information would he have received?
I have supported measures to give the Federal Government the resources and the tools to root out organized crime and drug traffic; but the principal duty of the District police is to control crime that is so destructive of the quality of life in this city – the muggings and murders, the robberies, rapes, and assaults. This wiretap provision will only drain manpower from those endeavors. I question whether even drug-related crimes on the retail level can be controlled by electronically assisted investigations of drug traffickers, and I hope that the Federal Bureau of Narcotics and Dangerous Drugs is well able to handle wholesalers of drugs.
The constitutionality of the proposed legislation has also been questioned, but one thing is certain. The fourth amendment guarantees the right of the people to be secure in their persons and houses against unreasonable searches. And central to that guarantee, said the Supreme Count in 1886 in Boyd against United States, is "the sanctity of a man's home and the privacies of life."
The Senate has an obligation in advance of judicial scrutiny and even independently of constitutional principles to consider "the sanctity of a man's home and the privacies of life" for the people of the District. We cannot ignore that responsibility by passing legislation with the thought that it may not matter because it may not be constitutional.
It is our duty to stake out an area where the privacy of the people is inviolate – areas where the individual is not inhibited by fear of the state's intrusion. That line must be drawn here.
THE NO-KNOCK ISSUE
I am perplexed and disturbed by the conference version concerning no-knock powers being presented to the Senate for approval. We are not presented with a narrow, sharply defined proposal. Instead, we are asked to enact into law a provision which one high Justice official has stated to be indispensable if law enforcement officers in the District of Columbia are to do their job properly, and which another high Justice Department official has declared does no more than codify existing law in this area. If our U.S. attorney and our Attorney General do not – appear to – agree on the nature of the proposal, we in the Senate have an added responsibility to know what we are doing.
I read this provision as allowing police to burst into private homes, day or night, so long as a single policeman thinks he has probable cause to believe that evidence is likely to be destroyed.
Those who favor the conference report on the no-knock issue believe that it represents a proper balance between individual rights and the needs of law enforcement. They argue that the conference report does not really grant to the police additional powers to conduct "no-knock" searches. They argue that police officers have had such authority since common law times. They argue that they are merely continuing the existing authority and adding to it reasonable safeguards.
If that were all, I would be tempted to support the provision. But it is not all. Balancing the security of an individual's home against the security of society in general is not easy, but I must disagree with the supporters of this provision for the following reasons:
First. The trend of the law for decades has been to encourage the police to get prior judicial approval for search warrants. The import of this proposal, as it relates to no-knock, is to the contrary. Under certain conditions the bill expressly sanctions no-knock procedures without prior application for a warrant.
Second. The language of the bill is unclear with respect to the degree of probability that must be shown that evidence will be destroyed if a no-knock search is not made. The Senate conferees maintain that they reluctantly agreed to language implying only likelihood that evidence will be destroyed if a no-knock search is not made. They agreed to this language, they say, only on the clear understanding that it must be measured against the language of the Supreme Court in Ker v. California, 374 U.S. 23 (1963). This language and the expressed doubts of our conferees lead me to the conclusion that the provision is a retreat from our traditional notions of probable cause, leaving an officer in a position to conduct a no-knock search with little factual justification for the breaking and entering without notice.
Third. The use of the word "likelihood" raises in my mind a serious constitutional question. The fourth amendment to the Constitution states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
I do not think that the standard for a no-knock entry comports with the right of the people to be free from unreasonable searches. I cannot in good conscience support this provision. It is too casual a grant of power and it increases the danger to police officers who are thus encouraged to make "no-knock" entries into homes. It is too high a price to pay for an "acceptable legislative compromise."
My misgivings about the merits of this proposal are compounded by the recognition that effective law enforcement requires the full cooperation of the community. In cities like Washington and in our suburban communities, our society is becoming increasingly crowded. People are living closer together; our privacy is a value which we must carefully guard.
Our responsibility in writing our laws should be to find ways to give people more privacy and security from intrusion, not less. Overcrowding and unsatisfactory conditions alone create tension. Such tension should not be enlarged by a provision in the law which undermines the security of one's home and threatens privacy while increasing the potential for intrusion.
The no-knock proposal has become a symbol of insecurity, endangered privacy and repression in this city. When the language of a proposal which intrudes upon the sanctity of an individual's privacy is unclear and when it has the potential for intensifying hostilities between the police and those whom the police seek to protect, we should subject it to searching examination.
The examination leads me to conclude that we should furnish better police protection to our city and develop mutual confidence between our police and our citizens, rather than raise the specter of a police officer breaking into an apartment or a house without notice on the basis of personal conjecture.
PREVENTIVE DETENTION
Crimes committed by persons on court ordered release or bail are a major impediment to effective law enforcement. The money bail system as it exists in this country does not now make sense and has never made sense. Under the leadership of Senator ERVIN, we have made progress, but our progress has been too slow. We have not devoted sufficient resources to the bail agencies, and we have not given bail reform a chance to work in the District because of the congested court calendar.
Court reorganization to promote speedy trials is indispensable and should reduce crime committed by those on bail. The District court system must be overhauled, and an adequate number of judges and court personnel must be assured. Those accused should be brought to trial within 60 or even 30 days.
With these needs in mind, I have examined the conference report provision for preventive detention, and I have considered the arguments made by those who support that provision. The supporters are satisfied that enactment of the conference report would constitute a major reform of existing bail practices and would result in a lower percentage of persons detained prior to trial. They argue that this will occur because the test will be the narrow question of "dangerousness" rather than the unavailability of adequate release conditions.
They also argue that this provision imposes procedural safeguards which now do not exist; that constitutional rights are preserved by using detention only for defendants who pose an appreciable danger to society; and that the provision assures procedural due process through a hearing of record.
I cannot accept these arguments. I am bothered by the fact that the proposal reflects a concept which runs counter to the presumption of innocence until guilt is proven beyond a reasonable doubt. Some may feel that there is nothing about the preventive detention provision which establishes guilt. But there is certainly a substantial restraint of liberty in the absence of proven guilt. This provision attempts to make society safer by removing from its midst those of alleged dangerous proclivities while they await trial. It assumes intolerable delays between arrest and trial, yet it further clutters the count calendar. In fact, this provision further congests the criminal calendar and will likely result in even longer delays between arrest and trial. These are practical considerations which the supporters have not answered.
In addition, there are problems of constitutional dimensions which concern me. The eighth amendment declares: Excessive bail shall not be required. There is some disagreement among constitutional experts as to the meaning of the eighth amendment. I do suggest, however, that the eighth amendment dictates a constitutional right to pretrial release limited only by conditions that may be reasonably imposed to assure that the trial of the accused will occur. I have always understood that denial of bail in capital cases is permitted in search of that assurance. Where a defendant is threatened with loss of life or life imprisonment, he would be more likely to flee than the one who knows that the most he may suffer is temporary imprisonment.
Preventive detention may also violate the due process clause of the fifth amendment, since the individual is deprived of his liberty on the mere possibility that he will be dangerous if released on bail, and the mere probability that he is guilty of the crime for which he has been charged.
We could all argue statistics about what percentage of persons are arrested while on bail for the same crime or for a crime of another category. The percentage is small. But how do we predict accurately which defendants are apt to be "dangerous" and which are not? We are gambling with a correctional system and detention facilities which are hardly models of training and rehabilitation. This provision would send to jail people who have not been convicted, people who may be guilty of nothing, and people who may have never committed a single crime. People would be sent to jails that do not have room for them, jails that may corrupt them, and jails to which convicted criminals with suspended sentences may not be sent at all. The District of Columbia prisons have been a conspicuous weakness in our law enforcement system. They are overflowing, they are archaic, they are infested with drugs, and most of their inmates go back to the streets trained only in the newer techniques of crime.
This is too high a price to pay for an "acceptable legislative compromise."
I am concerned with constitutionality, with our inability to predict behavior with certitude, and with the potential harm to innocent people of preventive detention.
There are ways, if we will, to shorten the time between arrest and trial and to supervise the accused who may be dangerous – the goals of preventive detention. Many of these alternatives are included in other titles of this legislation which I support and do not involve the potential abuses of individual rights that mark preventive detention. These are the alternatives I prefer. I doubt the effectiveness of preventive detention; I question its constitutionality; and I am apprehensive over its impact.
The tragedy of the District of Columbia crime bill is that it represents, in part, bad bargains forced on the people of the District by quick answers and easy solutions which threaten our freedoms as well as theirs.
There are no quick answers and easy solutions. Yet the District of Columbia crime bill perpetuates the notion that crime fighting is principally a matter of stiffer penalties, greater government authority, and fewer freedoms. Such measures may have a slight effect on the crime rate but they cannot make up for courts that fall years behind, for prisoners that turn out criminals, for probation and parole services that have neither the money nor the personnel to supervise, and for police forces that are ill paid and overworked.
The Senate acts not only for the people of the District, but also for all Americans. The law we write for the District should be a model for all the 50 States. Instead, the provisions of this conference report make the people of the District subjects for an experiment in repression. It is far from certain that these provisions would reduce crime in the District; but it is certain that all the people of the District will find their privacy endangered, the security of their homes threatened, and just treatment before the law jeopardized.
The security and the privacy of our constituents are also at stake as we write laws for the District.
This is not merely a set of local ordinances we now consider. This is an act of Congress, and it carries that weight. If we pass ill-considered legislation for this jurisdiction, it will reverberate throughout the Nation. On the other hand, if we reject the conference report and pass constructive legislation, the Senate can offer effective leadership against crime for all Americans.
I cannot support enactment of the provisions to which I have referred. This has led to my decision to cosponsor the Ervin amendments and the Goodell bills and to vote to reject this conference report. The District of Columbia does need legislative assistance to reduce crime.
There is a good deal of vital help in this bill. However, this conference report does not offer us an acceptable choice. We are forced to accept all or nothing.
I believe that the Senate can do better. We can reject the conference report and pass better legislation to provide effective law enforcement for the District.