We have to chjoose," said Oliver Wendell Holmes Jr., "and for my part, I think it less evil that some criminals should escape than that the government should play an ignoble part." Thus, speaking in 1928, Mr. Justice Holmes not only descried one of the most hotly debated social issues of the '60s, but foreshadowed as well the present-day philosophy of a Supreme Court that has done more than any other in U.S. history to bolster the rights of the individual against "ignoble" government power. In so doing, the court in recent years has wrought a revolution in criminal justice.
Nonetheless, in an era when the incidence of crime in the U.S. is increasing at up to five times the rate of population growth, the Supreme Court—as viewed by its critics—appears to have ignored the urgent threat to law and order in favor of abstract constitutional principles. Law-enforcement officers are almost unanimous in deploring a series of decisions that seem to them to be aimed at "coddling criminals" and "handcuffing the police." The court's rulings outlawing accepted methods of arrest and interrogation, protests Chicago Police Superintendent Orlando W. Wilson, are simply "devices for excluding the truth from criminal trials." Many legal scholars, while conceding that the court has redressed some longstanding abuses, are concerned about the enormous problems of readjustment it has posed for police and prosecutors.
Unlike many constitutional controversies, the debate over crime and punishment involves the emotions and physical security of every American. City dwellers in particular, for whom parks and streets after dark bristle with potential danger, would argue that the safety of the innocent is at least as implicit in the Jeffersonian ideal of "equal and exact justice to all men" as fair treatment for the accused.
The actual effects of recent Supreme Court rulings on crime and police procedures are hard to measure. "Criminal laws," says Yale Law Professor Alexander Bickel, "are blunt, primitive tools of social control. The real trouble is that criminal law doesn't fit what you are trying to do." Narcotics and gambling, Bickel points out, are both primarily social problems for which the law has no real cure. Clearly, police must have effective powers to curb these offenses, as well as more serious crimes. The question that has never been fully answered in the U.S. is what the extent of those powers should be.
The Individual v. the State
Many experts gravely doubt that law-enforcement agencies even now have either the legal or technical weapons needed to combat violence, theft and organized crime at today's intensified levels. At the heart of the controversy over the court lies the danger that the judicial pendulum may have swung too far toward protection of the individual criminal, too far away from protection of society.