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The Escobedo ruling highlights a critical vacuum in U.S. criminal justice: the lack of a complete set of rational standards to coordinate the thinking of police, judges, lawyers, law professors and informed citizens. The Supreme Court has done the pioneering work—work that it could not constitutionally avoid. But rule making by constitutional interpretation has limits; such rules tend to be confined to the happenstances in particular cases and are often more confusing than clarifying. The burden is now on Congress and state legislatures, which are ideally equipped for the fact finding required in so vast and varied a country as the U.S.
Many states are in fact busily modernizing archaic codes of criminal procedure, and devising new legal weapons to meet contemporary conditions. Under New York's new "no knock" law, for instance, policemen no longer need identify themselves when executing search warrants in certain kinds of cases, such as those involving narcotics, thus reducing the risk that suspects will destroy the evidence. Local authorities have also sought to reform the out-of-date bail system, under which bondsmen grow fat while poor defendants stay in jail, where they cannot build their cases. As a result, 59% of such defendants get convicted, compared with 10% in cases where the accused can afford bail. One hopeful solution to the problem is the four-year-old Manhattan Bail Project, through which indigents are released on their own recognizance; less than 1% later fail to show up in court.
Order & Equal Justice
The prestigious American Law Institute may offer a way out of the Escobedo impasse with a model code of pre-arraignment procedure that is being force-drafted by Harvard Law Professor James Vorenberg and dozens of eminent advisers. The drafters tend to approve police interrogation of suspects under proper safeguards. Though the precise formula is still being debated, one possible answer is that grilling should be made "visible"—if not to outside witnesses, then from the evidence of movie cameras or tape recorders.
The most ambitious of all efforts at reform is the American Bar Association's three-year project to offer state legislatures "minimum standards" of criminal procedure. Started last year, under Chief Judge J. Edward Lumbard of the U.S. Court of Appeals for the Second Circuit, the undertaking is being researched by 80 of the country's top police officers, judges and lawyers. One A.B.A. committee seeks ways to get lawyers for indigents in all 3,100 of the nation's counties; more than two years after Gideon, there has been virtually no progress in 2,900 counties handling 70% of U.S. criminal cases. Another committee is investigating sentencing procedures. At present, no courts in the U.S. save in Connecticut and Massachusetts have the power to review sentences, however harsh or inadequate, unless they exceed statutory maximums. A more equable system of criminal justice, most authorities agree, would also demand better training, higher pay and greater public support for the nation's 350,000 policemen.