Law: Burger Takes Aim at Crime

The Chief Justice blasts the “reign of terror” in our cities

The Chief Justice of the U.S. Supreme Court’s annual report to the convention of the American Bar Association is usually a businesslike survey of problems of court administration, touching on such issues as jurisdiction and clogged dockets. This year, however, was an explosive exception. When Warren Burger stepped to the podium at last week’s A.B. A. meeting in Houston, he zeroed in on a single, highly charged topic—violent crime—and let loose a broadside at the nearly “impotent society” that had failed to come to grips with it. “Why do we show such indignation over alien terrorists and such tolerance for the domestic variety?”

Burger questioned the lawyers. “Are we not hostages within the borders of our own self-styled enlightened, civilized country?”

To combat the “reign of terror in American cities,” the nation’s top judge called for greater stress on the “deterrent effect” of “swift arrest, prompt trial, certain penalty, and—at some point—finality of judgment.” He suggested hiring more prosecutors, defenders and judges so that a defendant could be tried within a few weeks of arrest, rather than months, and get his appeal heard within eight weeks. One round of direct appeals per defendant, he argued, should be enough.

After that, subsequent judicial review should be limited to “genuine claims of miscarriage of justice” and should not hinge on “technical errors, unrelated to guilt or innocence.”

The Chief Justice’s points appeared to stem from a belief that the “massive safeguards for accused persons” built up by the judicial system in recent decades are out of proportion with the protection now afforded to law abiding citizens. He urged more stringent standards on bail to prevent the release of suspects likely to commit a crime between their arrest and trial. For those who end up behind bars, he renewed his familiar proposals for better facilities, improved training, and more sensible incentives to “learn the way out of prison.”

Burger acknowledged that what he called his “damage-control program” would be enormously costly. But he maintained that it was “as much a part of our national defense as the budget of the Pentagon.” Many in his A.B.A. audience, which interrupted him eight tunes to applaud, obviously agreed, and so did much of America. The New York Times pointed out, in one of the many editorial page responses that the speech provoked, that Burger touched a nerve with “an entire generation of citizens who dread the city streets and in their fear feel deprived of elementary rights.” David Armstrong, president-elect of the National District Attorneys Association, praised the speech for “exposing the cracks in our system before they get worse and the system breaks apart.”

Yet many experts, even those who welcome the Chief Justice’s efforts to focus attention on the issue, questioned the efficacy and even the constitutional! ty of some of his solutions. “You don’t solve the problem by eliminating procedural safeguards,” said Michigan Law Professor Yale Kamisar. He and others point to studies showing the great difficulty of predicting which suspects will actually com mit additional offenses if released while awaiting trial. Critics of the speech also objected to the idea of permitting convicts to file habeas corpus petitions only for miscarriages of justice, and not for technical errors. One reason: such petitions account for only a small portion of a court’s work load and most are promptly dismissed. Moreover, points out Howard Eisenberg, executive director of the National Legal Aid and Defender Association: “One person’s technical err or is another person’s miscarriage of justice.”

The proposals that hold the most prom ise in experts’ eyes, like speedy trials and penal reform, are widely deemed to be too expensive ever to come to pass.

The likelihood of raising — or diverting — the necessary revenue is considered particularly slim in cities and states where the problem is most pressing. Nevertheless, Burger’s message has a powerful symbolic importance, all the more so be cause he is not the only high federal official who is calling for a new attack on crime. At his confirmation hearings last month, Attorney General William French Smith said that the Justice Department would make violent crime its top priority, in contrast to the Carter Administration’s focus on white-collar crime.

When pressed by reporters for specifics on how the Federal Government can deal with what is largely a state and local responsibility, Smith talked some what vaguely about the importance of “leadership” on the issue. Legislative aides in the Justice Department so far have come up with few new ideas. “We’ve been around this before,” says one official, “and the solutions didn’t always work.” Old hands recall the law-and-order fervor of the Nixon Administration and the failed efforts it produced. Ex ample: the Law Enforcement Assistance Administration, which for 12% years has financed innovative police programs and sophisticated equipment, has had fu ture funding cut off by a disappointed Congress.

One scheme under consideration at Justice is a fund to compensate victims of federal crime. At the White House, meanwhile, there is talk of having President Reagan name the week of April 20 National Victims’ Rights Week. This seems to represent scant progress indeed.

But it does dramatize the practical and financial realities against which Smith’s intentions and Burger’s stirring call must be measured.

Reported by Evan Thomas/Washington