Public safety v. individual civil liberties: the prosecutor's stand.

• Author: Inbau, Fred E.
• Position: Originally published in Journal of Criminal Law and Criminology, vol. 53, p. 85, 1962 - Reprint

Today we are faced with a serious international threat to our national existence. This we all know and recognize; and we are taking reasonable and appropriate measures to guard against any Communist attack upon this country. We are also trying to hold back the threat to the security of the free world generally. What many of us don't realize, however, is that we are also faced with another serious threat to our public safety and security from another kind of enemy right within our own borders--unorganized as well as organized criminals. Just yesterday the F.B.I. released a report which reveals that although the population in this country has increased 18% since 1950, the crime rate has increased 98%. Murder, rape, or assault to kill occurs every 3 minutes. A burglary is perpetrated every 39 seconds. Robberies and burglaries in 1960 were 18% higher than in 1959.

We are not only neglecting to take adequate measures against the criminal element; we are actually facilitating their activities in the form of what I wish to refer to as "turn 'em loose" court decisions and legislations. To be sure, such decisions and legislation are not avowedly for the purpose of lending aid and comfort to the criminal element, but the effect is the same. It is all being done in the name of "individual civil liberties."

1. DANGER SIGNS IN SUPREME COURT DECISIONS

   What particularly disturbs me, and I am sure many of you, is the dangerous attitude that has been assumed by the United States Supreme Court. The Court has taken it upon itself, without constitutional authorization, to police the police. It has also functioned at times as a super-legislative body. Moreover, even as regards its constitutionally authorized judicial function, the Court has gone far beyond all reasonable bounds in imposing its own divided concepts of due process upon the states. It has also gone much too far as regards its concepts of admissibility of evidence in criminal prosecutions in the federal courts.

   These are harsh words, I know. But the time has come for some plain speaking with respect to what has been going on in the field of criminal law.

   I propose to demonstrate to you the validity of every statement I have just made. Before doing so, may I make it clear at the outset that I am not opposed to the Bill of Rights. I believe in the Bill of Rights, which is so often shaken in the face of some of us by flag-waving civil libertarians when these critical issues of criminal law administration are under discussion and debate. I believe in due process, equal protection, free speech, and all else. But I also believe that we should not be unmindful of what is contained in the Preamble to the Constitution itself. The Preamble states that the purpose of the Constitution was "to establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the Blessings of Liberty to ourselves and our Posterity."

   1. THE EXCLUSIONARY RULE

      To illustrate what I have in mind, let me start off with a recent United States Supreme Court decision, Mapp v. Ohio,(1) which imposed the exclusionary rule upon all the states as a requirement of due process, whereas previously it Was only a rule of evidence applicable in about half the states and in the federal courts also.

      For many years the United States Supreme Court held that state courts and state legislatures were at full liberty to accept or reject the exclusionary rule with respect to evidence obtained as a result of unreasonable search and seizure. The Court said so as recently as 1949 in Wolf v. Colorado.(2) In that case the Court held that although the Fourth Amendment unreasonable search and seizure provision was applicable to the states through the Fourteenth Amendment, the admissibility of evidence thus seized was a matter for each state to decide. Now, this June, the Court holds that if a state admits such evidence it is a violation of due...