A costly surrender to panic

May 02, 1994|By Robert Weisberg

THESE days, Americans seem to be driven mad by the fear of crime. Whether the public is influencing the politicians or vice-versa, a perverse consensus is developing between voters and their elected leaders that we have reached such a catastrophic crisis that we must summon the courage to take extraordinary measures.

Some call for decisions that would cross constitutional boundaries even the most conservative judges see as clear, bright lines of constitutional protection -- as in the call to legalize "sweeps" of inner-city public-housing apartments, searching all homes for weapons. Congress contemplates the death penalty for drug crimes that do not result in death -- in the face of even a Burger Supreme Court precedent that would seem to make such a law flatly unconstitutional.

The "three strikes" laws passed in some states and now before Congress push the cruel mathematics of habitual offender status at least up to the line of "cruel and unusual" punishment. And in recent polls, half of Americans responding approve a sentence of physical torture by caning for a young American accused of vandalism in Singapore.

Among politicians, at least, much of what we hear is demagogic blather -- not to be taken seriously except as a sign of the pathology of media politics and the candidates' cowardice at the thought of ever discussing these issues rationally with voters.

But to the extent that the politicians and public are sincere in their calls for these new measures, they reflect something subtler, if perhaps more dangerous, in our political life. This is a kind of historical egotism or arrogance -- a sense that our time is unique, so different from "ordinary" times that fundamental changes in our constitutional principles must be made. It is as if we take a conceited pride in our own sense of fear as having exceptional historical significance.

Though we face serious crime problems in the United States today, we are not in a "constitutional moment." For one thing, though serious crime is most certainly far higher than during the relatively peaceful '50s, the greatest increase occurred during and just after the Vietnam War. For most Americans, in fact, the risk of violent crime has been on a slight, if erratic, decline in the last decade.

Politicians and voters will say that crime is worse than ever and getting worse every day. That is false, but many Americans, projecting a variety of social insecurities onto the crime issue, seem captivated by the belief that they live in an era of unprecedented criminal epidemic.

Many Americans now seem in love with the thought of being justified in their state of outrage. Research has shown that a frightening portion of Americans, when asked in the abstract, are ignorant of or even quite hostile to the provisions of the Bill of Rights dealing with criminal justice. Others will now say that these provisions are, at best, abstract principles that must give way to the unique exigencies of the time.

Some years ago, Yale Law School professor Bruce A. Ackerman coined the term "constitutional moment" to describe those phases in U.S. history where social and political forces converged to require fundamental changes in our governmental system and principles.

One such "moment" was the Civil War and its aftermath. The end of legal slavery called for major constitutional amendments and federal civil-rights legislation that sharply altered the demands that the national government could make on the states to ensure legal equality.

A second "moment" occurred 70 years later, when the traditional relationship between Congress and the state seemed impotent to deal with the social consequences of a complex national economy never contemplated by the Framers. Under the New Deal, a political consensus developed for federal legislation drastically expanding Congress' power and for a new Supreme Court jurisprudence fitting these laws into a coherent constitutional frame.

One reason for constitutional restraints is that, even if they seem like pedantic inconveniences in particular situations, our judicial system cannot easily limit breaches of the constitutional rules to specific cases. For example, if the Supreme Court were to permit re-imposing the death penalty on the most vicious class of drug kingpins, that decision, however limited at the time, could become the precedential rationale for approving the death penalty for a host of non-homicide crimes that we long ago realized were devices for the most flagrantly arbitrary and racist penalties.

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