The Law: Equality v. Deterrence

What is the purpose of U.S. criminal justice: Equal treatment for all who are accused or deterrence of crime? Such is the issue now roiling the American Law Institute as it force-drafts a model code of prearraignment procedure to help police live with Supreme Court decisions. Last week two eminent lawyers aired the debate in a fascinating exchange of letters published in the Washington Evening Star.

Writing to Attorney General Nicholas Katzenbach, Chief Judge David Bazelon of the U.S. Court of Appeals in Washington sharply questioned the effect on the “poor Negro citizen” of such draft proposals as 20-minute street detention, dragnet arrests to sift suspects, station-house questioning up to 24 hours after arrest, and lack of free counsel for indigents. Protested Bazelon: “I cannot understand why the crimes of the poor are so much more damaging to society as to warrant the current hue and cry—reflected in the proposed code —for enlarging police powers, which primarily are directed against those crimes.”

In blunt reply, Katzenbach said: “It would be ridiculous to state that the overriding purpose of any criminal investigation is to insure equal treatment. Obviously, criminal investigation is designed to discover those guilty of crime.” To be sure, he said, the great purpose of appellate court decisions reforming police procedures has been to cure glaring inequities. “But as the cases have presented more and more difficult questions of fairness and propriety, I believe the judges have left the public behind.”

Whatever the law should be, said Katzenbach, it is “particularly irrelevant” to fret because police questioning may bother the poor the most—”the simple fact is that poverty is often a breeding ground for criminal conduct, and that inevitably any code of procedure is likely to affect more poor people than rich people.” Indeed, argued Katzenbach, more effective police procedure would benefit the poor, “for it is they who live in the high-crime areas.” In short, criminal justice can go only so far in seeking social equality —a goal that courts alone cannot reach —and then it is time for the “deadly serious” responsibility of controlling crime. Concluded Katzenbach: “We are not so civilized that we can afford to abandon deterrence as a goal of our criminal law.”