Chief Justice Warren E. Burger today attacked the nation's justice system, its schools and prisons for helping to make Americans "hostages" to crime.
"Like it or not," he said in his annual state of the judiciary address to the American Bar Association, "today we are approaching the status of an impotent society -- whose capability of maintaining elementary security on the streets, in schools and in the homes of our people is in doubt."
Burger said the legal system now provides too much protection for the accused and too little for the victims of crime. He called for new restrictions on access to the courts for convicted criminals trying to get out of jail and greater leeway for judges to lock up potentially dangerous defendants who have not been convicted.
He blamed the schools for part of the crime problem because they have "virtually eliminated . . . any effort to teach values of integrity, truth, personal accountability, respect for others' rights."
And he called for "a broad scale" physical rehabilitation of prisons to provide "a decent setting" for education, training and counseling programs.
Though Burger has touched on all these themes before, the speech was his broadest and most vehement on the subject of crime. It sounded at times, as many commended, like a conservative Republican stump speech worthy of a man running for office. Burger has been working on the speech for seven months and is believed to consider it the start of a major push for changes in the system, beyond what he can do in Supreme Court Opinions.
Burger described the country as beset by the problems of "inflation, unemployment, energy, and overblown government, a breakdown of our educational system, a weakening of family ties and a vast increase in crime."
He questioned whether a society was "redeemed if it provides massive safeguards for accused persons including pretrial freedom for most crimes, defense lawyers at public expense, trials, retrials and more and more appeals -- almost without end -- and yet fails to provide elementary protection of its decent, law-abiding citizens."
The rate of "day-by-day terrorism in almost any large city," he said, "exceeds the casualties of all the reported international terrorists in any given year. . . . Why do we show such indignation over alien terrorists and such tolerance for the domestic variety?"
". . . . We must not be misled by cliches and slogans that if we but abolish poverty, crime will also disappear," he said. "A far greater factor is the deterrent effect of swift and certain consequences: swift arrest, prompt trial, certain penalty and -- at some point, finality of judgement."
Specifically, Burger challenged the process by which convicted criminals spend years filing habeas corpus petitions, suing prison wardens and parole boards and trying to get new trials by citing minor errors in the first trial or arrest. Once a person has been convicted and exhausted the first round of appeals, Burger said, all later judicial review should be confined to past "miscarriages of justice."
"Our search for justice must not be twisted into a search for technical errors to guilt or innocence," he said. ". . . . A true miscarriage of justice whether 20, 30 or 40 years old, should always be open to judicial review, but the judicial process becomes a mockery, a mockery of justice, if it is forever open to appeals and retials for errors in the arrest, the search or the trial."
He also criticized the current bail laws which forbid judges from considering a defendant's potential danger to society when setting bail. "The crucial element of future deangerousness, based on a combination of the particular crime, the past record and the evidence before the court," should be restored to deter the "startling amount of crime committed by persons on release awaiting trial."
Burger also repeated recommendations for improving the prisons, by making vocational and educational programs mandatory and giving good-time credit when a prisoner makes educational progress.
But he suggested that prisoners who spend all their time with the jailhouse lawyer thinking up ways of challenging their imprisonment will never accept rehabilitation while increrated.