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The Organized Crime Act (S Notre Dame Law School NDLScholarship Journal Articles Publications 1970 The Organized Crime Act (S. 30) or Its Critics: Which Threatens Civil Liberties John L. McClellan G. Robert Blakey Notre Dame Law School Follow this and additional works at: https://scholarship.law.nd.edu/law_faculty_scholarship Part of the Criminal Law Commons Recommended Citation John L. McClellan & G. R. Blakey, The Organized Crime Act (S. 30) or Its Critics: Which Threatens Civil Liberties, 46 Notre Dame L. 55 (1970-1971). Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/171 This Article is brought to you for free and open access by the Publications at NDLScholarship. It has been accepted for inclusion in Journal Articles by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. THE ORGANIZED CRIME ACT (S. 30) OR ITS CRITICS: WHICH THREATENS CIVIL LIBERTIES? Senator John L. McClellan* A. Introduction On January 23, 1970, the Senate passed by the overwhelming vote of 73 to 1,S. 30, the Organized Crime Control Act of 1969.' During the debate in the Senate, S.30 was subjected to indiscriminate charges that it would, in the words of the American Civil Liberties Union, "make drastic incursions on civil liberties" and that it ran "counter to the letter and spirit of the Constitution."' Certain newspaper commentators and a prominent mayor have echoed those charges,' and recently a report critical of several key titles of S. 30 was published by the Committee on Federal Legislation of the Association of the Bar of the City of New York.' The committee, like the Civil Liberties Union, based its criticism of S.30 largely on supposed principles of civil liberties.5 The purpose of this article is to set the record straight concerning the implications of S.30, as it passed the Senate, for fundamental civil liberties and our treasured Bill of Rights. EDrOR's NOTE: On September 23rd, the House Judiciary Committee reported an amended version of S. 30 to the House. As reported, S. 30 retained the major shape in which it passed the Senate, discussed here by Senator McClellan, although a number of limiting amendments were made to the bill. Favorable action is expected on the bill and it should become law largely in the form discussed by Senator McClellan before Congress adjourns for the election day recess. The Notre Dame Lawyer hopes to be able to publish a discussion of the Houise bill by Congressman Poff of Virginia, the leading advocate of S. 30 in the House, in a forth- coming issue. * United States Senator from Arkansas. The assistance of G. Robert Blakey and Russell M. Coombs of the Staff of the Subcommittee on Criminal Laws and Procedures in the collec- tion of these materials, drawn in part from an address on the Senate floor, is hereby acknowl- edged. See 116 CONG. RC. S8642 (daily ed. June 9, 1970). 1 116 CONG. REC. S481 (daily ed. Jan. 23, 1970). The act now is pending in Subcommit- tee No. 5 of the House Judiciary Committee, which has held hearings on the measure. See, e.g., 116 CONG. Rxc. H5071 (daily ed. June 3, 1970) (remarks of Congressman Fascell inserting House testimony by the author). 2 Letter from the American Civil Liberties Union to each member of the Senate, January 20, 1970, page 1 [hereinafter cited as ACLU January 1970 letter]. The letter is reprinted at 116 CONG. REc. S422-26 (daily ed. Jan. 22, 1970). 3 See, e.g., Washington Post, Feb. 22, 1970, § D, at 4, col. 1 (excerpts from speech by New York City mayor); New York Times, Feb. 1, 1970, § E, at 12, col. 3 (column by Tom Wicker) ; Washington Post, Jan. 30, 1970, § A, at 18, col. 1 (editorial); New York Times, Feb. 3, 1970, at 42, col. 1-2 (editorial); 116 CONG. Rc. S1631 (daily ed. Feb. 10, 1970) (repub- lishing and discussing news article by C. Fritchey); id. at H6179 *(daily ed. June 29, 1970), E6393 (daily ed. July 8, 1970), and H7015 (daily ed. July 21, 1970) (remarks of Congress- man Steiger on coverage of S. 30 by Congressional Quarterly); id. at E7037 (daily ed. July 27, 1970) (remarks of Congressman Celler inserting TImE magazine article). There also have been some news articles and columns favorable to S. 30. See, e.g., 116 CONG. REc. S1649 (daily ed. Feb. 16, 1970) (republishing E. Methvin article on the fifth amendment and witness immunity). 4 ASSOCIATION OF THE B~A oF THE CITY OF NEw YORK, THE PROPOSED ORGANIZED CImBIE CONTROL ACT OF 1969 (S.30) (1970) [hereinafter cited as ABCNY]. 5 Examination of S. 30's implications for civil liberties has by no means led uniformly to its disapproval. See e.g., Hearings on S. 30 Before the Subcomm. on Criminal Laws and Procedures of the Senate Comm. on the Judiciary, 91st Cong., 1st Sess., 249 (1969) [herein- after cited as Hearings] (testimony of Milton G. Rector, Director of the National Council on Crime and Delinquency). The A.B.A., for example, thoroughly examined S. 30 and relevant NOTRE DAME LAWYER [Fall, 1970] Over 2,500 years ago the Greek slave Aesop embodied the folk wisdom of his people in a series of stories that remain relevant even today. In one of those stories, he told of the shepherd boy who repeatedly cried, "Wolf." Villagers came to his aid until they grew weary of finding that he had each time sounded a false -alarm. When at last the wolf appeared, no one responded to his call for help, and the wolf took his toll of the flock unmolested and unimpeded. There are among us today self-appointed shepherds of civil liberties who decry every attempt to strengthen the processes of law enforcement in our society. Like the shepherd boy who so long ago endangered his flock by sounding false alarms, these modem-day shepherds run the risk, too, of endangering the civil liberties of us all. No civilized society can long permit within its domain an ever- rising tide of lawlessness. Such a tide is now lashing out against our society, and there are few who do not agree that it must be stopped and turned back. Nevertheless, I am concerned that there is a danger that if this difficult task cannot be accomplished now with the enactment of prudent reforms in the administration of our system of criminal justice, other less prudent steps will be taken at a later time - to the detriment of us all. Edmund Burke aptly remarked to the House of Commons in 1780 on the question of electoral reform: Consider the wisdom of a timely reform. Early reformations are amicable arrangements with a friend in power; late reformations are terms imposed upon a conquered enemy; early reformations are made in cool blood; late reformations are made under a state of inflammation. In that state of things the people behold in government nothing that is respectable. They see the abuse, and they will see nothing else. They fall into the temper of a furious populace provoked at the disorder of a house of ill fame; they never attempt to correct or regulate; they go to work by the shortest way; they abate the nuisance, they pull down the house.6 I deeply believe that the framework of civil liberty embodied in our Bill of Rights need not be condemned or demolished to achieve needed reforms in the operation of our system of criminal justice. I am concerned, however, lest our people come to believe that effective crime control requires us to set aside the Bill of Rights.' I am troubled by the thought of what might occur if, panicked by an understandable fear of crime, they acted on that belief. It could mean the end of the kind of society that we know today. I know, too, that specious claims of "repression," "police state tactics," or "civil liberties violations," indiscriminately made and constantly repeated in reference to any and all attempts to strengthen law enforcement, can soon lead to the creation of the belief that only abrogation of the Bill of Rights will constitutional and civil liberties authorities, and concluded by approving the bill and urging its swift enactment, although it also recommended seven amendments. A.B.A. Board of Gover- nors Resolution, July 15, 1970; see A.B.A. Testimony at Hearings on S. 30 Before the .Subcomm. No. 5 of the House Comm. on the judiciary, 91st Cong., 2d Sess. (July 23, 1970) (the testimony at the hearings is not officially bound as this article goes to press) [hereinafter cited as ABA Testimony]; 116 CoNG. REC. S8968 '(daily ed. June 12, 1970) (correction of misinformation on views of A.B.A. section council); id. at 511834 (daily ed. July 21, 1970) (remarks of author inserting A.B.A. resolution and Senate staff memorandum on title I). 6 P. STANLIS, EDMUND BURKE: SELECTED WRITINGS AND SPEECHES 287 (1963). 7 See generally 116 CONG. REc. S6261 (daily ed. Apr. 27, 1970) (remarks of Senator Goldwater, with republication of CBS News Poll on citizens' attitudes on Bill of Rights). [Vol. 46:55] THE ORGANIZED CRIME CONTROL ACT protect us from criminals. It will then be only a matter of time until that belief forms the basis for action. It is thus important that those in positions of respon- sibility carefully identify the specious character of such claims, lest they con- tribute to that false and dangerous belief. It is therefore, because I love liberty more, not less, that I have advocated the enactment of S. 30 and defended it from such unjustified and specious claims.
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