The message in Chief Justice Warren E. Burger's aggressive law-and-order speech delivered here Sunday, was clear to lawyers on both sides of the issue: Lower-court judges around the country should start cutting back on the rights of criminals and criminal defendants.
Legal commentators believe the message will have an immediate impact, but they disagreed sharply on the merits of that impact.
John Shattuck, a Washington lobbyist for the American Civil Liberties Union, called much of the speech "disturbing," and other civil libertarians attacked Burger's proposals as serious abridgments of rights previously guaranteed by the Constitution and the Supreme Court.
On the other side, David L. Armstrong, president-elect of the National District Attorneys Association, praised the speech as a "very important statement from the highest judge of this country recognizing abuses in the criminal justice system."
Burger, in his state of the judiciary address to the American Bar Association, said that the American justice system suffers from too many protections for the accused and too few protections for the victims and potential victims of crime. While he called for better prisons and rehabilitative programs, Burger also recommended restricting the rights of convicted criminals to seek judicial review of their convictions and providing more flexibility to judges to lock up defendants, before trial, if they appear dangerous to the community. That concept is known as "preventive detention."
The chief justice did not question the standard appeal that follows a conviction. But after exhausting that appeal, thousands of prisoners file repeated "habeas corpus" petitions to get out of jail, citing errors in their trials, and they file numerous suits against wardens and parole boards and other attacks on their imprisonment. These were the focus of Burger's criticism. He said the courts should not consider such issues unless they involve "miscarriages of Justice."
The supporters and critics of Burger were united in their interpretation of the impact of such a speech. "It sends important messages to everybody," said Howard Eisenberg, executive director of the National Legal Aid and Defenders Association. "That's why he gives these speeches. Judges take them seriously and the judges correctly anticipate the significant shift" in protection of defendents' rights.
Armstrong, district attorney of Louisville, Ky., agreed, noting that speeches by Burger's predecessor, Earl Warren, prompted judges to begin providing increased protection for defendants before the U.S. Supreme Court actually began to require them.
Armstrong fully endorsed Burger's proposals. The constant prison appeals have created a backlog in the courts that slows the trial process for others, he said, and the problem of defendants committing crimes while out on bail is epidemic.
These two factors have created a public perception that "the system is ineffective . . . designed only to protect those accused of the crime," Armstrong said.
"As a result we now see people taking the law into their own hands," Armstrong said, citing as did Burger, a dramatic increase in handgun purchases by homeowners.
But Eisenberg questioned how even miscarriages of justice could be corrected if the courts decline to review the prison fillings. "And one person's technical error is another person's miscarriage of justice," he added.
Liberals were also sharply critical of Burger's preventive detention proposal, which was heartedly debated in the 1960s. Locking people up because of a perception of "future dangerousness" would "undermine the presumption of innocence on which our system has been built," Shattuck said.
Shattuck and Harvard law professor Alan Dershowitz questioned the propriety of the chief justice commenting on issues bound to come before his court.
"I think it's highly inappropriate for the chief justice to become the general in the war against crime," said Dershowitz, a frequent critic of Berger on behalf of liberal causes. "These proposals are likely to come before his court. He shouldn't be taking part in that debate except with his robes on. If he wants to campaign on issues of law and order he should take off his robes and campaign for state attorney general or police chief."
Criticism of Burger for discussing such issues in public, however, came from those who disagreed with what he said. Those who agreed said they saw nothing improper.
Leonard Janofsky, immediate past president of the ABA, said the speech was "perfectly" appropriate. The chief justice wears two hats. He is the presiding officer of the highest court, but he is also the country's chief legal officer, vitally interested in the administration of justice."
Burger is not the only justice to deliver such substantive speeches on the law. Justices William Brennan, William Rehnquist and Potter Stewart have in the past few years publicly addressed issues that were before the court.