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Chapter One
WHEN NATIONAL POLITICS
MET CRIME
Barry Goldwater started it. The 1964 Republican presidential candidate was the first to put crime on the national agenda in response to soaring rates of violence in the 1960s. It probably was inevitable that contenders for the White House would transform what had long been regarded as primarily a local concern into a national issue. After all, political leaders respond to the public's worries, and crime was headed to the top of the list. So the conservative senator from Arizona vowed during his acceptance speech at the Republican national convention to make "enforcing law and order" a campaign issue. He railed against "violence in the streets" and said he would "do all that I can to see that women can go out on the streets of the country without being scared stiff."
Goldwater failed miserably at the ballot box against incumbent Lyndon Baines Johnson, but LBJ and his advisers did not fail to notice the resonance of the Arizonan's stinging demands for law and order. "It was understood," said Gerald Caplan, the U.S. Justice Department's crime-research chief in the early 1970s, "that the effect of Senator Goldwater's lopsided defeat was not to bury crime as an issue, but merely to transfer the official responsibility to the Democratic administration."
The essential message from either major political party would be the same: a larger role for the federal government in local crime issues. Johnson's response to Goldwater's anticrime pronouncements was to appoint a blue-ribbon commission on law enforcement and the administration of justice. At the time of the panel's creation, agencies around the nation that dealt with crime and criminals—police, courts, probation officers, jails, and prisons—for the most part operated independently, with little coordination or overall crime-fighting strategy. "Practically no data on the criminal justice system existed," said Henry S. Ruth, Jr., deputy staff director of the LBJ panel. "Not much police data existed. Court data were a mess." The last national panel to examine crime had been the 1931 Wickersham Commission, a Herbert Hoover-era project whose calls for reform went mostly unheeded.
On July 23, 1965, LBJ's 19 commissioners, later joined by 63 staff members and 175 consultants, drew up the first national blueprint to fight crime in more than three decades. The president wanted his commission to "deepen our understanding of the causes of crime and of how society should respond...." The eventual study was pathbreaking because it would summarize the nation's accumulated knowledge about crime and justice—along with its shortcomings—in one volume, "The Challenge of Crime in a Free Society," that would define an issue that occupied the country for the next 30 years and beyond.
Johnson hoped that a bipartisan commission would provide the impetus for a coordinated national attack on crime. As it evolved, however, the panel's work was flawed by behind-the-scenes power politics in Washington, foretelling the course of erratic anticrime policymaking for decades to come.
In the case of the Johnson crime commission, a key obstacle was J. Edgar Hoover. Having spent four decades building the FBI's image as the nation's premier law enforcement agency, Hoover had little interest in a new commission's taking a prominent role in crime-fighting. The FBI's actual jurisdiction covered a narrow sliver of offenses, not many of them common street crimes, but the so-called G-men had become adept at handling many prominent kidnappings and bank robberies. For 40 years, Hoover was the nation's top crime solver—and he wanted to keep it that way.
Hoover maintained a strong public association with the ups and downs of local violence by issuing the Uniform Crime Reports every year, thus giving the impression that he was somehow the nation's top cop. He took no responsibility for the crime rate, of course, but Hoover's annual pronouncements of gloom contributed to the incorrect perception that the FBI was the main agency responsible for fighting violence on the street.
The White House was forced to deal with Hoover, not only because of his immense power over federal cases and his agency's secret files on Washington power brokers, but also because the commission would have to rely on the FBI for data and perhaps staff assistance.
Hoover would continue to cast a shadow over the commission's work. Before Johnson appointed his panel, seeds for a beefed-up federal involvement in local crime fighting had been planted by another prominent Democrat as well. In 1964, Attorney General Robert Kennedy—who had taken office during his brother's presidency but continued under LBJ—created an Office of Criminal Justice within his Justice Department that would study crime problems and potential solutions. Kennedy's deputy, Nicholas Katzenbach, tapped Harvard law professor James Vorenberg to head the new unit. Vorenberg tried but failed to establish a relationship with Hoover, whose backstage battles with the Kennedy family were legion. "I called every day, but was told he was busy," Vorenberg said. When Vorenberg eventually invoked Kennedy's name, Hoover passed word through an aide that he would grant Vorenberg an audience "when the civil-rights problems were over," a reference to the widespread and growing strife in the South over integrating public facilities. Correctly foreseeing that the FBI would be embroiled in the civil rights furor for many years, Vorenberg gave up on seeing Hoover.
The Vorenberg-Hoover rift did not bode well when the crime commission was created, and Vorenberg became the panel's staff director. LBJ's first impulse was to try forging a bipartisan consensus on crime. "He wanted to bring everyone together—to 'reason together' was the phrase of the times," said historian Isidore Silver.
In the zeal to make the study a bipartisan one, the Johnson administration wanted a prominent Republican to help lead it. A logical choice was onetime prosecutor, former New York governor, and 1948 presidential candidate Thomas Dewey. "We wanted someone with a crimebuster reputation," said Katzenbach, who was given the task of recruiting Dewey.
Once again the problem was J. Edgar Hoover. Johnson hoped the FBI director would talk Dewey into taking the job. Katzenbach made a pitch to Hoover, who was noncommittal, and then visited Dewey. The Republican elder statesman seemed interested at first; Katzenbach recalled a "warm and cordial meeting." But in a second session in which LBJ's men hoped to seal the deal, "not only was he not interested, he was hostile to the idea," said Vorenberg, who also attended. Because Dewey's newfound skepticism reflected Hoover's, Vorenberg concluded that Hoover must have advised Dewey against taking the job. The attempt to strike a bipartisan note in crime fighting had failed. (Vorenberg said the FBI chief considered the commission a "nuisance" that "didn't understand anything about law enforcement.")
A reluctant Katzenbach eventually accepted the chairmanship himself. Filling out the panel was a largely establishment group dominated by white male lawyers, with a smattering of persons with other backgrounds represented, including civil rights leader Whitney Young and two women, Genevieve Blatt, of the Pennsylvania state pardon board, and Julia Stuart, president of the League of Women Voters. Katzenbach, who worked with Johnson aide Joseph Califano to find members from varying geographical areas, defended the abundance of lawyers as inevitable, to avoid teaching basic legal principles to panel members.
Still, many commissioners were ignorant of criminal justice issues. Members like Yale University President Kingman Brewster, New York City Mayor Robert Wagner, and Los Angeles newspaper publisher Otis Chandler had little relevant experience. Those actually working in the justice system belonged to what Silver termed the "law enforcement establishment" and were unlikely to support bold changes. They included Boston prosecutor Garrett Byrne, San Francisco Police Chief Thomas Cahill, and California Attorney General Thomas Lynch.
With a dearth of knowledge on its subject, the crime commission largely depended on its staff for the hard task of research. Vorenberg recruited a cadre of aides (most in their 30s or younger), but the full crew was not in place until December 1965, six months after the panel had been appointed and only a year before its report was due. That was not enough time to study a complex social and legal problem that had not been scrutinized in the same depth for decades.
The panel and its staff divided into task forces to consider major subjects, including police, courts, prisons, organized crime, juvenile delinquency, and technology. Some field studies were extensive. The police unit, for example, questioned 2,200 departments nationwide looking for promising new practices. Similar surveys were conducted among courts, delinquency-prevention agencies, and other areas of the justice process.
Commission researchers "rode in police cars, sat in courtrooms, visited prisons, walked the streets of city slums," said the commission's final report. They studied all the literature and talked to all the experts they could. "Consultants and advisers from every relevant discipline and agency"—more than 400 in all—were called in to help, noted Deputy Director Henry Ruth.
The commission may have weakened the battle against crime by attempting too much. One big diversion was debates over the legal rights of suspects, prompted by Supreme Court rulings under Chief Justice Earl Warren to overhaul criminal procedure, like the 1966 Miranda decision on suspects' right to legal counsel. Traditionalists argued that the high court was tilting the justice process too far in the direction of defendants and hamstringing police officers at a time when they should become more aggressive. The commission finally avoided taking a stand on the wisdom of the high court decisions; seven panel members issued what amounted to a dissent, calling for a constitutional amendment to overturn the court rulings and "strengthen law enforcement."
The core study was ambitious enough. It was divided into seven categories: preventing crime, attempting to rehabilitate offenders, eliminating unfairness in the justice system, training police and other personnel better, expanding research on crime, spending more money on the justice apparatus, and getting more citizens, businesses, and social service agencies involved in anticrime work. What Deputy Staff Director Henry Ruth estimated at more than two and one-half million words of material had to be absorbed in 18 months, with the full panel meeting only seven times for two or three days each.
The final report included more than 200 recommendations—explained over more than 300 pages—and it covered not only the central issues surrounding the causes and spread of street crime but everything from public drunkenness to the tenure of local judges.
Almost lost in the morass of material were some of the key issues. One central theme that political leaders so conspicuously failed to address in later years was the call to "keep delinquents and youthful offenders from settling into lives of crime." Another key recommendation that gained only perfunctory recognition until many years later was the idea of dealing with offenders in community-based programs rather than locking them up. Still, the panel contributed to the lack of attention given to the issue by devoting only a small part of its report to the "corrections" system, even while complaining about the subject's "invisibility."
The commission's attempt to cover the waterfront was a conscious strategy. Echoing the catch phrase of the 1960s debate over national defense priorities, historian Silver said Johnson wanted both "guns and butter" out of the crime commission at the same time. That helped explain the scattershot approach. "Johnson was running for cover—he wanted no enemies on the right," said Silver. "So he decided to get out in front, partly to help his poverty program." The idea was that if the panel offered suggestions that would appeal to many points on the political spectrum, conservatives who rallied around a strong anticrime agenda might pull their punches on criticizing LBJ's liberal inner-city repair proposals.
Still, the commission's lengthy discussion of social problems as contributors to the crime plague—reflecting the Johnson-era Great Society emphasis—gave it a predominantly liberal cast. That characterization was correct, at least from the vantage point of those who emphasize criminal justice remedies like aggressive arrests and long prison sentences rather than social solutions like education, job training, and recreation.
The group started with a conservative interpretation of its mandate, said staffer Lloyd Ohlin, later a distinguished criminologist, on the ground that "radical attempts" to deal with crime would be "unlikely to gain wide acceptance." Ohlin said a "progressive liberalization" occurred "from the necessity to confront the facts of crime and the relative ineffectiveness of the criminal justice system."
In essence, a staff more liberal than its commissioners eventually persuaded the panel to make recommendations that Ohlin says "went far beyond incremental reform" of the justice system "and instead addressed basic inadequacies in the allocation of the resources of American society."
In the end, the commission watered down many recommendations and shied away from anything that would resemble a highly aggressive attack on street crime that conservatives might welcome. The result was an equivocating document full of "pious hopes," said Silver. One example was the debate over how to discipline police officers whose strong-arm tactics in many cities were brutalizing suspects and increasing public mistrust as much as they were cracking down on criminals. Staffers favored strong civilian complaint review boards, but commissioners like San Francisco Police Chief Cahill disagreed. So the group failed to take a bold stand.
Even if the crime commission did not succeed in focusing on high-priority issues, it made several landmark contributions that transcended ideology.
Perhaps most prominent was its detailed dissection of the criminal-justice system that would serve as a framework for reforms. At the time, few Americans appreciated how criminal cases proceeded, from arrest to a final sanction. The commission produced a flow chart that traced how a large number of crimes reported to the police were winnowed by the legal process. The chart, often compared to a funnel, showed graphically how only a small fraction of crimes eventually resulted in findings of guilt, and later in prison terms. It helped to educate the nation about how criminal procedure actually operated and to show pressure points at which the system could operate more effectively to control crime.
Another notable accomplishment was the commission's focus on the wildly varying quality of American law enforcement. Although it was widely known that many individual police officers were ignorant, brutal, untrained, or some combination, the crime commission laid out the problem vividly. The report led to decades of efforts to improve police officers' education and draw up standards of accreditation for police forces. The report was circulated so widely that Katzenbach said he "got a tremendous kick when a small town police chief" praised the "bible" he had helped produce.
The commission also focused attention on victims of crime by helping to start a massive federal survey to determine how many Americans had been victimized in the previous year. The study established that only a small fraction of crime besides homicide actually is reported to law enforcement agencies. The survey evolved in an unorthodox way. In 1963, the National Aeronautics and Space Administration (NASA) started a project on "social indicators." One participant was Albert Biderman, a sociologist at the private Bureau of Social Research in Washington, who had noticed for many years a perfunctory mention of crime victims by J. Edgar Hoover in the FBI's annual compilation of reported crimes.
Biderman viewed the Hoover reference as a "phony ploy" because the FBI compilation did not reflect the true extent of crime victimization in America? All the FBI did was to publish data supplied by thousands of local police agencies. Some of the reports at best were sloppy and at worst were manipulated by politicians or police chiefs who wanted to hide crime increases. Many victims did not call the police, because they feared retaliation by the assailant or lacked confidence that the authorities would or could do anything.
As part of the NASA project, Biderman wrote a paper on the inadequacy of the FBI report and suggested that the Census Bureau ask a representative sample of Americans if they had been victimized by crime in the previous year, thus taking into account the many crimes that had gone unreported. Biderman passed on the suggestion to staffer Lloyd Ohlin at the crime commission, which endorsed it.
(The Richard Nixon team's fear of losing the 1972 election prompted both the Watergate scandal and the crime survey. In the proposal's early years, resistance from the FBI and elsewhere was so sharp that Biderman felt "trampled by the bureaucracy." It was saved during a key round of budget cuts when Nixon's advisers expressed fear that the FBI might report in 1972 that crime was rising. Knowing that the victimization survey was in the works, the White House wanted to promise that the new report would give a more accurate picture of crime trends. As it happened, a drop in reported property crimes brought the FBI "index" of serious crime down in 1972, and the first victimization survey was not published until after the election.)
The crime commission also focused attention on the primitive state of law enforcement technology. "It was in a quill pen era," said technology director Alfred Blumstein. It was obvious that technological leaps were necessary for the justice process to operate more like a well-coordinated system, but staff director Vorenberg and his colleagues "were concerned that we would highlight sexy-looking gadgets that would attract attention away from their policy concerns," Blumstein said. It was a legitimate worry that later would play a large part in derailing the huge federal anticrime-aid program of the 1970s. As a result, the commission did not stress technical issues, a wise choice considering the flak taken by federal anticrime officials later when money was handed out for police helicopters and tanks (delicately called "armored personnel carriers").
But the report had a strong impact in a few key areas. Consider the 911 phone system. Blumstein knew of the 999 emergency number used in Great Britain and wanted the commission to push for a similar approach in the United States. First, he had to fend off a protest from the Chesapeake and Potomac Telephone Company, which served the Washington area and had gotten wind of the commission's plan. A phone company official feared that if a 911 system were created, everyone else—from the FBI to Sears Roebuck—would want their own single national number.
The company relented after it realized that it could charge the government for its services. Blumstein was angry at the turnaround, telling the Chesapeake and Potomac executive, "You son of a bitch—after the big fight you put up, you're adopting our recommendation to benefit your organization." Eventually, 911 became a standard feature of reporting crimes.
Although a strong believer in his mission to improve technology, Blumstein did heed Vorenberg's warning and restrained some colleagues, including one who studied whether police officers could shoot suspects with a sticky substance that would immobilize them and avoid the need for bullets. That and a few other ideas deemed too unorthodox failed to make the final report, although in later years, other entrepreneurs came up with items like Mace, pepper spray, and bean bags to accomplish the same goal.
Once the commission made its final decisions, it was time to get its message out. But the panel had become involved in so many controversial issues tangential to street crime, most prominently federal policy on wiretapping, that delivery of its final volume in 1967 was endangered by a side controversy. When Vorenberg advised Johnson aide Joseph Califano that the report was ready, Califano stunned the staff director by declaring that the president would not accept it. Califano explained that Johnson had heard that the panel was recommending that wiretapping be expanded. LBJ was adamantly opposed to such an idea.
The proposal had been toned down to avoid taking a firm position, Vorenberg reported. But Califano balked, saying that LBJ believed the rumor he had heard and wanted to avoid having anything to do with the study.
Vorenberg's response was "I have a mandate to deliver the report by the end of the day today. Either I will bring it over properly, or hold a press conference and throw it over the White House fence." When Califano said, "You wouldn't do that," Vorenberg responded, "Joe, you know I would." A few minutes later, Califano called and relented. (Vorenberg later was told that Johnson had been misinformed by a commission member about the wiretapping issue and was "quite pleased" with the report.)
The commission didn't simply publish its report and go home. Rather, it "made an enormous implementation effort," said Deputy Director Ruth. Staff members prepared the first draft of legislation that, as passed by Congress in the landmark anticrime law of 1968, required each state to set up a justice-system planning agency. Letters were sent to every state governor explaining the plan.
It didn't work like clockwork. The FBI, which maintained current addresses for local police departments, ostensibly agreed to help the commission send its report to the agencies. But the bureau reported at the 11th hour that it was unable to find the address labels, a failure that commission staffers were convinced was a last-ditch Hoover attempt to thumb his nose at the panel.
The report did get wide circulation, and it was cited for years to come. Still, its attempt to cover every subject with dozens of recommendations that were difficult for the public and policymakers to absorb quickly limited its effectiveness. "We probably should have prioritized," chairman Katzenbach lamented years later. Isidore Silver declared in the paperback edition of the panel's report that it "disappoints the impatient believer in miraculous nostrums by offering little more than complex and confused data about the 'causes' of crime [and] not much more...."
Some of the blame for the commission's muted impact can be traced to an important 1966 personnel shift. Midway through the panel's deliberations, its chairman, Nicholas Katzenbach, who had succeeded Robert Kennedy as attorney general, was persuaded by Johnson to take the number two job at the State Department. Insiders said Katzenbach's absence as a driving force significantly hampered the effort to publicize and implement the commission's finding. It was an early example of the lack of consistent leadership that would plague the federal anticrime program for years.
Excerpted from CRIME & POLITICS by Ted Gest. Copyright © 2001 by Ted Gest. Excerpted by permission. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
