The Queen said: “Here is the King’s messenger. He is in prison now being punished and the trial does not even begin until next Wednesday, and of course the crime comes last of all.”
“But suppose he never commits the crime?” asked Alice.
“That would be all the better, wouldn’t it?” the Queen responded.
—Lewis Carroll, Alice in Wonderland
Today, after years of slow and complicated litigation, our Constitution and our judiciary have established fairly effective checks against the enactment of repressive laws. But enactment of a law is only the first step in the process which can land a citizen in prison. The power to use the criminal process to punish advocates of unpopular ideas is not the lawmakers’ power alone. Throughout the country, on the federal as well as the state level, thousands of individuals wield wide discretion in deciding which laws to enforce against which individuals, which citizens’ lives to scrutinize for evidence of criminality, whom to question, whom to indict and on what charge, what evidence to present, what sentence to impose, whether or not to grant parole, and on what conditions parole will be granted.
It is a matter of some pride to most Americans that we are governed by a “system of laws, not men.” But there is more play in the joints of our system, more opportunities for officials to make decisions wholly within their discretion, than in most European systems. The fabric of our criminal process is tailored by the discretion of the men who run it. Those men are politicians, their appointees, and governmental employees who share and respond to the accepted values and political prejudices of the day.
All those charged with enforcing the criminal law wield discretionary power, within a loosely woven system of rules, to punish whomever they choose. Ideally, their decisions should be made without regard to the legitimate political activity of the persons who become enmeshed in the criminal process. However, at any point in the step by step process, a citizen’s political opinions can, and all too often do, make the difference against him. Any one of the key actors in the process may make a conscious or unconscious decision against a person, influenced by that person’s political opinions and expression.
The First Amendment protects Americans against laws prohibiting opposition to the war in Vietnam, yet opponents of the war have been punished for making their views known. There is no law against adopting a life-style or appearance that expresses a rejection of orthodox customs and habits, yet anyone challenging authority in this indirect way risks criminal sanctions. Black Americans are guaranteed the right to advocate Black Power, black pride, and community control of police and schools, yet such advocacy has been punished, and punished severely. This discretionary repression is of low visibility, but it cuts as effectively into the heart of our political system as repressive laws do.
There is so much stretch in the fabric of the American criminal process that we are in serious danger of having the First Amendment nullified by public officials (including highly placed officials of the Nixon Administration) bent on accomplishing indirectly what the First Amendment forbids doing directly. In the spring of 1971, Richard Kleindienst, then Nixon’s Deputy Attorney General and later the Attorney General of the United States, was asked whether officials of the administration would ever consider suspending constitutional provisions protecting political freedom, if dissension seemed to them to be getting out of hand. Kleindienst’s reassurances were disconcerting:
In the first place, we wouldn’t have to, because our existing laws—together with our surveillance and intelligence apparatus, which is the best in the world—are sufficient to cope with any situation. And in the second place we wouldn’t be allowed to. There is enough play at the joints of our existing criminal law—enough flexibility—so that if we really felt that we had to pick up the leaders of a violent uprising we could. We would find some things to charge them with, and we would be able to hold them that way for a while.1
We all want the federal government to respond effectively to real threats of insurrection, but our own history teaches us that those with political power tend to find such threats behind every vigorous movement for political change. Our plan of government demands that when citizens are imprisoned, they be tried for offenses specifically prohibited by law, unless things have gotten so out of hand that the courts can no longer perform that function. The Supreme Court so ruled, when it reviewed the excesses that followed Lincoln’s suspension of habeas corpus even in those sections of the Union where the criminal process was unaffected by the Civil War.2
Attorney General Kleindienst’s expansive view of his power is nevertheless widely shared. From the nation’s top prosecutor to the policeman on his beat, America’s law enforcement community feels justified in using discretionary powers, whether given to them inadvertently or for some particular purpose, for purposes of their own choosing. Too often the purpose is to repress dissent and too often the abuse does not even come to light. But when the authorities in Columbia, South Carolina, stretched the law to repress the antiwar movement, the abuses were visible, all along the line.
Congress would not be likely to pass a law prohibiting the operation of antiwar coffeehouses. Such a law would be so clearly unconstitutional that even those who wanted to see the “coffeehouse crowd” punished would shy away from supporting the measure. If it passed, it would soon be struck down by the courts. But on April 28, 1970, a judge in Columbia, South Carolina, punished three coffeehouse operators for their political intransigence by sentencing them each to six years in the state penitentiary. Herein is presented an interesting story of justice gone awry because of abuse of discretion by a community’s most respected officials.
Early in 1968, antiwar activists transformed a seedy poolhall across from the city hall on Columbia’s Main Street into the UFO Coffeehouse where antiwar soldiers and students could meet. Their mere presence was an affront to the local Establishment. Columbia is the state capital, proud of its past designations as an “all-American City,” and it is wedded in interest to the huge army base at nearby Fort Jackson. The UFO, in business to spread opposition to American foreign policy and to the part played in it by the army, provoked a repressive reaction from the Establishment of the city.
The Chief of Detectives of Columbia’s police department told reporters that he believed the UFO to be a communist front, and made it clear that the police shared the larger community’s distaste for the politics, appearance, and interracial mingling of the UFO’s staff and patrons. Even though the Constitution protected such conduct, the police, as guardians of community values, felt duty bound to shut the coffeehouse down.
When the city attorney told them that an ordinance banning the UFO simply “wouldn’t hold water,” the police were thrown back on their own resources. For two years, the UFO, its staff, and its patrons were subjected to relentless surveillance by uniformed patrolmen, plainclothes detectives, and the undercover agents of city, county, state, and military law-enforcement agencies. Unable to punish the UFO crowd for their real offense of dissent, they sought some other basis for a crackdown and administered a subtle form of punishment by harassment on a continuing basis. Sometimes the UFO’s patrons were subjected to arbitrary and humiliating searches by officers determined to find evidence of crime. One plainclothes detective made over three hundred visits to the coffeehouse, and at least one patrolman made three or four stops at the UFO every night he was assigned to the beat. The police chief, explaining his discretionary allocation of manpower, told a reporter, “We check them every night to see if we can get something on them.”
Despite the harassment, the UFO was packed regularly, and an antiwar movement was spawned on its premises. The surveillance and the searches failed to turn up evidence of a crime for which the UFO’s operators could be punished. One GI who worked as an informer for the army and for the local sheriff was given ten dollars to purchase drugs at the coffeehouse. He later testified that although he made three to five visits each week for several months, he still had the money and had been unable to find evidence of drug traffic. The staff rigorously barred from the premises anyone they even suspected of using or dealing in any form of drugs, including alcohol.
Columbia’s patience ran out in January 1970. The city prosecutor found a way to proceed against the UFO by digging in parts of the city where drug abuse was spreading, while the police concentrated on the coffeehouse. By offering them promises of immunity from prosecution for their own offenses, the prosecutor had little difficulty in rounding up confessed and convicted drug pushers to testify against the UFO. He agreed to let eleven notorious drug pushers go without punishment, and was thus able to get four of them to say, on the witness stand, that they had sold drugs at the UFO. Testimony rewarded by immunity is always questionable, and in this case the informers had an additional reason to oblige the prosecutor—each had been thrown out of the UFO at least once because the staff suspected they were there to sell dope. One of them held the staff responsible for his own arrest on a narcotics charge. However unreliable this testimony was, the prosecutor decided to use it. But he still had a problem: there was no testimony that members of the UFO staff had been party to drug transactions.
To match his evidence to his target, the prosecutor resurrected an ancient and seldom used catchall crime buried in the state’s common law, “keeping and maintaining a public nuisance.” The Richland County Grand Jury, as anxious as he was to find some way to punish the dissenters and to shut the place down, quickly obliged him with an indictment. The rambling indictment charged that the UFO operators kept a “common, disorderly, ill-governed place” where “rowdy persons, persons of evil name, fame and conversation, men as well as women, . . . come together,” and where “persons did possess, sell, or use marijuana” and where were displayed, “pictures, paintings, magazines, newspapers, pamphlets, and posters which were obscene.” The day after the indictment was handed down, the UFO staff was arrested. Two days later the coffeehouse was closed and padlocked by police, acting under a court order.
Judge E. Harry Agnew, who was presiding in Richland County’s General Sessions Court when the UFO case came to trial on April 15, shared the desire of the police, the prosecutor, and the grand jurors to see the UFO staff pay for their dissent. He immediately used his discretion to punish them by requiring each to post bail of $7500, although a murder suspect in the same court had recently been released on $3000 bail.
Judge Agnew refused to admit evidence showing the prosecutor’s bad faith and unconstitutional purpose in selecting the UFO for prosecution while bars, poolhalls, and brothels remained open. He rejected evidence of the widespread drug abuse and drug peddling in other parts of Columbia. He let the prosecutor create the impression that this was a routine nuisance prosecution, although only ten nuisance charges had been brought to trial in the county in the eighty years before the UFO case.
The prosecutor’s evidence of “obscene” periodicals and pictures consisted of a copy of the Berkeley Barb, seized from the UFO by an undercover agent, and a poster taken from the coffeehouse window, showing four soldiers squatting in front of two beheaded bodies and bearing the slogan “The Army Can Really Fuck Over Your Mind.” Judge Agnew refused to let the defendants introduce copies of Gent, Sex Orgies, and Climax which were displayed and openly purchased at the Capital News Stand. They would have shown the UFO’s poster and the Berkeley Barb to be quite tame by community standards of what should be prosecuted.
After ruling irrelevant the evidence that the prosecutor had improperly singled out the UFO for prosecution, the judge then instructed the jurors in terms which left the defendants fully exposed to the community’s political prejudice. They should convict, he told them, if they believed the UFO to be a “noisome and offensive” place, or “a public outrage against common decency or common morality.”
The jury seized upon this as an unlimited license to punish antiwar activists, and quickly returned a guilty verdict. Judge Agnew announced that, because nuisance was a common-law offense and no sentence was set by statute, the punishment was discretionary. He condemned each defendant to six years in prison, and fined the UFO $10,000.
From 1890 to 1969, only one of the ten “maintaining a nuisance” cases brought to trial by the authorities of Richland County, South Carolina, resulted in a prison term. In that solitary case, an individual with extensive underworld connections and boasting a local and multistate arrest record received an eighteen-month sentence for operating a house of prostitution. Even if the UFO operators had been guilty of a crime which could have been defined, a six-year sentence for a misdemeanor is a shocking abuse of judicial discretion.
In his remarks at sentencing, Judge Agnew momentarily dropped the facade of the “nuisance” charge and revealed that he had not based the exercise of his sentencing discretion on evidence, but on what he believed to be the evil intent and bad tendency of the UFO’s political conduct, conduct theoretically “protected” by the First Amendment:
Certainly they have a right to their own thoughts, their own beliefs, but... I think they had in mind a more destructive influence rather than constructive.
As I understand it, two of the defendants come from great distances to this community . . . I don’t know that there is anything that will change the thinking of the small number of individuals who feel that they have a right to be critical and demanding of the other ninety-five per cent of the people who have to work for a living.
Agnew was not content with a courtroom confession of his improper purpose. He went on local television to explain that the root of the crime, as he saw it, was that South Carolinians had been “exposed to the teachings . . . of people from New York and San Francisco.”
Had the judge kept his repressive purposes to himself, or had he been content to send the staff off to jail for six months instead of six years, the abuses of the criminal process involved in repressing Columbia’s antiwar movement would have gone unnoticed except by those caught up in it and by readers of the underground press. The political prisoner issue would have remained below the surface, as it does in numberless discriminatory prosecutions, but the six-year sentences drew heavy criticism from newspapers around the country. The Wall Street Journal commented, “This sort of thing could erode respect for the courts far more effectively than any radical onslaught.” Indeed, when the Vietnam war expanded into Cambodia a few weeks later, one of the sparks igniting disorders on the University of South Carolina’s Columbia campus was outrage at the outcome of the UFO trial.
The national criticism so stung South Carolina officialdom that the prosecutor agreed, months later, to reduce the punishment to a year of probation and a suspended sentence, a combination amounting to an enforceable order to get out of town. Although this turn of events was a bit of good fortune for a few citizens who had been sentenced to prison for taking their First Amendment rights seriously, the compromise could hardly vindicate the criminal system or restore a lost political opportunity. Repression can be diplomatic and still be effective. Columbia simply had no reason, by the spring of 1971, to push the UFO case any further. The coffeehouse never reopened after it was closed in January 1970. With its funds and energies sapped by the legal battle, the GI protest movement which it had served simply died out.3
It is easy enough to be indignant about the abuses of discretion in the UFO case, but they are only the tip of an iceberg. In obscure courtrooms across the country, policemen, prosecutors, and judges go virtually unchecked in applying their discretionary power in ways that chill political dissent. “Ordinary” criminal charges and apparently “routine” discretionary decisions are a perfect cover for unconstitutional programs of repression—repression implemented by the very officials to whom we have entrusted the integrity of our legal process. It is as important, today, to fashion checks against repressive uses of discretionary power at the “stretch points” of the criminal process as it was two hundred years ago to block the power of lawmakers to make dissent a crime. A Constitutional amendment will not, however, serve our present purposes. It will take a lot of hard work by legislators, prosecutors, judges, and others familiar with the special dangers and special needs of each “stretch point” in the criminal process.
Police
If we were to start from scratch to build a system of laws and enforcement agencies to protect us from disorder and to keep our communities peaceful, we would not send almost half a million armed men out on the street with the power to determine, on their own, which of us deserves to be interrogated, searched, and arrested, or who should be punished and what for. Yet, this is approximately what we have done.
One job of the police is to see that the guilty go to jail. They probably do as good a job of this as we can expect. On the whole, they investigate violations of law, arrest suspects, testify truthfully at trial, and enforce the law as well as their training and resources permit. But policemen, like the rest of us, form their own ideas about who should be punished.
What too few of us realize—because we ourselves appear to the police to represent the very values they feel dutybound to protect—is that the policeman often operates with virtually no guidelines from the legislature, the courts, or his superior. He must make selections among the many laws which he could enforce, and among the many violators who come to his attention. We have generated so many laws, sweeping so broadly over human activity, that full enforcement is impossible and policemen are, in fact, thrown back for guidance on their own views about who should be punished. Those views are unreviewed, and inherently unreviewable, by prosecutors and judges.
From their day-to-day experience, policemen learn to identify potential assailants and others whose criminal propensity they can predict with considerable accuracy. They make, or they try to make, arrests before serious crime is committed. As a sort of sixth sense, a policeman’s ability to recognize and act against “symbolic assailants” is undoubtedly necessary to his survival and desirable from the point of view of the rest of us. Unhappily, a sort of mystique has grown up around this, and police are accustomed to having prosecutors, judges, and juries vindicate their on-the-spot discretionary decisions. If a policeman thinks a person needs to be punished, he can arrest him, design a plausible charge, and usually see the case through to conviction.
But dissenters, whose “symbolic assault” is not of a criminal kind and is protected by the First Amendment, also trigger the sixth sense of the police. Police are sometimes as angered by attacks on Establishment values and political orthodoxy as they are by attacks on person or property. Not only can, and do, policemen administer on-the-spot punishment for “protected” political activity, but they can, and do, protect themselves from legal retaliation by leveling criminal charges such as disorderly conduct, resisting arrest, or assault on an officer, against those they have already improperly punished.
A policeman’s discretion to select among violators of laws which are commonly broken and the discretion inherent in the credibility accorded his testimony give him an extraordinary license to punish. With nothing to go on but his own value system, a policeman becomes a decisionmaker on social policy, a lawmaker quite beyond the control of the First Amendment.
My guess is that this is, and probably always has been, the most common and least visible type of repression in America. The Black Panthers were a case in point. They triggered a massive police crackdown by their rhetoric, by patrolling police patrols, by carrying guns to back up demands for Constitutional rights, by agitating for community control of the police, and by an aggressive pride in a racial identity which most white policemen feared. Some of the Panthers who were arrested, tried, and imprisoned were guilty of crimes, some were even guilty of the crimes with which they were charged; many, however, were victims of the discretionary power of policemen to punish their “symbolic assailants.”
Any doubt on this score vanished on September 5, 1968, when an organized gang of about one hundred off-duty policemen attacked and beat a handful of Panthers who were walking through the corridors of the New York City courthouse itself. The policemen’s evident belief that their lawlessness was justified, even in the halls of justice, is impressive support for the Panthers’ charge that, from 1967 on, a fair number of their members who were convicted across the country on the testimony of police officers were wrongly convicted. If so, they were certainly political prisoners.
In 1967, Martin Sostre, a reformed convict, was operating a bookstore in a Buffalo ghetto. After years in prison, he had come out a Muslim and political radical. His bookstore carried black nationalist, Black Panther, communist, and revolutionary works running the gamut from literature to propaganda. His politics were offensive to the Buffalo police department, but he was no criminal. In the summer of 1967 a riot swept through the Buffalo ghetto in the aftermath of Martin Luther King’s assassination. Buffalo’s chief of police later testified in Washington that Sostre was the “subversive” responsible for the explosion of black rage, and Sostre was charged with arson and riot. But his responsibility for the riot was unsupported by the facts, and a new charge was quickly substituted. He was arrested, tried, convicted, and sentenced to spend thirty to forty-one years in prison for possession and sale of heroin. Sostre was not into drugs, he was into politics. His lawyers convinced me that the drugs were planted on him by arresting officers and that he was framed.
Such flagrant abuses of police power as these are really beyond the stretch points of the law. The remedy is obvious, though obviously difficult. Policemen must be disciplined by their superiors, and by the wishes of an informed community, to obey the law. Much more difficult is finding a remedy for abuses of police discretion within the stretch points of the law itself. The fault here is not with the policeman so much as it is with the system. We have so overcriminalized human activity that the policeman has no choice but to make his own value-based selections. We encourage him to protect us from those who have not yet committed crimes. We provide him with virtually no guidelines, and those we do provide are often confusing and contradictory.
In one area there has been some progress made by the courts. Laws such as breach of the peace, disorderly conduct, loitering, and vagrancy are so vague that policemen clearly do decide, in each case, what constitutes the crime. The civil rights struggle in the South brought a number of these laws and a number of repressive enforcement decisions to the Supreme Court for review. The high-level judicial scrutiny led to the demise of vagrancy as a crime, and to a gradual tightening of definitions, with the result that politically motivated arrests and convictions under such laws are harder to obtain and harder to make stick on appeal. But these crimes remain very ill-defined in most jurisdictions and there is a vast reservoir of other equally vague offenses. Arrests which are abusive of the spirit of the First Amendment are made daily. Even where a conviction would be reversed if the victim had funds to pursue the point on appeal, or where the charges are thrown out when the case comes to trial, arrest is itself a considerable punishment for challenging a policeman’s value system.
This is enough to suggest that if we are serious about trying to halt political imprisonments flowing from unfettered police discretion, we must look to the reform of laws which cannot be fully enforced or which are so generally violated that selection is inevitable. Responsibility to amend and repeal criminal laws that are ill-advised, obsolete, poorly defined, or too costly to enforce fully should not be delegated to policemen making their decisions as they go.
We must look for reforms in police department decisionmaking as well. Where policemen are given discretion by an overly broad or unrealistic law but are not given legislative guidelines on how to make enforcement selections, police departments themselves should publish standards by which that discretion is to be exercised to investigate and arrest. If the legislature or the community objects to the policies when they are thus made visible, then the law or the standards can be changed. In any case, once policy is formalized defendants can begin to hold police to the policy. It would be a way to start.
Judges
A trial judge has wide discretionary power in setting the amount of bail, admitting or excluding items of evidence, permitting or denying lawyers an opportunity to raise an argument, instructing the jury on its duties, and determining sentence. When a judge’s discretion is informed by political bias, conscious or unconscious, instead of justice, he can punish those whose politics he hates.
A trial judge’s discretionary decisions are more visible than a policeman’s, but appellate judges have been understandably chary about limiting the power of their brothers on the trial bench. Legislatures, caught up for years in the liberal ideal of individualized justice, have gradually increased judicial discretion by giving judges an almost unlimited power to set sentences; but they have not established workable guidelines for the exercise of that power.
Heidi Ann Fletcher, a white girl who is the daughter of the former Deputy Mayor of Washington, D.C., drove the get-away car for her boyfriend and others who robbed a Washington bank. In the course of events a policeman was shot and killed. Nevertheless, Miss Fletcher was immediately released without bail. After pleading guilty to murder, armed robbery, and illegal possession of weapons, she was given a short sentence at a correctional facility where she could be near her family.
Angela Davis was arrested about the same time on suspicion of murder, kidnapping, and conspiracy in connection with the shoot-out at a San Marin courthouse in which a judge was killed. Angela, both black and a communist, was denied bail.
Upon arraignment, the evidence of Heidi Fletcher’s guilt was overwhelming, while Angela Davis’s guilt was conjectural at best. Angela Davis was finally acquitted on all counts by the jury. It may well be that in both cases, justice prevailed in the end, but Angela Davis was imprisoned for sixteen months, waiting for the wheels of justice to grind so exceedingly slow, because a white judge in his discretion denied her bail.4
Some twenty-four million Americans have smoked marijuana. Policemen have found it convenient in recent years to arrest politically active youths, to find or to plant a joint on them or among their possessions, and to stand them before judges for sentencing. In ordinary, nonpolitical cases, possession of marijuana usually results in a probationary sentence. John Sinclair, a radical poet and leader of the White Panther Party (now the Rainbow People’s Party) in Michigan was sentenced to nine and one-half to ten years in prison for making the mistake of lighting up with two undercover police intelligence agents assigned to watch his political activities. Lee Otis Johnson, a black militant and antiwar organizer at Texas Southern University, got thirty years for giving a marijuana cigarette to an undercover officer who had posed as his friend. These were exceptional cases, of course. Defense committees were formed, and after long imprisonments, the sentences were struck down on appeal. Two of the six justices of the Michigan Supreme Court called the Sinclair sentence “cruel and unusual punishment.”
Blacks get longer sentences than whites; political draft resisters get longer sentences than those whose draft refusal is religiously motivated. Racial and political biases are clearly improper grounds for punishment, whether they are embodied in statutes or hidden in the recesses of a judge’s mind. But it is rare indeed that a decision “within the judge’s discretion” is overturned. One reason is that it is very difficult to articulate rational grounds for any sentencing decision. We must face the fact that no method exists for fixing a “reasonable” punishment except the most primitive kind of guesswork. Perhaps it is time to recognize that judges are no better than the rest of us at predicting human behavior or the consequences of administering punishment. Perhaps it is time to return to a sentencing structure set within very narrow limits by the statutes which define the conduct to be punished.
An intermediate remedy, one applicable to bail abuses as well as to sentencing abuses, would be to require judges to state the reasons for the decisions they make. A judge’s biases can be checked by him or by a higher authority only if they are articulated. Precedents can be developed to guide and contain the exercise of judicial discretion in future cases only if we have something to go on.
We tend too readily to think of the judge as a man above politics, a man wise with experience, a man whose concern is evenhanded administration of the law, not the outcome of any particular political conflict. And, indeed, the American judiciary has protected our system well. There are many examples of outstanding judges setting aside their interests and their politics to protect the First Amendment rights of citizens brought before them. I think it not too harsh to say, however, that most judges, even some impeccably honest and well-respected judges, are influenced in subtle ways by being part of the complex Establishment which “runs things” and benefits from the status quo. They are believers in the system that has rewarded them, even if they are better than others at exercising their power without yielding to the urge to repress advocacy of fundamental political, economic, or cultural changes.
It can be said another way: those who dissent and want to work for fundamental changes are unlikely to become judges. Nor would the dissenters be likely to make better judges. By all indications, they would be more ready to yield to their biases and to their certitude that they are right than are those who presently occupy the bench. Counterrevolutionary heresies are generally given short shrift after revolutionaries take power. Yet, in no era is it sufficient to rely on judges alone to guard against repressive law enforcement.
Prosecutors
I have never been a policeman or a judge, but I prosecuted cases in the Air Force and I worked for two years in the Justice Department with the section that made the decisions on each request from the U.S. Attorneys to proceed with prosecutions in cases where authorization was required. I agree completely with the late Justice Jackson who remarked, when he was still Attorney General:
The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen’s friends interviewed. . . . He may dismiss the case before trial, in which case the defense never has a chance to be heard. . . . If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. . . . [A] prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. . . . It is in this realm—in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies.5
The prosecutor’s power is literally “lawless,” in that there is no provision in the law giving it to him or directing him in its use. He need not explain, and he need not be consistent. He can pile on charges or plea-bargain them away as he pleases. In deciding whether he has enough evidence to prosecute, he knows that he can almost always get a grand jury to oblige him with an indictment, particularly against politically unpopular individuals. His decision to go forward, and the imprimatur of an indictment from the grand jury, can sometimes be enough to sway a jury to convict on even the most questionable evidence.
A prosecutor’s motives for setting the criminal process in motion against a particular person, against an antiwar protester, an advocate of abortion reform, or an opponent of school busing, for instance, are his own; and if he chooses to call a proceeding a “routine” matter, there is no review and usually no questions are asked.
Recently I was talking about the Ellsberg case, political trials, and civil liberties generally, with a friend who is a professor at Harvard Law School. I asked him: “What position would you like to occupy to try to change the way things are going, if you had a choice?” His unhesitating reply was “Prosecutor.” He reasoned that a judge concerned about abuses of civil liberties must wait for a case which gives him an opportunity to devise a remedy; defense attorneys usually have to go through long trials and appeals to undo the results of any repressive decision made along the way; but a prosecutor each week makes hundreds of unreviewable, invisible decisions that go to the very heart of justice. A good prosecutor can do more than most to keep the political and criminal processes in their respective places.
On the other hand, it has proved impossible to devise workable protections, even mild restraints, against abuses of prosecutorial discretion. I can think of no better illustration than the prosecution of Daniel Ellsberg.
I have described earlier the various political considerations that must have led the government to bring the unique set of criminal charges against Ellsberg in the first place. No one else had ever been prosecuted, for doing what he did, under the laws he was charged with violating. It is difficult to imagine a more powerful case to justify dismissal of an indictment as discriminatory.
The impossibility of proving a prosecutor’s improper purpose, except where he admits it, has left the law in an extremely primitive state: there is virtually no precedent.
The Constitution guarantees each citizen the “equal protection” of the law. This has meant, since 1896,6 that prosecutors violate the Constitution if they single out, for an improper reason, a particular individual or group for prosecution while leaving other individuals, who they know have committed the same acts, untouched by the criminal process. But the few precedents indicate that improper government conduct of this sort will bar a prosecution only when the individual accused can prove a systematic or intentional pattern of discrimination which is not based on some “reasonable” law enforcement purpose. It is easy enough for prosecutors, and particularly for the Justice Department, to devise a “reasonable” ground, or one that no federal court will disbelieve, for whatever prosecution they choose to commence. The Constitutional prohibition against discriminatory prosecution is the law of the land, but it is about as enforceable as a law denying the power of rain to fall.
Ellsberg was faced with more than a lack of precedents in trying to base a defense on the ground of discriminatory prosecution. An attempt to prove discrimination is usually as exorbitantly expensive as it is difficult. Usually the only way is to show that there are many others who regularly do the very acts with which the defendant is charged, and that none of them has ever been prosecuted. Proving a negative is never easy.
A prosecutor, backed by the vast resources of government, has no problem getting research done, paying witnesses’ expenses, paying for legal counsel, or making a living until the case is over. One reason why legal challenges are seldom raised to the prosecutor’s exercise of discretion is that most defendants simply do not have the money to pay for what has to be done.
Although Ellsberg’s defense was always short of money, the notoriety and importance of the case enabled him to raise, through public contributions, substantially more than could most defendants. The Chief Counsel, Leonard Boudin, and co-counsel, Charles Nesson, had been intensively engaged in preparing the defense before I joined them. As one of the defense counsel, I contacted more than 120 potential witnesses myself prior to the scheduled opening of the trial in early June of 1972. We were prepared to present the testimony of some twenty-three witnesses at a pre-trial hearing on the question of discriminatory prosecution.
The question might legitimately be asked: why so many? Sometimes lawyers are justifiably criticized for making everything too complicated and difficult. Not, I think, in this instance. It was our belief, and still is, that Daniel Ellsberg was singled out in order to punish and make an example of him because The Pentagon Papers he copied and tried to get to Congress were politically embarrassing when they were ultimately published by the newspapers. They are a dramatic revelation of dereliction, secrecy, and deceit by the Executive Branch, and they gave further support to the critics of the war in Vietnam.
It was necessary for the defense to show that government officials regularly handle classified material exactly the way Ellsberg had handled it in this case. Our witnesses were ready to testify that they themselves often copied classified material, removed classified material from government buildings where they worked, transferred such materials without formally logging them, disseminated classified materials to persons not formally authorized to receive them, retained certain classified material in their personal possession, and treated such material as their own personal property after leaving government. Since we had to show that such things were done as a general practice without criminal prosecution, we had to round up former high officials of government, Washington journalists who participated in these practices, and classification experts.
When the judge asked us what we could prove in a hearing, we were able overnight to present him with a summary of the anticipated testimony. That offer of proof remains the most devastating indictment ever presented of the security classification system, as it actually operates. Its impact upon the judge seemed apparent. He postponed a decision on our request for a hearing for over a month although at the time of the proof’s submission his decision appeared imminent.
The problem for the judge was further complicated when, two weeks after our offer of proof, the Circuit Court of Appeals for his own Ninth Circuit demolished the government’s position that the law provides no such defense as discriminatory prosecutions. The appellate court reversed the conviction of one Steele, an outspoken resister of the census who had been prosecuted for refusing to give census information, a favorite conservative cause. Steele showed that the government prosecuted him and three other census resisters who were speaking out on the census issue, while it had not prosecuted six more who had committed the same offense but were quiet about it. In a strong opinion, the court said: “Since Steele had presented evidence which created a strong inference of discriminatory prosecution, the government was required to explain it away, if possible, by showing the selection process actually rested upon some valid ground.”
It appeared to us that the Ellsberg case was far stronger than Steele’s. We could show nonprosecution of thousands of people, not just six, who had dealt with classified material as Ellsberg had. In the Defense Department alone, over the past four years there had been 1,966 investigations concerning improper physical protection of information with 2,372 administrative penalties imposed and no criminal prosecutions or recommendations for criminal prosecution.
Yet, we were ultimately denied a pre-trial hearing on the issue. The trial judge may have been right in his application of the law on this issue to the Ellsberg case. Right or wrong, it should be obvious from this recitation how difficult it is, once a discriminatory prosecution is under way, to undo it by relying on the right to “equal protection of the laws.” When judges are reluctant to act, defendants victimized by this sort of low visibility repression must fall back on the jury’s common sense and instinct for fair play; they must carry the monumental and very expensive burden of getting enough evidence before the jury on this complicated issue.
Judges usually prevent the juries from hearing any evidence of unfair discrimination by the prosecutor (Judge Agnew’s discretionary rulings against the UFO defendants were fairly typical), and they generally instruct jurors to ignore any evidence of this sort that chances to slip in. The political defendant can only hope that his jurors will read between the lines, exercise their instinct for fairness, and acquit him. It is a rather weak line of defense against repressive distortions of the American ideal of evenhanded justice.
If a politically active citizen commits a crime, we expect, and the integrity of our criminal process demands, that he be treated as any other suspect. He should be arrested, prosecuted, tried, and sentenced for what he has done in violation of our laws. When the men who administer the criminal process discriminate against an individual because of his political stature, views, or affiliations, they invite the victims to politicize the criminal process even further, and they invite a watchful citizenry to grow cynical about the rule of law and the liberty guaranteed by the First Amendment.
Virtually every reform of the American criminal process has entailed a grant of greater discretion to the men who administer it. This has proved an unfortunate method of disguising our failure to decide precisely what we expect our criminal process to do, and our failure to find and prove effective ways to do it. No system of government and no criminal process can operate without some flexibility. Every government, including our own, is a government of laws and men. We cannot eliminate discretion entirely, and to do so would create other injustices. But we must recognize the danger points of discretion, taking into account the human frailties of those we ask to exercise it, and we must learn to channel and inform its exercise so that discretionary power serves the system as a whole and the individuals on whom it falls.
Notes
Useful sources for this chapter were Kenneth Culp Davis, Discretionary Justice: A Preliminary Inquiry (Baton Rouge: Louisiana State University Press, 1969); Paul Chevigny, Police Power (New York: Vintage, 1969); and Abe Goldstein, “Police Discretion Not to Invoke the Criminal Process: Low Visibility Decisions in the Administration of Justice,” 69 Yale Law Review 543 (1960). The title of this chapter was suggested by Alan Dershowitz’s article, “‘Stretch Points’ of Liberty,” The Nation, March 15, 1971, pp. 329–34.
- The quote appeared in Dershowitz’s article. Six weeks later the Mayday Tribe launched its quixotic attempt to shut down the government by tying up rush hour traffic in Washington, D.C. The antiwar protest, irritating and illegal though it was, was not a national emergency; but on the morning of May 3rd, when the protest began, the Washington police department’s standard operating procedures for making arrests during civil disorders were suspended. The use of “field arrest forms” and polaroid photographs, a procedure designed to satisfy the minimum constitutional requirements in a mass arrest situation, was scrapped. From May 3rd to May 5th, over 13,000 people were swept up off the streets of the capital. Virtually all of the arrests were illegal, and participants, passersby, tourists, spectators, and newsmen were herded together in overcrowded cells and make-shift detention centers. Not only were the innocent caught up in the net, but because the field arrest forms had been abandoned, those who had been arrested violating the laws could not be prosecuted. Virtually all the cases were thrown out of court. On May 5, Assistant Attorney General William Rehnquist, now Supreme Court Justice Rehnquist, defended the suspension of constitutional procedures by invoking a doctrine of “qualified martial law.” There is, of course, no such doctrine. Deputy Attorney General Kleindienst, Attorney General Mitchell, and President Nixon himself praised the methods used and held them up as a “model” to be followed in the future. The conclusion is inescapable that the operation was devised and authorized at the highest levels of the administration. See American Civil Liberties Union of the National Capital Area, Mayday 1971: Order Without Law (July, 1972).
- See, ch. 3, n. 7.
- The UFO story is drawn from The New York Times, August 12, 1968, and August 28, 1968; The Washington Post, April 18, 1970, April 24, 1970, April 28, 1970, and April 29, 1970; Brief of Appellants in The State of South Carolina v. The UFO, Inc., et al.; and a telephone conversation with Reber Bolt, who prepared this brief for the appeal to the Supreme Court of South Carolina.
- Miss Davis was released on $102,500 bail shortly before her trial began. A California law denies bail to defendants charged with “capital crimes” where “the proof is evident or the presumption great.” It was the judge’s view of the evidence that kept her behind bars for sixteen months. When, in February 1972, the United States Supreme Court ruled the death penalty unconstitutional, California’s “capital crimes” provision was nullified, in the judge’s view, and he set the bail.
- Robert Jackson, “The Federal Prosecutor,” 24 Journal of the American Judiciary Society 18, 19 (1940).
- Yick Wo v. Hopkins, 118 U.S. 356, 373 (1896).
Editor's note: This chapter was written by Charles E. Goodell and originally published in Political Prisoners in America (Random House, 1973), Chapter 13, pp. 184–207. Reproduced by permission.
