IT WAS PROBABLY inevitable that Chief Justice Burger's speech last Sunday would reopen that old dispute between the two groups sometimes thought of as the law-'n'-order boys and the soft-on-crime gang. The prosecutors promptly lauded the chief justice's proposed anti-crime program, finding in it some of the things they have long wanted, while some civil libertarians denounced the program. All seemed to think the chief justice had sent a message to the lower courts that the time had come to cut back the rights granted to those suspected or convicted of crime.
The reaction ignores much of what he did say -- and with which almost everyone could agree. Not many of his useful proposals are going to get anywhere if the new crusade against crime for which he called gets bogged down in the rhetoric and the issues of the old, Nixonian war on crime.
Take, for example, the problems created by the vast amounts of time that elapse between arrests, trials and appellate reviews. They undermine the whole law enforcement system because there is truth in the old adage that justice delayed is justice denied. Speedy -- really speedy -- trials and reviews would do much to restore public confidence in the judicial system without impinging at all on the rights of defendants. Yet even the federal courts had great difficulty adjusting to a legislated requirement that trials occur within 60 days of indictments (not arrests), and the first appeals still drag on for months.
Changing a system that invites delay (and delay almost always works to aid defendants) is not easy and is terribly expensive. But prompt trials and immediate reviews would take much of the sting out of two subjects on which the chief justice's proposals touched off an immediate row: preventive detention and post-trial reviews.
Rather than continue the fight now over those two subjects, everyone concerned about crime would do well to focus on educating the public and the political leaders about the gains to be made by spending the money needed to speed up the court process and to reform the prison system. Until those two things happen, repressive legislation, be it preventive detention, harsher sentences or limits on post-trial reviews, is simply a Band-Aid that conceals the real problems without treating them. If there is any chance now to do something to bring the criminal justice system into the 21st century -- and the chief justice obviously believes there is -- it shouldn't be lost in battles over proposals that do not get to the heart of the matter.