Georgetown forum; The law, the individual

The law the individual and the common good. The topic for the eleven hundred thousand seventy second consecutive broadcast of the Georgetown University radio forum. Another in a series of educational and informative programs from Washington D.C. The Georgetown forum was founded in 1946. This is Wallace Fanning speaking to you by transcription from the Raymond Rice studio on the campus of Georgetown University historic Jesuit seat of learning in the nation's capital. Today's discussion will be the law the individual and the common good. Participating are for third year law students from the Georgetown University Law Center. Mr. Barry Portman Society of Jesus from Texas. Mr. Lee Cook from the District of Columbia. Is this Barbara Cohen from New Jersey and Mr. John Feit Yola from New York. This is the first of four programs on a characteristic problem of the urban world namely crime.

Criminals are people who have been proven to be violators of the law. Therefore the law itself is of paramount importance in any discussion of crime. Today four students from the Georgetown University Law Center expressed their opinions as to whether or not there is an imbalance in the law itself. For example does the law over emphasize the protection of individual rights at the expense of defending the common good. Today's panel of young people soon will be practicing law. Their views could have great import for the future. And we're going to begin by asking Mr. Portman or telling him that it's being said courts are coddling criminals and ask if he feels if that's true. Well I think you'd have to more carefully define that phrase. Criminals First of all are as you have mentioned in your introduction proven violators of the law. I think the popular understanding is that a

criminal is someone who has been arrested actually before a court has found and some found someone guilty of a criminal really stands in the same place that we all do and that I think when you look to the procedures that were established initially by the United States Constitution and their interpretations by courts that they're there to protect all of us. It's a value judgement made by the framers of the Constitution that the individual should have certain protections versus the state. And this I think would say something about the Framers idea of what the common good was peace of the individual right. Mr. Cook I think in a sense I agree. Perhaps the law is coddling criminals and let me explain what I mean by that. For instance I think I think a slumlord an intercity who is allowed to charge exorbitant rent and who was allowed to keep his

apartment or his house in a state of disrepair I think he is a criminal I think the law coddles him. I think the unscrupulous credit merchants who operate in the inner city charging you to use various. Interest rates to the detriment of the people who live in the inner city. I think they're criminals also and I think the law coddle them. The point I'm making is that coddling criminals is a you know America it's sort of a slogan that people have latched onto. We tend to think of criminals in the sense of what's reported in the newspapers of those who are arrested. But I think to a large extent some of the real criminals in American society simply aren't brought to justice and brought to justice so perhaps the law is coddling criminals. But that's a little different view from the one that's normally help as it's called. I think when we talk about coddling criminals or Usually we usually conjure up the picture of the

man everybody knows is guilty and some procedural nicety allows him to go free. But those procedural niceties that protect important rights for example the Fourth Amendment right to be free from unreasonable searches and seizures. The evidence that might be obtained by an unreasonable search and seizure might lead all of us to believe that the person who was searched was guilty but that doesn't justify the search none of us wants to be searched unfairly nobody wants midnight raids for searching for ways to convict us of whatever we may have done or not done. This is true of the man whose whose crime is an income tax evasion. Is it is it the men who is hiding narcotics or the man who is charging unreasonable rents and falsifying his books with who are the user. And I think Willie makes a very good point when he says that we need to think about all these people as criminals and whether we want these procedural protections for all of us.

Just for a two year old I'm afraid I'd take a different tack. To me the question is not whether we're coddling criminals but whether the way we enforce constitutional rights is the most proper way we can think of. I'm afraid I don't think it is constitutional rights as the other three people have pointed out and normally enforced by excluding from evidence or trial evidence seized in violation of a constitutional right. The purpose behind this is obviously to deter the police and other law enforcement officials from engaging in unconstitutional conduct. But I think the point has to be has to be made that often the deterrent effect doesn't work. For example on the Fourth Amendment it's estimated that only 1 in 10 encounters between a police and a citizen lead to an arrest. Therefore nine out of 10 times the police are in fact not being deterred. Yet this highly probative evidence which is what it is must be excluded from trial. And I wonder if there weren't more sensible ways in forcing constitutional rights for example under other systems of law the police are fined or suspended from the police force when in fact they do defend constitutional rights. And

I wonder if our emphasis on exclusionary rules is well placed. Michael I think you pointed out that the exclusionary rule is a very inadequate device for protecting our constitutional rights simply because of an unreasonable search can be made and if it doesn't produce any evidence which will go to trial to be excluded there's nothing at the moment that happens the police can go on making these unreasonable searches and no sanctions no effective sanctions are taken. That doesn't convince me that the exclusionary rule should be abandoned. It may be not enough. There may need to be other ways of trying to protect us from unreasonable searches. But the fact remains that evidence which is seized is the result of an unreasonable search is evidence that nobody had any business getting. If you had something under your pillow and nobody had any right to get there then if they get there. Wrongly they shouldn't be able to use that evidence it should be the whole thing should be erased. Excusing that. I think one still has to answer. Just this guy does this point. Why should the criminal go free when the

constable blunders the question which I have difficulty answering. Well I'd like to I'd like to make a comment there and John talked about the one in 10 that gets the court based on perhaps a reasonable or unreasonable searches. Well I'm concerned about that one person. Perhaps the other nine encounters don't reach the courts but what happens is that one individual that does reach the court. I think I think constitutional rights. The Constitution The Bill of Rights is geared to that one person once he is brought into the judicial process. I think he is entitled to all of the protections of the constitutional good. Now when it's often said that perhaps you know we it's a balancing process but perhaps the individual's rights of being exploited to the exclusion of the society's right. But I think that's precisely what the Constitution is meant to do. In a criminal case a man is about to lose his liberty. And I think it's quite

correct that before he loses that that liberty it should be very very difficult for law enforcement officials to deprive him of that liberty until all of the legal safeguards have been adhered to. And if they are not here to then I think perhaps he should take advantage of those. Bill writes Mr. Portman but don't you think that there's perhaps an over emphasis on the criminal err on the area between arrest and conviction. We have attached all our attention to the procedures at that point. But it seems to me we are quite lacking any procedural good safeguards in the areas of sentencing and then some other what I guess would be termed low visibility areas one that John brought up before the question of arrest. The fact that. That there are no real procedures involved in how an officer exercises his discretion in arresting a person.

There are also other areas of the law which were in at least in the common law tradition formally part of the criminal process and now have been delegated to administrative courts I'm referring here to juvenile courts. I'm referring especially in the District of Columbia to the Narcotics Act whereby the suspected offender may voluntarily turn himself over to the United States attorney who thereby who arranges for commitment to the federal hospital here in the city St. Elizabeths I'm referring to mental patients to people who are civilly committed and yet who lose the same liberty that a quote suspected criminal and quote loses when he's in the criminal process yet none of these individuals have the same safeguards and it seems to me they are in the same danger of losing liberty. And this is one area I feel that lawyers have not adequately

protected the rights of the individuals who are in danger of losing liberty. Now I don't mean to suggest that I don't mean to suggest that we we shouldn't be diligent in protecting individuals throughout the criminal process. I'm simply saying that I think it's a very popular notion that that criminals sort of get off perhaps perhaps they do but I'm so I think this is a very important stage in a criminal process initially want to man a man meets law enforcement agent offices. And I think every possible safeguard should be should be utilized by that individual to to make certain that he isn't incarcerated unfairly. I think sure we should have safeguards at every stage. But I'm simply saying that the safeguards at the at the initial stage and I don't reasonable in my opinion. Mr. Musharraf I think as lawyers we often feel that the media has not completely fulfilled its responsibility in elucidating to the society. What precisely is involved

in the criminal justice system. One is not acquitted or his conviction is overturned one beats the rap. And when one reads even the finest newspapers one gets a very very poor impression of what happens in the criminal justice system with the result that the society has difficulty understanding what is the lawyers function what is the judge's function what is the juries function. And I thought that was brought home in a horrible fashion in the recent Soran trial Mr fraud I would refer you to the written case discussions going on between the broadcast industry for example and the American Bar Association and it is not through any fault of ours that we did not get in the court rooms to show the people of the United States what was happening in the judiciary system. Well I think the point that John is making there is not a question of publicity in terms of how much publicity would be given to evidence that may or may not be admitted in court. I think the point that John was making was regarding what in fact was at stake in that trial.

The newspapers. Played up the jurors emotions the fact that one man felled are argued to the jury that that the man who was killed was not just Senator Kennedy but he was a father of 11 children and all the personal emotions which I'm sure do sell newspapers but what was at stake there or at least what I think we failed. The four of us who have discussed this feel was at stake was the question of criminal responsibility was the question of a statute which talked about diminished responsibility. And there was very little discussion about this in the newspapers and I think there I think the newspapers have a responsibility to educate the public not to take a stand on it perhaps but at least to bring out the meaning and the policies behind these statutes. And there was no emphasis given to this to my knowledge in the newspapers. Well Mike my contention though is if you put again in the defense of the media and not of

newspapers but of television or radio if you put the public in the courtroom by through the medium of television then the public won't need to be educated the public will educate itself as to what's going on. I'm going to hell and I'm not sure that's entirely true. Here I get back to my original point the thing that concerns me most is that the news media television radio newspapers put a great deal of emphasis for instance on the apparent physical violence for instance if a man robs a bank That's PAGE ONE. One of the local newspapers and perhaps it should be page one. But I'm saying that equally important are the kinds of things that go on fences in our corporate world that that genuinely affect people's ability to live. These things have far reaching consequences. But those kind of those kind of crimes are not the type that I talked about in any amount of detail for the

news media. We are led to believe that you know a crime is a crime that matters to Americans. Those that deal with robbery and with a rape. And I just suggest to you that if a large corporation in this country our number of logical operations in this country get together and fix prices so that so that you have much higher prices on products that normally would prevail on a true competitive system I suggest to you that you are perhaps especially with poor people you are. You endangering people's lives the economic ability to survive and perhaps those people might die a slow death but never Nevertheless nevertheless that's a death that's just as certain as a robber pulling the trigger of a gun. And I say one is no less a murderer than the other. I quite agree with you and I think that we are reporting these things in in television

news. I perhaps it's being reported I'm talking about the emphasis that's put on the violent crime for instance. If you'll take a look at any daily letter to the editor the things that people complain about in terms of crime they're not talking about the kinds of crimes that big corporations. Engage in their talking about they're talking about the bank robbery they're talking about the rape and I think you know exactly what what what the problem is it's not all in how television or newspapers or anything else presented the emphasis they put on it it's the emphasis with which it's received as the thing that people are interested in. Mr. Pratt you know I think the point we're trying to make though is that as we look at the criminal justice system the emphasis on trial by the newspapers is very misplaced. I think the recent statistics which show 85 percent of the people arrested finally if they are convicted plead guilty. In other words what we have as Barry pointed out before is a series of very low visibility discretionary

judgments from the policeman who decides to arrest for the committing magistrate who decides to admit the bail to the prosecutor decides whether to pay for the felony or not. And therefore we would like the media to concentrate and to really subject these these very discretionary judgments to detailed analysis much more detailed analysis than they receive now. I think that's the point we're trying to make. But what about the law itself. Is that is that at fault in in allowing these things to happen. Well if I might answer that. I think part of the blame might be there. Let me say the part that I do not think would be there. A trial is always a drama. You have two adversaries in the lawyers. You have a jury who has to pass upon a incentive especially in capital cases the question of life or death. You have something that would naturally stir the public's interest because it's heightened by the really the drop dramatic form of a trial. But I think at the same time you have a number of other areas

where this where you lack this dramatic form yet the same risk is being taken by the defendant or as he's called very often in other trials the patient or the child that's in custody of the state. And yet the same danger is there the possibility of losing liberty the possibility of having one's life directed in a certain manner without anyone to speak on behalf of the person who will be facing the government without in many cases even the assistance of a counsel just appointed by the court. Let's go on. I think that in line with what John was saying it's much less important to try to get the media into the courtroom and into the trial than to try to focus on some of these low visibility decisions because we're coming to to some important change we may be coming to some important changes in the area of some of these low visibility decisions and it's important that the public response be well informed so that changes can be made

carefully and thinking of preventive detention right now which is on everybody's lips and the bail problem when bail is set. Various factors are taken into consideration. Traditionally the idea of bail was just to ensure the return of the criminal to trial but now we're beginning to think in terms of. Whether the danger of the danger to the community should be considered something that judges have considered for a long time but it was not in keeping with judicial decisions the courts and the press to some extent have been focusing the public's attention on the fact that danger to the community has been considered by some has been criticized as a criteria by others and ultimately it's up to the public to decide whether this is within constitutional limitations whether this is something that we do want to consider until now the balance has always been better that when guilty men go free nine guilty men go free than that one innocent man be convicted. Preventive detention reflects a different idea and that is

better that somebody better than the nine men who are. Well bet it better that we're detaining some people who might not convict crimes and commit crimes in order to be sure that some crimes some crimes aren't committed at all. This is a decision that shouldn't be made in a low visibility way at all. Mr. Fox you know I think another important element of focusing on these low visibility decisions is to finally test how accountable are the people making this these decisions to the community obviously how accountable is the policeman who decides to let one number's runner go while he picks up a narcotics addict or the prosecutor or the committing magistrate will these people. There's a very essential question here is whether the becoming good is in fact being exercised by these people are they in any way restrained by their vision of what the community wants and the other question is should they. Well here's another question if they don't who will. If they aren't accountable sir right if they if they don't do the job who does it.

If so how is one policeman today or tomorrow here or they are different than another or a judge or a prosecuting attorney or whatever it's in the nature of the system that these people have to make discretionary decisions but I think that they're responsible officials whether they be policemen or judges less so judges perhaps but legislators anyway are very sensitive to feedback from public opinion when public opinion wants a crackdown on one bank robberies there is one and when in fact bail goes up sometimes when public opinion is is is arrest. And it's important then the public opinion that there be a constant cycling of from the from the administrative action to public response to alterations in administrative action possibly to new legislation in this. This depends of course on a not only a free flow of information in the media but also an interest on the part of the public. And you know there's another aspect of this too. There's a great deal of discussion about crime but I think we have to go deeper than that. Of course everyone would

like to prevent crime you know I am against crime myself but I don't think the inquiry should stop there. There's one thing that I'm certain about and that is law enforcement will never be successful unless there's a mutual respect between law enforcement offices and in the community at large. I speak personally for myself as a black man growing up in this city among black people there is a great deal of disrespect for law enforcement officers because of the belief that justice if you will isn't meted out equally for black people as opposed to white people. And when you get a situation like this you can hire a thousand policemen per man. It just won't make any difference. The thing is if there isn't that respect between the law enforcement agency and the community and the community that they that they are serving you're going to have a difficult problem. And I think some ways must be found to bring the community and the police or the police and

authorities closer together or at least a type of mutual respect whereby. If in fact criminals do exist we can we can weed the criminals out. But you aren't going to do that as long as you have the suspicion and disrespect that exists in the black community and I think something has to be done about that. And until something is done about that we want to have this tension in the city. Well what something would the remedy would have to consult. Because what it not what did you think what do you think the causes are why I'm not a sociologist and I don't I don't pretend to have all of the answers to the cause of crime. I think perhaps some people and I'm not talking about the cause of crime I'm talking about the cause for this disrespect between the black community and the police. Well I think this is this disco's back a long ways. I think without question black people do not feel I think it is true but they are not dealt with fairly in the judicial

process. They don't they feel that at least I feel that black people are treated quite differently in the judicial process. And when you get when you get a feeling of unfairness this breeds suspicion and it makes it very difficult for law enforcement agencies or law enforcement offices to work with the community because a law or an enforcement of a ball will be only as successful as the people in the community are in except in that law. And if there's suspicion involved there will be an acceptance there. I just like to develop a little bit of what Willie said there I think. I don't know whether he would agree with me as to this point or not but I think you cannot view the criminal law in isolation from civil law as a whole. If you define crime as anti-social behavior to which society has attached a penalty to its. To a violation

of a prohibition against this type of behavior then I think you have to look to the society as a whole. What it takes as its goals and its distribution of its resources. If you look at it in the criminal law field at least since Gideon versus Wainwright a case in 1983 which made it mandatory that every fifth person arraigned for a felony. Having a lawyer you can see the great development of the rights of persons brought before courts in the civil area. You do not see such a court appointed attorneys it's rather rare and I think you can look at the law and find that it's made by lawyers and lawyers appear for people who pay them so that you have a inequity really I think in the civil law because there are no lawyers representing certain interests especially the interests of the poor. And I think perhaps the attitude of the poor people towards law is reflected and their attitude towards the criminal law. Perhaps you may find a cause in the fact that the civil law treats

women equitably. Mr. Prantera we have just half a minute. I think this is code. I just want to say that somebody said that the just society is one so designed that you would be equally satisfied no matter which slot you were dropped in until victims of all sorts of crimes are equally protected and until suspects of all sorts of crimes are equally protected. I don't think they have the kind of respect that we need to to have a fair balance between individual rights and the common good. Thank you very much. Gentleman and lady Our thanks to Mr. Barrett Portman's Society of Jesus from Texas to Mr. Willie cook from the District of Columbia. Mrs. Barbara cone from New Jersey and Mr. John of New York you have attended the weekly discussion program the Georgetown University radio forum broadcaster which was transcribed in the Raymond Rice studio on the campus of historic Georgetown University in Washington D.C. next week you will hear discussed the elder generation and juvenile crime. A panel at that time will consist of Miss Patricia Rico dean of women Georgetown University

Professor George R. Houston Jr. assistant professor of accounting Georgetown University School of Business Administration and Dr. Eugene Snyder associate professor of business law and Dean designate of the Georgetown University's School of Business Administration. We welcome your comments and suggestions. Please address them to the station to which you are listening. This program has been presented in the interest of public education by Georgetown University. Your moderator. WALLACE fanning this program was distributed by the national educational radio network.