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The Rufus King Collection



A Report to the American People and The American Bar on Criminal Justice in the United States: Some Myths, Some Realities, and Some Questions for the Future  

This report has been prepared by the Special Committee on Criminal Justice in a Free Society of the American Bar Association Criminal Justice Section. It has not been approved by and does not necessarily represent the official position of the American Bar Association or its Criminal Justice Section.


Criminal Justice Section

1800 M Street, NW

Washington, D.C. 20036


 November, 1988

Introduction and Summary

In 1986, at the request of the Section of Criminal Justice, the American Bar Association (ABA) provided funding for the creation of a special committee to study the impact of constitutional rights on crime and crime control in the United States. The Section of Criminal Justice was particularly concerned that a large segment of the public believed the criminal justice system did not work well because of the individual rights secured by the Fourth, Fifth, and Sixth Amendments to the United States Constitution.

Samuel Dash agreed to chair what then became the Special Committee on Criminal Justice in a Free Society. The members, in alphabetical order, are:

Samuel Dash, Professor of Law, Georgetown University Law Center, Committee Chairman

The Honorable Jerome Farris, United States Circuit Court Judge, Ninth Circuit Court of Appeals

Wayne R. LaFave, Professor of Law, University of Illinois

Norman Lefstein, Dean, Indiana University School of

Law, Chairperson ABA Section of Criminal Justice 1986-1987

James R. Neuhard, State Appellate Defender, State of


The Honorable Janet Reno, Dade County State's Attorney, Dade County, Florida

Michael Ross, Attorney, LaRossa, Mitchell & Ross, New York

The Honorable Maurice T. Turner, Jr., Chief of Police for the District of Columbia

The Honorable John K. Van De Kamp, Attorney General, State of California

The Reporter to the Committee is Steven H. Goldblatt, Professor of Law, Georgetown University Law Center

The Committee was generously assisted by the staff of the ABA Section of Criminal Justice, including its Director, Laurie Robinson, and its Staff Director, Marcia Christensen. Ms. Robinson, in particular, was a driving force for the creation of this report. John M. Greacen, the Clerk of the United States Court of Appeals for the Fourth Circuit, who was Chairperson of the Section during the second year the Committee was working on this project and Steve White, California's Chief Assistant Attorney General also attended several hearings and commented on drafts of this report. Jacob Stein, a noted Washington D.C. trial lawyer, served on the Committee during its early work.'

The Committee focused its inquiry on the crimes that alarm people most: violent crime, property crime, and drug offenses, committed most often in our large- and medium-sized urban centers and prosecuted in our state and local court systems. Information was gathered from the principal participants in the criminal justice system: police officers, prosecutors, defense attorneys, and judges. At hearings held in three representative urban and geographically dispersed locations, witnesses detailed the problems they face daily in their work.'

To supplement this testimony, the Committee reviewed most of the major criminal justice studieS3 and commissioned a professionally structured national telephone survey of over 800 defense lawyers, judges, prosecutors, and high ranking police administrators. The telephone survey, prepared by Barbara E. Smith, Ph.D., an experienced criminal justice researcher, was designed to identify what criminal justice system participants believed were the problems causing dysfunction within the system. The interviews each lasted between ten and twenty minutes. The sample "was drawn using a stratified random selection technique to obtain a representative group of small to large cities and counties." 4 The methodology of this telephone survey is described in the Appendix to this Report.

The Committee identified some specific questions which were explored at the hearings and in the telephone survey. They included:

A. Does the Supreme Court's landmark 1966 Miranda v. Arizona decision, requiring police to inform people in custody of their rights before interrogation, prevent the police from solving crime or frustrate the prosecutor's ability to obtain convictions?5

B. Do the Fourth Amendment restrictions on the authority of the police to search and seize evidence play a significant role in crime control?

C. How often do people escape punishment because of constitutional protections?

D. Is plea bargaining necessary? Is it fair to both sides?

E. Does the constitutional right to counsel create problems for the police, the prosecutor or the judge?

F. Are victims, witnesses, and jurors treated appropriately by the system?

G. Are the poor receiving adequate representation? Is representation of the poor substantially equivalent to that received by those who can afford counsel?

1. Are we spending enough reasonably to expect an effective and efficient system?

J. Does the criminal justice system control crime? Is it capable of controlling crime?

K. What can be done to improve the quality of criminal justice in the United States?

This report of the Committee's findings and recommendations is addressed to all Americans, because we all have a vital stake in this country's criminal justice system. The report is designed (i) to provide the citizen with a fuller understanding of real problems of the criminal justice system in America, and also, (ii) to offer professionals and planners ideas for future study and change.6

Before addressing specific findings, the Committee believes it is essential that the public understand certain significant and well documented facts about crime and the criminal Justice system. These facts serve to put the Committee's findings in perspective.

With the exception of the crime of murder, only a small fraction of the serious criminal acts committed in the United States ever enter the criminal justice system, for reasons totally unrelated to constitutional restrictions. The overwhelming majority of these crimes, which keep Americans in fear, are untouched by the work of police, prosecutors, judges, and prison officials.

The Committee compiled, as best it could, the available data published by the Justice Department through the middle of 1988. This compilation reveals that of the approximately 34 million serious crimes committed against persons or property in the United States in 1986, approximately 31 million never were exposed to arrest, because either they were not reported to the police or if reported, they were not solved by arrests. Further, of the crimes that result in felony arrests, roughly one half will likely result in felony prosecutions and convictions, and of those convictions, only about one half will likely result in prison sentences.7

Thus, out of 34 million victimizations occurring in America, only several hundred thousand resulted in felony convictions and were punished by imprisonment. And, despite the fact that a tiny fraction of all felonies committed will result in prison sentences being imposed, the prisons of America are crowded, operating at between 6% and 21% above capacity.8 The Committee believes that it is urgent that these facts be known and fully understood by the public, legislators, and federal and state government policy-makers. They create, in large part, some of the real problems police, prosecutors, and judges face in their efforts to perform their criminal justice duties successfully. As more fully discussed later in this report, these officials consistently told the Committee that they are regularly frustrated in their work because of the public's perception that if they did their jobs competently, they should be able to protect the public from crime completely. They reported that even if they were given sufficient resources, they could only effectively prosecute and punish a small percentage of the crime against which the public demands protection.

Their principal complaint, however, was that they were not given the resources to do what they could do well. The entire criminal justice system is starved for resources. Less than 3% of all government spending in the United States went to support all civil and criminal justice activities in fiscal 1985.9 This compares with 20.8% for social insurance payments, 18.3% for national defense and international relations, and 10.9% for interest on debt.10 Less than 1% of all government spending went into operation of the Nation's correctional system (including jails, prisons, probation, and parole).' 1

The Committee's findings, directed primarily at the serious crimes that do get into the criminal justice system, can be summarized briefly, as follows:

1. Constitutional restrictions, such as the exclusionary rule and Miranda, do not significantly handicap police and prosecutors in their efforts to arrest, prosecute, and obtain convictions of criminal defendants for most serious crimes. Rather, the major problem for the criminal justice system, identified by all criminal justice respondents to the Committee, is lack of sufficient resources. The entire system is starved: police, prosecution, criminal defense, courts, and corrections. As currently funded, the criminal justice system cannot provide the quality of justice the public legitimately expects and the people working within the system wish to deliver.

Inadequate funding inevitably leads to less police protection of citizens; unreasonable caseloads for prosecutors and defense lawyers; possible compromise of prosecutions through plea bargaining; inadequate representation for accused persons; crowded court dockets, long delays for criminal trials; and crowded jails and prisons, sometimes resulting in court orders either closing prisons or providing early release for convicted criminals.

The ABA should develop programs both to educate the public and Congress to this need and should urge local and state bar associations to do likewise with state legislatures.

2. An equally major problem reported by all criminal justice participants is the inability of the criminal justice system to control the drug problem in the Nation through the enforcement of the criminal law. Police, prosecutors, and judges told the Committee that they have been unsuccessful in making a significant impact on the importation, sale, and use of illegal drugs, despite devoting much of their resources to the arrest, prosecution, and trial of drug offenders.

These extraordinary efforts have instead distorted and overwhelmed the criminal justice system, crowding dockets and jails, and diluting law enforcement and judicial efforts to deal with other major criminal cases. The resulting frustration has led to instances of corruption and the ignoring of constitutional restrictions by some criminal justice officials.

The ABA should create a special blue ribbon commission to study and reevaluate national, state, and local strategies in dealing with the drug problem and to educate the public and federal and state legislators, as well as government policymakers, on the full extent of the problem and constructive solutions.

3. The criminal justice system plays a very important part in the lives of the victims, witnesses, and jurors who participate in the process. This interaction is the closest look at criminal justice most citizens will have in their lives, and it is vital, to the extent possible, that they come away from the experience with confidence in the process.

Much has been done in recent years to improve these experiences, but these efforts have not been consistent across the country. Several witnesses told the Committee that citizens who come in contact with the criminal justice system in their cities are not treated well; one even described the ordeal of victims as the "second victimization."

The ABA as well as state and local bar associations should continue their studies of the ways in which the interests of all citizens can be best accommodated by the criminal justice system. These organizations should also monitor conditions in their local systems to make sure that witnesses, jurors, and victims are receiving proper consideration.

4. Although the criminal justice system deals with only a fraction of the crime that is committed, the public mistakenly looks to the criminal justice system to eliminate the crime problem. Better public understanding of both the causes of crime and the important, but limited, role that the criminal justice system plays in its control is essential to meaningful change in our approach to the crime problem.

The ABA and other bar associations should focus on improving understanding of individual rights, criminal justice, and crime, both through public education programs and legislative efforts. It is doubtful the changes this Committee believes are needed will take place unless legislatures and the public understand what the criminal justice system does and why it is important for the system to function well. Raising false hope that the criminal justice system can eliminate crime is not the answer.

The ABA and other bar associations must also work with the media. The public learns much about crime and criminal justice through reports of problems that beset the system or the progress of "newsworthy" cases. Whether the issue is one case or larger issues such as plea bargaining, prison crowding or the drug problem-the criminal justice system needs a credible voice which can give the media and consequently, the public accurate information. To be effective, the source of this information must represent all components of the system and be above the politics which so often surround criminal justice issues both on the local and national levels.

5. All lawyers, whether criminal practitioners or not, share in the responsibility of ensuring that the most visible legal institution in the Nation, the criminal justice system, is of the highest attainable quality. Increasingly, however, indigent defense in many cities is almost the exclusive responsibility of public defenders and a very small private bar. The remainder of the trial bar is not fulfilling its obligation to participate through the representation of indigent defendants, and as a result, the status of the practice of criminal law suffers. Moreover, the shunning of criminal practice deprives the criminal justice system of a powerful voice for criminal justice reform, because the influential lawyers are unfamiliar with the workings of the criminal justice system.

The ABA has long recognized that criminal defense is the obligation of the entire trial bar. New approaches must be considered because today this obligation is unfulfilled in most jurisdictions.

With regard to the validity of the public's perception of the impact constitutional restrictions have on the ability of the criminal justice system successfully to apprehend, prosecute, and convict dangerous criminals, the Committee's findings can be summarized as follows:

6. Although the prosecutors and police the Committee interviewed believe that a few Fourth Amendment restrictions are ambiguous or complex, and thus, present training and field application problems, they do not believe that Fourth Amendment rights are a significant impediment to crime control. The exclusionary rule affects only a relatively small percentage of arrests and searches. A number of observers, including police officials, also report that the demands of the exclusionary rule, and the resulting police training on Fourth Amendment requirements, have promoted professionalism in police departments across this country. Thus, the exclusionary rule appears to be providing a significant safeguard of Fourth Amendment protections for individuals at modest cost in terms of either crime control or effective prosecution.

In one jurisdiction, the prosecutor reported a substantial number of illegal searches and seizures leading him to screen out these cases from prosecution. This was best explained to the Committee not as a problem created by the exclusionary rule, but as a symptom of police frustration over their inability, unrelated to constitutional restrictions, to combat the drug problem effectively in the face of public demand for conclusive action. In this atmosphere, some police departments have resorted to demonstrations of visible efforts to clean the streets of drugs, even though this has, in some instances, required them to ignore constitutional restrictions and forego prosecutions.

7. Although the Miranda decision has sparked heated controversy on apolitical level, the restrictions it imposes on custodial interrogation of suspects are not considered troublesome by either police or prosecutors. Police do not complain that Miranda prevents them from obtaining many statements. Prosecutors report that Miranda is not a significant factor that impedes the prosecution of cases. The Committee finds that Miranda does not have a significant impact on law enforcement's ability to solve crime or to prosecute criminals successfully.

8. The right to representation by counsel for criminal defendants is constitutionally mandated and essential to the administration of criminal justice. The defense lawyer, performing in accordance with professional standards, provides a necessary challenge to the prosecution and notwithstanding popularly held beliefs, does not cause dysfunction in the criminal justice system. Prosecutors and police appreciate the need for and role of the defense lawyer and do not believe that these lawyers impair their ability to control crime or to prosecute cases effectively. In the case of the indigent defendant, the problem is not that the defense representation is too aggressive but that it is too often inadequate because of underfunded and overburdened public defender offices.

I. Fourth Amendment-Search and Seizure

Although the prosecutors and police the Committee interviewed believe that a few Fourth Amendment restrictions are ambiguous or complex, and thus, present training and field application problems, they do not believe that Fourth Amendment rights or their protection via the exclusionary rule are a significant impediment to crime control. The exclusionary rule is applied to only a relatively small percentage of arrests and searches made by the police. A number of observers, including police officials, also report that the demands of the exclusionary rule and the resulting police training on Fourth Amendment requirements have promoted professionalism in police departments across this country. Thus, the exclusionary rule appears to be providing a significant safeguard of Fourth Amendment protections for individuals at modest cost in terms of either crime control or effective prosecution. This "cost," for the most part, reflects the values expressed in the Fourth Amendment itself, for the Amendment manifests a preference for privacy and freedom over that level of law enforcement efficiency which could be achieved if police were permitted to arrest and search without probable cause or judicial authorization.

Probably the most controversial constitutional limitation imposed upon police and prosecutors is the Fourth Amendment exclusionary rule, which requires courts to exclude otherwise admissible evidence against a criminal defendant when the evidence was obtained by an illegal search or seizure." Much of the controversy can be attributed to the widely held perception that the exclusionary rule seriously handicaps law enforcement, both on the street and in the courtroom.

The Committee was charged with assessing the validity of that perception. This assessment was made with the understanding that restraints on the police power to search and seize are imposed by the Fourth Amendment and that such circumscription is both essential and deliberate in a free society. Justice Stewart eloquently described this point:

The exclusionary rule places no limitations on the actions of the police. The fourth amendment does. The inevitable result of the Constitution's prohibition against unreasonable searches and seizures and its requirements that no warrant shall issue but upon probable cause is that police officers who obey its strictures will catch fewer criminals."

Necessarily, the enforcement of the Fourth Amendment involves costs; but as Justice Stewart stated, "[T]hat is the price the framers anticipated and were willing to pay to ensure the sanctity of the person, home, and property against unrestrained governmental power." 14

The evidence which the Committee gathered indicates that the exclusionary rule achieves a significant measure of police compliance with Fourth Amendment search and seizure restrictions. Moreover, it shows that the exclusionary rule has relatively little adverse impact on the criminal justice system and no discernible effect on the crime rate or law enforcement's ability to control crime.

The Impact of the Exclusionary Rule

Those who have studied the issue have concluded that it is difficult, if not impossible, to measure precisely either the deterrent effect of the exclusionary rule or its so-called "cost."15 To the extent that police officers and prosecutors have made adjustments in their training and procedures because of the exclusionary rule, it may be said that the exclusionary rule has had significant impact on police arrests and searches. Police recruits are now trained from the beginning of their careers on Fourth Amendment requirements. Coordination between the police and prosecutors on arrest and search issues, including legal assistance in the drafting of warrants, unheard of before the exclusionary rule, now occurs in a number of cities. 16 Also, after Mapp v. Ohio 17 made the exclusionary rule applicable to the states, the use of search warrants by state and local police increased substantially." It is reasonable to conclude that police departments have made these efforts to comply with the Fourth Amendment because of the exclusionary rule.19

What then is the "cost" of the rule? To be sure the Committee heard complaints that the body of law defining Fourth Amendment restrictions is complex, and as a result, teaching, understanding, and obeying the Fourth Amendment can be both difficult and at times, frustrating for police departments . 20 However, the witnesses testifying before the Committee certainly do not view the rule as an impediment to effective crime control. One police officer told our Reporter that in his experience, the Fourth Amendment was not a problem, as long as he was careful to keep his actions "within the guidelines." 21 Similarly, an assistant chief of police told our Reporter: "I don't think the Constitution itself or the Bill of Rights ... either are a major problem as far as law enforcement is concerned.... The price of freedom is that you're going to have to guarantee rights-to be taken advantage of by criminals as well as the good people too."22 This viewpoint was echoed throughout the Committee's hearings.

Q. The public has the view that the system is not working because of the exclusionary rule. Is this a correct impression?

A. No, it isn't.



Q. Do you agree that there's a broad public perception [that] court decisions [on] constitutional rights are one of the leading causes of crime?

A. It's the public perception.

Q. [Is that a valid perception?]

A. 11 don't think so]... I think the leading cause of crime is poverty.

(Trial Judge) ..............................

Q. Do you agree with the perception that constitutional rights are a leading cause of crime?

A. I don't.

(Assistant Prosecutor)

The conclusion that the exclusionary rule neither causes serious malfunctioning of the criminal justice system nor promotes crime is strongly supported by practically all of our other witnesses and by our telephone survey respondents. Taken as a whole, the testimony and the survey results demonstrate that constitutional limitations are not seen as a relatively significant problem by the people who must work within those limitations.

The telephone survey respondents were asked several questions relating to the Fourth Amendment. They were asked to identify the factors that either interfered with their own job effectiveness or the effectiveness of the criminal justice system in general. In both instances, the courts' constitutional rulings were considered a relatively insignificant factor." The mean (average) score for police respondents bordered on the designation "disagree" in the survey concerning the proposition that "search and seizure restrictions routinely prevent police from detecting and solving crimes"" or that such limitations "routinely result in prosecutorial refusal to accept cases or plea bargain.""

It is especially worthy of note that the police, toward whom the deterrent force of the exclusionary rule is primarily directed, do not consider search and seizure proscriptions to be a serious obstacle. Prosecutors, also, do not believe such restrictions are a "routine" concern. 26

Other responses were more predictable. Defense lawyers voiced strong disagreement with the proposition that the police and prosecutors are routinely hampered by the exclusionary rule.27 Judges also disagreed with these propositions."

The testimony and the other survey results explain these answers. Police witnesses indicated that they have learned to cope with the restrictions placed upon them under the Fourth Amendment:

Q. To what extent are search and seizure rules a problem for you day to day?

A. I don't believe that they are a major problem.... We have an outstanding educational program on current search and seizure laws. Most of the officers are aware of them. Frankly, I don't think that it presents a big problem to us.

(Police Lieutenant)


A. I think that there are some problems with regards [sic] to search and seizure particularly since the advent of the explosion of narcotics that we have in society within the last 10 years or so. I think that that has done a lot to increase our training problems and the ability to keep up on the latest court decisions. I think that that's an ongoing problem. I don't see that as a major problem or a major problem in [this] county.

(Assistant Police Chief) ..............................

Q. [Do y1ou think it happens a lot that evidence is excluded because of a bad search?

A. Much less now than it was ten or twelve years ago. [M]ost of the officers I see, take that extra effort to make sure the case is handled as best they can.... IT]hey have

had to learn over the years ... through their own mistakes

... until they eventually saw what had to be done....

(Police Lieutenant)

The Committee interviewed three chief prosecutors from different cities and one high ranking assistant from a large office in another city. One of these prosecutors, testifying as the designated representative of the National District Attorney I s Association, noted that prosecutors identify drugs, sentencing, and various aspects of federal-state coordination as the major national issues, rather than the Fourth Amendment as currently interpreted .29

Three of the four prosecutors interviewed also believe the number of cases affected by the exclusionary rule has been declining in recent years:

if you look at the numbers and you say how many times is the exclusionary rule responsible for cases being canned, I think the numbers are probably going down.

(Prosecutor) ..............................

Q. Do you have any estimate of the percentage of cases where [motions to suppress] are litigated and motions are granted?

A. It is very small. I don't have any.

(Prosecutor) ................... I..........

Q. How often are cases screened out because of search problems or Miranda problems?

A. I can't give you a definite percentage. A search issue or a Miranda issue is very small. The Miranda issue is perhaps substantially insignificant.... It would be a slightly higher percentage in search and seizure because in this state it has become a rather complicated issue.

Q. How many motions to suppress are actually granted?

A. Very few.

(Assistant Prosecutor)

To assess the wider significance of the testimony, the Committee wanted to know how many cases were being "lost" nationally because of the exclusionary rule. There are empirical studies conducted over the years which attempt to evaluate the costs of the rule and its impact on the criminal justice system.10 Although there is some disagreement, the weight of this authority is consistent with the committee's evidence and establishes that the cases primarily affected by the rule are drug cases. Violent crime cases rarely are lost because of the rule, and the percentage of the total number of cases in the system that are lost because of the rule is relatively small. A comprehensive survey,31 published in 1983, of the studies which have been conducted on how the exclusionary rule has affected the filing of cases found that the number of cases lost is small:

* Overall in jurisdictions with prosecutorial screening between 0.2% and 0.6% to 0.8% of adult felony arrests are screened out because of illegal searches.

* Adding together data on each of the stages of felony processing (police releases, prosecutor screening, and court dismissals), we find that the cumulative loss resulting from illegal searches is in the range of 0.6% and 0.8% to 2.35% of all adult felony arrests.

e In felony arrests for offenses other than drugs or weapons possession, including violent crime arrests, the effects of the rule are lower; prosecutors screen out less than 0.3% of these felony arrests because of illegal searches, and the cumulative loss is no more than 0.3% to 0.7% of such arrests.

9 Prosecutors screen out 2.4% of felony drug arrests (nowhere near the 30% claim of the National Institute of Justice), while the cumulative loss for drug arrests is probably in the range of 2.8% to 6% or 7.1%. (Weapons possession arrests may have a cumulative loss of about 3.4%, but data are very limited.)

* Very few arrests are lost by acquittals at trial following suppression of evidence.

The most striking feature of the data is the concentration of illegal searches in drug arrests (and possibly weapons possession arrests) and the extremely small effect on the arrests for other offenses, including violent crimes.:" I

The Committee notes that in terms of measuring the impact of the exclusionary rule on the filing of cases difficulties have been countered, because there are often many different reasons why a case may be dismissed, and all of those reasons may not be reflected in the appropriate records.

The Committee's telephone survey also attempted to gauge the general impressions practitioners have regarding the number of cases won or lost after filing because of the rule. The results establish that most prosecutors perceive that 5% or less of all cases are dismissed after filing because of the exclusionary rule.31 Similarly, roughly three quarters of the judges and defense lawyers polled claim that 10% or less of the suppression motions filed are succesSfUl.33 These figures must be used with caution because the survey questions were broadly worded and did not account for several possible variables. Moreover, impressions of survey correspondents typically are much better at reflecting attitudes than accurately reporting the statistical frequency of certain events." Nevertheless, even these impressions suggest only a modest cost attached to the exclusionary rule.

The only exception to this conclusion found by the Committee, particularly in one major city, was in the enforcement of gun and drug laws. A prosecutor in that city, who agreed that generally, Fourth Amendment limitations were not a problem, noted that because of search and seizure issues, he refuses to prosecute 50% of the gun and drug arrests in his jurisdiction .35 Of those he does approve, between 80% and 85% survive motions to suppress. When asked if guns and drugs formed a special category of cases, he replied:

[Y]es.... We don't have Fourth Amendment problems in other areas. We haven't had a murder weapon suppressed in forty years.... or a bloody towel, or anything like that. It's just guns and drugs we found we have a hard time with.

This prosecutor added that most of these cases involved automobile stops, and notwithstanding the numbers, he did not think the Fourth Amendment was an obstacle:

Q. [Why are there so many cases rejected? Is the law unclear or are the police not following the law and then not telling you the true circumstances?]

A. I'd say it's more the latter; I think it boils down to the veracity of the officers, more often than not.... I think the appellate courts are going as far as they can to allow law enforcement to do their job. But if I took everything they brought to us, our system would be at a standstill.

The Committee views this situation as an extreme example of law enforcement's frustration with its inability to control drug trafficking and weapons possession on city streets. It should be underscored that this is a symptom of a drug problem that defies recognized means of control, which is discussed elsewhere in this report '36 and not an inherent failing of the Fourth Amendment or the exclusionary rule. Moreover, characterization of this situation as reflecting a high "cost" of the Fourth Amendment exclusionary rule would be misleading, as existing resources in that locality (e.g., detention facilities, public defenders) would not in any event be able to handle any significant increase in criminal prosecutions.

It bears reemphasis that, notwithstanding this problem, the overall number of cases lost or dismissed due to the exclusionary rule is extremely low. Research also demonstrates that far more cases are rejected or dropped for reasons other than the exclusionary rule. 31

The rule's impact, however, cannot be assessed simply through an examination of statistics .31 Prosecutors noted that even one arrest lost to the rule has a significant effect upon the public's perception of the value of the exclusionary rule. The media attention invariably focuses on such a case and creates the impression that the entire criminal justice system is functioning irrationally; that guilty, dangerous persons, are routinely freed on technicalities. One witness described the impact of the public's image of the criminal system:

So it is true that in a determinative sense it may be one case, but the effect of the single case on the public's perception of the criminal justice system and their support and willingness to vote bond issues to build a prison, et cetera, I think, are affected by single cases.


Other witnesses agreed that the publicity the rule receives fosters the public's belief that the system does not work.39 This problem is very troubling, but it is not a problem with the rule itself or one peculiar to it. Rather, it is one of many misperceptions regarding the criminal justice system and crime that need to be corrected.

Some judges and prosecutors told the Committee that even though very few motions to suppress are granted, the litigation of such motions is time consuming. This criticism was sporadic and may reflect a more general problem in some cities of carrying a heavy caseload. This situation suggests that the source of the problem is overtaxed court systems."' Moreover, it is to be expected that litigation conducted in accordance with constitutional safeguards will take more time than litigation not so conducted. More significant was the view of witnesses that the exclusionary rule enhanced the professionalism of police departments.

Essentially, I really think that the Fourth Amendment and Fifth Amendment have really made the police officers better police officers because they have to be ... smarter police officers. If you recall, in the 60's when the Johnson Commission reports came out, on the whole the police officers were underpaid and not much education was required. Now, in this state we have ... a more professional corps of police officers who are brighter and better educated. 1 think, as we do away with these rights to protect defendants, I think it's ultimately [a] boomerang [effect].

(Trial Judge)"

After more than two decades with the exclusionary rule in place, the police have a considerable investment in the rule in its current form. They are not eager to replace it with different sanctions such as expanded civil remedies against the police officer or the department. Although the police expressed some objection to the notion of freeing guilty people because of a police officer's mistake '41 we were also told by one lieutenant that without the rule he feared there would be less reflection before police action, resulting in an increased number of civil suits against the police. In a recent study of narcotics officers in Chicago, a similar concern was expressed, along with the belief that police today might be overly cautious and search less often if civil suits were regularly brought against them as a primary means of responding to Fourth Amendment violations:

The officers also were asked if they thought a "system in which victims of improper searches could sue police officers directly would be better than the exclusionary rule." All of the officers responded "No." This question was followed by asking the officers, "What would be the effect of civil suits for damages on police work?" Twenty-one of the officers (95%) responded that police would be afraid to conduct the searches they should make."'

The Defense Perspective

Defense lawyers question the veracity of police testimony about searches and whether judges at the trial level resist invoking the exclusionary rule, particularly in more serious cases:

I don't think there is any doubt about that. And as a citizen I have absolutely no problems with that. I want my community to be safe and I want people who commit crimes to be punished. As a criminal defense attorney who is dealing with constitutional principles and their application in individual cases, their broad application, it disturbs me a great deal.

(Private Defense Counsel)


Yes. I don't think there is, other than on paper, I don't really believe there is much of a Fourth Amendment right, anymore.

(Private Defense Counsel) ..............................

Q. Isn't it true that there's a public perception out there manifested in some of this uneasiness on the bench because the public has lashed out? Isn't that a fact?

A. [Y]ou're absolutely correct. I get the impression that there is a public perception that a substantial portion of the bench does not sentence with a firmness that they would want. That a substantial portion of the bench follow technical rules that have no meaning or substance to allow known criminals ... to escape any type of punishment. Because of that perception, I think the bench has become sensitive to that. In my experience now there's an element of fear that enters into the analysis of a judge on legal questions so that they come down-here again, we're generalizing. If I had to generalize, they are coming down on the side of law enforcement, for lack of a better term, on the side of not suppressing evidence.

(Private Defense Counsel)

The Committee's telephone survey indicated that neither prosecutors nor judges believe that police perjury and judicial nullification are widespread, but there was sharp disagreement on these points from the defense bar.44 Traditionally, these two problems-were acknowledged to exist by both proponents and critics of the rule, but no one has established the pervasiveness of the practices.45 The Committee believes that these divergent comments merely suggest isolated problems and do not call into question the validity of the rule.


1. Public Education and Communication Between the Bar, the Media, and the Legislature: It is essential that the public recognize that the exclusionary rule, despite its occasional complexity and the problems associated with that complexity, secures valuable rights and has little or no effect on the crime problem. This is not to say that Fourth Amendment issues are unimportant to society. If we, as a nation, want to maintain our right to privacy as guaranteed by the United States Constitution, it is critical that the public and the legal profession not be misled into believing that our constitutional rights contribute to the crime problem or work to hinder effective law enforcement. Precious constitutional rights should not be abrogated on the faulty premise that, without them, the crime problem will be solved or the failings of the criminal justice system will be corrected.

The ABA can do much to encourage public understanding of the Fourth Amendment and the exclusionary rule. It should ensure that the Law Related Education program includes instruction in these critical areas. The ABA Section of Criminal Justice has attempted to educate policy makers and has accomplished a great deal in this area, particularly in its testimony before Congress. It is crucial, however, that these views be more effectively communicated and more widely disseminated. Beyond public education programs, it is essential that the press have access to accurate information at the national, state, and local levels. Public education is often dependent on an informed media; yet, all too often, sensationalized reports reach the public with no reply from respected members of the organized bar. Part of the danger inherent in the bar's failure to speak out in support of court enforcement of constitutionally guaranteed rights through mechanisms such as the exclusionary rule is that the independence of the judicial system as a whole is diminished. The Committee recognizes that obvious limits exist on the types of responses that can be made, but the ABA, as well as state and local bar associations, must devise a means by which accurate information is provided to the media and then to the public.

There is also a need to establish effective communication between the three branches of government, each of which must coordinate its efforts with those of the other branches to effect useful changes. The legislature, which passes laws and funds agencies, is particularly responsible for deciding when and how change will take place. If legislators base their funding decisions on the misguided belief that the ineffectiveness of the criminal justice system is due to the exclusionary rule, the real issues will not receive proper attention.

The ABA should disseminate educational material and promulgate standards in an effort to instigate meaningful change. However, standards and recommendations are rarely self executing; they require active implementation and the commitment of resources.

2. Training: Every police department should ensure that all officers are receiving quality cadet training in search and seizure limits, in addition to in-service training on a regular basis. More than one witness said that officers often learned more from the cases they lost in court than from those they won. Even though most police departments now have training programs, the extent of that in-service training, in some instances, may be inadequate.

The ABA, working with other organizations, may wish to develop materials both for initial and on-going training, as well as prepare manuals to train the instructors. Such a role would be consistent with the Committee's view that the ABA should take an active role in teaching lay people the law, particularly when such understanding has a critical effect on the public good.

3. Coordination Between the Police and the Prosecutor: The Committee concludes that the low incidence of search and seizure violations nationally is a strong indication that police departments recognize the need to obey the rule of law.

Mistakes, nevertheless, are made, and it is important that the police learn from these experiences. This kind of training cannot take place, unless there is an adequate flow of information between the prosecutor and the police department when search and seizure problems arise. The testimony presented to the Committee establishes that in some cities this exchange of information does not take place regularly."

Coordination in most cases should be an educative process, for both the officer and police management. Review should be automatic whenever a case is rejected for prosecution because of a search problem or when evidence is suppressed by a court. The police department and the prosecutor should first decide whether the training materials should be modified. If the officer has simply made a mistake in judgment, that mistake should be explained to avoid future errors. In most instances nothing further need be done. The one exception is when the police officer has deliberately, recklessly or repeatedly violated the Fourth Amendment. Such an officer is undeterred by the exclusionary rule and will continue to violate the Fourth Amendment, unless some other consequence is attached to the violation. In those rare instances, all police departments must recognize their responsibility to impose administrative penalties as an important supplement to the exclusionary rule to ensure that the Fourth Amendment is not ignored.

A recent study in Chicago reports positive results when officers are made aware of the result of Fourth Amendment violations, and where this subsequent loss of the case is viewed with significance by the police department. 41 The ABA, too, has previously recognized the value of administrative sanctions."' The critical events, however, are the transmittal of information about the search back to the police department and further action by the department. In most instances, the process should be educational, with little or no adverse consequences for the officer. In those cases where disciplinary action is appropriate, such action should be taken.

4. Clarification of Constitutional Requirements: The Committee recognizes the often difficult task police officers face on the spot in identifying the limits of their authority under the Fourth Amendment. Though this is not seen as being a major problem to crime solution and prosecution today, there are still concerns that the law defining Fourth Amendment restrictions is too complex and at times, confusing to police officers. It may be unreasonable to expect them to assimilate and be current on judicial opinions, which are constantly redefining Fourth Amendment standards. Courts must be ever mindful that opinions defining the limits of police authority must, to the extent possible, provide bright-line standards which can be readily followed. This will not always be feasible, and to the extent possible, prosecutors and bar associations should also provide a mechanism by which these court opinions are explained to police in clear language that can be applied easily in the field. Where necessary, amicus briefs can be filed with the appropriate court advocating the need for clarity.

 2.  Fifth Amendment-Miranda v. Arizona

Although the Miranda decision has sparked heated controversy on a political level, the restrictions it imposes are not considered troublesome by either police or prosecutors. Police do not complain that Miranda prevents them from obtaining statements from suspects. Prosecutors report that Miranda is not a significant factor which impedes the prosecution of cases.

The Committee finds that Miranda does not have a significant impact on law enforcement's ability to solve crime or to prosecute criminals successfully.

In 1966, the United States Supreme Court held that the atmosphere of custodial interrogation by police was inherently coercive and led to suspects being compelled to incriminate themselves in violation of the Fifth Amendment .4' The Court concluded that compelled confessions were obtained by the police because suspects either were unaware of their constitutional right to remain silent, or they were unable, without legal counseling, to weigh the consequences of remaining silent or of talking to the police. The remedy fashioned by the Court in Miranda was the requirement that prior to interrogating anyone in their custody, the police must administer warnings of the right to remain silent and the right to consult with a lawyer-retained or appointed, depending on the ability to afford a lawyer-before any questioning takes place.

Miranda remains a controversial decision in some quarters today, although the predictions that it would seriously hamper the ability of the police to obtain confessions have not come to pass.50 Over two decades later, and after a number of Supreme Court decisions have narrowed the decision,

Miranda is still a common target of demands to "get tough on crime." It formed the centerpiece of then United States Attorney General Meese's call for reform of the criminal justice system.51 Because of Miranda's high public profile '51 the Committee focused on the question of whether Miranda poses a significant impediment to the ability of police, prosecutors, and the courts to solve crime and prosecute and punish criminals effectively.

A very strong majority of those surveyed-prosecutors, judges, and police officers-agree that compliance with Miranda does not present serious problems for law enforcement. This conclusion taken together with earlier empirical studies assessing the impact of Miranda 51 is a strong repudiation of the claim that law enforcement would be greatly improved if Miranda were repealed or overruled.

The Police Perspective

Police witnesses consistently testified that they comply with Miranda and still obtain statements from many suspects.

I don't think it's much of a problem any more. I think that initially it was.... I think that there was a shaking out process for at least five to seven years where there was quite a bit of conflict.

(Deputy Police Chief) ..............................

I don't see it poses any special problem. I don't even really see a need for it, personally.... Everybody knows what Miranda is.

(Police Lieutenant) ..............................

Q. To what extent do [the Miranda warnings] interfere with the ability to solve crime?

A. [M]ost of the arrestees can recite the Miranda [warnings] better than the officers. It's not unusual to have them read it to you or give it to you verbatim.... [T]hey don't miss a word.... [I]t's a routine. They've been through it. We've been through it. Everybody knows what's going to happen as it occurs. It doesn't, frankly, interfere too much with confessions, surprisingly enough.

Q. Do you get as many confessions?

A. I would say that [when I worked in the burglary division] I had signed confessions probably on 70% of my cases. [Obtaining confessions under Miranda is] not unusual at all. It doesn't really inhibit that statement.

Q. Is there any special way around it?

A. It's human nature, once you start answering questions, to keep answering questions. Once you establish a rapport with someone you want to keep talking to them.... Well, he's already talked to me for fifteen minutes. He'll say yes, he'll keep talking. Now, if I go in cold and advise him of his rights, he'll probably say no. But when I get him talking he'll keep talking. That's the way it is.

(Police Lieutenant)


If there is a problem it is not Miranda.... Getting rid of Miranda would have no major effect.

(Police Inspector, Summary of Reporter's Interview)

The Prosecutor's Perspective

Prosecutors, too, generally have little quarrel with Miranda. One believed that juries attach greater credibility to confessions that are obtained after Miranda warnings:

The Miranda issue, is perhaps substantially insignificant. There's a reason for that. The smarter the police are and the way they conduct themselves, the more likely it is that the Miranda problem would never appear on the prosecutor's desk.

(Assistant Prosecutor)


[Al good police officer [could talk defendants into confessing before or after] there was a Miranda... and so it had no real impact at all upon the ability of good police officers to get

lern that occurred more frequently many years ago, but is a rarity today. 14

Defense lawyers at the hearings also claimed that they rarely were able to get confessions suppressed:

Q. How often have you been successful in the last year let's say in getting evidence suppressed or confessions suppressed?

A. Very rarely is anything suppressed.

(Assistant Public Defender) ..............................

Q. How often are you successful in getting a [Miranda] Motion [granted]?

A. Seldom, if ever. The difference between zero and none, lately. I think the public is really more misinformed about Miranda, than the police are, to tell you the truth. I really find the police are, by and large, effectively giving Miranda rights. And I don't really have the complaint, today, about Miranda not being given as often, near as often as I did years ago. But I don't see the courts throwing out Miranda cases.

(Private Defense Counsel) ..............................

Q. What about Miranda?

A. [V]ery rarely do you win one.

(Private Defense Counsel) ..............................

Q. [Do] you see either one of those issues, whether it's the Miranda issue or the exclusionary rule, being a substantial impediment, either to the police, or the prosecutors, in doing their job?

A. I frankly do not. I used to be able to win those things. It's impossible for me to win a motion to suppress, now.

(Private Defense Counsel)

The Telephone Survey

The telephone survey sought to gauge respondents' immediate sense and attitude towards Miranda. Overall the sample of 835 people believed that "Miranda warnings and motions to suppress are effective." 55 They did not believe that "Miranda warnings routinely prevent police from detecting or solving crimes," nor did they believe that "Problems with Miranda warnings routinely result in prosecutorial refusal to accept cases or plea bargain." 51

Prosecutors, defense counsel, and trial judges consider "U.S. Supreme Court 4th, 5th, and 6th Amendment rulings" to have relatively insignificant impact on their own performance within the criminal justice system and on the performance of the criminal justice system itself . 51 Eighty-seven percent of the 234 prosecutors surveyed believed that 5% or less of their cases were dismissed because of Miranda problemS.5" As with similar questions for the Fourth Amendment, this figure must be used with caution." The survey question was broadly worded and did not account for several variables, and the impressions of survey respondents are much better at reflecting attitudes than accurately reporting the statistical frequency of a given event. Nevertheless, these impressions suggest only a modest cost attached to the Miranda rule.

The evidence from all sources consistently points to one conclusion: Miranda compliance produces no major problems for law enforcement and has little impact on its ability to solve crime.


1. Both the public and the legal profession must be made aware that Miranda, however controversial it has been, has little effect on society's ability to deal with crime today. Its demise would do little to decrease crime or to improve the effectiveness of prosecutions. There should also be wider recognition of Miranda's virtues. Although it does little to impede the police in their investigations, Miranda has a very important symbolic value, reminding police officers of the limits of their authority over suspects. It has also helped to professionalize police departments and very likely to reduce the incidence of physically coerced confessions.

Two decades ago, Senator Arlen Specter called for Miranda's demise. Asked recently, he responded, "Whatever the preliminary indications were 20 years ago, I am now satisfied that law enforcement has become accommodated to Miranda, and therefore I see no reason to turn the clock back." 60 The ABA can do much to inform the public and the media that Miranda is not the source of the problems involved in prosecuting and punishing criminal offenders in this country, and that the Miranda warning requirement has done a great deal to protect the basic integrity of the interrogation process and promote the credibility of confessions.

2. The ABA should consider conducting an in-depth study of interrogation procedures in the United States. It would be particularly helpful to explore the potential for greater use of videotaping of interrogation sessions in their entirety. The technology to implement such a procedure certainly exists, and a rule requiring taping could make review of police interrogation, including compliance with Miranda, far more accurate and efficient.


3 The Sixth Amendment-The Right to Counsel

The right to representation by counsel for criminal defendants is constitutionally mandated and essential to the administration of criminal justice. The defense lawyer, performing in accordance with professional standards, provides a necessary challenge to the prosecution and notwithstanding popularly held beliefs, does not cause dysfunction in the criminal justice system. Prosecutors and police appreciate the role of the defense lawyer and do not believe that these lawyers impair their ability to control crime or to prosecute cases effectively. In the case of the indigent defendant, the problem is not that the defense representation is too aggressive but that it is too often inadequate.

The Sixth and Fourteenth Amendments guarantee that all people, rich or poor, have the right to the assistance of counsel if criminal charges are initiated against them. In 1938, the Supreme Court ruled that counsel must be provided for all indigents charged with federal crimeS,61 but the constitutional right to counsel was sparingly applied to state proceedings until 1962 .62 That year the Court, in the landmark case of Gideon v. Wainright,63 mandated that the states must provide indigents with counsel in all serious criminal cases.

Because most "street crime" is committed by people too poor to retain counsel, implementation of the Gideon requirement brought a profound change to the criminal justice system. In many states, the obligation to defend the poor is undertaken by a public defender organization or organizations. Some are statewide government agencies under the executive or judicial branch of government; others exist as independent agencies. The responsibility to provide counsel can also be undertaken at the county or city level, by creating a government or independent agency to provide these services. There are other models, as well, which rely on members of the private bar. A state or county government may provide for representation through contracts with bar associations, individual lawyers or firms. Finally, counsel may be provided by the court through assignments to members of the bar on a case-by-case basis. In many instances, government will use a combination of representation models to provide counsel to all who need it.64

Popular notions of the role of the defense lawyer often lead the public to believe that a good defense lawyer will routinely be able to "beat the system" and thereby, frustrate justice. 65 For this reason the Committee examined the extent to which police, prosecutors, and judges believe the constitutional right to counsel causes dysfunction in the criminal justice system.

Neither those witnesses who testified before the Committee nor those who responded to the telephone survey identified the right to counsel as a "problem" for the criminal justice system. The only exception was a claim by one deputy chief of police that private defense lawyers unfairly delayed cases:

I do have a problem with the private bar and the way the private bar operates in this county and the continuances.... What we found [in a very limited study that was done several years ago] was that there were many, many continuances, as many as twenty or thirty continuances. In looking at these continuances, the vast majority were made by defense counsel and a vast majority of those were by the private bar.

This complaint was too isolated to alter the Committee's findings, but to the extent that the complaint is legitimate, it most likely manifests a failure by the trial judges in that locale to control case flow effectively.

Although prompt trial tends to benefit the prosecution, delay, in any given case, can be strategically advantageous to either or both sides. Because the adversary process necessarily involves strategies, maneuvers that have tactical values will be a potential source of abuse by the prosecution or the defense .66 This, however, does not mean that protracted postponements are inevitable.

The ABA has recognized the problems of tactical delay and adopted guidelines designed to curb unnecessary postponements by either the prosecution or the defense .67 The key to minimizing abuse lies with the court. A private defense attorney who appeared before the Committee viewed prosecution and defense delay as a management problem that judges should be able to control. A recent study also emphasized the important role of judicial management:

The heart of case flow management is the adoption of an active leadership role by the courtroom judge to move cases to disposition. Specifically, the judge must assume responsibility for case movement, and prevent attorney efforts to control cases.67

The Quality of Representation

A large segment of the public, 69 as well as many members of the legal profession believe that the poor do not receive the quality of representation equivalent to that afforded the wealthy. Social scientists have attempted to study these claims, but the results are inconclusive." Nevertheless, it is clear that those who represent the poor are not generally held in high esteem, either within the legal profession or outside it." The Committee was primarily interested in studying the current state of representation provided by appointed counsel to defendants in criminal cases to determine whether the poor today were receiving high quality defense. We were also interested in measuring the extent to which the private bar was involved in the criminal justice process.

Both of these issues are discussed in more detail later in this report as part of the discussion of the major problems of the criminal justice system which were reported to the Committee. In short, there is ample evidence that the quality of representation, particularly for the poor, is not what it should be. Not only are we, as a society, depriving the system of the funds necessary to ensure adequate defense services, the private civil bar is not meeting its responsibility of involvement in the criminal justice process. The criminal justice system is shunned by the mainstream bar, and it will never be able to attract funds and public support if it cannot even garner the respect and support of the bar.


The evidence that the Committee gathered establishes that the public perception that the right to counsel creates problems for the criminal justice system is unfounded. Consequently, the Committee strongly recommends that the ABA and state and local bar associations increase their efforts to correct this misperception.

The ABA itself has long recognized the need for the bar to ,'educate the public to the importance of providing representation" because "unfortunately, the necessity for providing defense services is often misunderstood by the public."" The defense attorney performs an essential function in the criminal justice system, not only in terms of protecting the rights of clients, but also in facilitating the resolution of the mass of cases that overburden most modern court systems. Despite the dramatic picture of the defense lawyer proving his or her client innocent in the middle of a jury trial (an image provided by Perry Mason, Matlock, and scores of other defense lawyers portrayed in popular culture), the reality is, and has been for many years, that in most cases the accused, on advice of counsel, forgoes trial and pleads guilty. Witnesses routinely indicated that roughly 80% or more of their cases were resolved by guilty plea. The public needs to know that the defense lawyer is very much a part of the criminal justice system and necessary to its effective and fair operation.

The Committee recommends that in educating the public regarding the constitutional guarantee to the assistance of counsel emphasis should be placed on the following areas: 1) Clarifying the role of the defense lawyer in the criminal justice process; 2) Explaining why the defense function is an essential component of the system; and 3) Exposing as a misperception the notion that the defense lawyer is routinely obtaining acquittals for obviously guilty clients.

The Committee makes other recommendations regarding the need to improve the quality of representation and the need for greater private bar involvement in the defense of indigent defendants elsewhere in this report.

 4 The Major Problems of the Criminal Justice System

As discussed in the preceding sections of this report, police, prosecutors, defense counsel, and judges, interviewed by the Committee, disagreed with the public perception that constitutional protections of criminal defendants are a significant cause of the dysfunction of the criminal justice system. Instead, these criminal justice participants consistently described a number of other problems they claimed were the major impediments to their ability to perform their duties in the administration of criminal justice successfully.

The Committee, which had neither the time nor the funding to study these problems in depth, strongly believes they deserve priority consideration by the ABA, state and local bar associations, scholars, and government agencies concerned with improving criminal justice systems on a local and national level. With this purpose in mind, the Committee reports the following findings on the problems considered the most serious by the criminal justice respondents to the Committee's inquiry.

1. Resources

As currently funded, the criminal justice system cannot provide the quality of justice that the public legitimately expects and that the people working within the system wish to deliver. Legislatures and Congress must devote far more money to all components of the criminal justice system if public expectations have any hope of becoming realities. Compromise will persist and necessarily limit the quality of the services that can be delivered as long as the criminal justice system must operate without adequate resources.

The testimony and survey results consistently identify lack of adequate resources as the major problem facing each segment of the criminal justice system. 14 This observation is longstanding and well documented. The Katzenbach Commission identified the futility of wanting better services without wanting to pay for them," and a 1984 National Institute of Justice sponsored study reported that:

Overcrowded institutions are the end product of a tidal wave of cases that have flooded all agencies in the criminal justice system. When asked to name the most pressing problem facing their own agency, administrators generally cited their version of the same phenomenon. Variations on the response "Too large a caseload" were given by prosecutors, public defenders, court officials, and heads of probation and parole departments. Police talked about having too few officers. 16

In addition to the obvious consequences of underfunding - reduction of police protection of the public-the Committee learned at its hearings of other devastating repercussions of a starved criminal justice system. The three examples presented below, while not exclusive, illustrate how underfunding one agency hurts the entire system. They also underscore the fact that much of what the public dislikes about the criminal justice system can be related, either directly or indirectly, to underfunding.

Plea negotiation: Polls indicate that plea and sentence negotiations are distrusted by a majority of Americans." A single plea bargain can fuel an intensely negative public reaction. The popular view of plea negotiation is reflected in the media. One newspaper column characterized the plea negotiation process as "one of the great abominations of the American criminal justice system." 18

There are many reasons why prosecutors and defense lawyers negotiate rather than litigate cases.79 Not all negotiation is necessarily bad, and it can have positive values. Negotiation, which culminates in an agreed disposition between the prosecutor and the defendant and counsel, approved by the judge, based upon a fair assessment of the likely outcome of the trial and the likely sentence if the defendant should be convicted, is quite proper. Such a disposition saves time and conserves resources which can be applied to other pending cases. The situation is different when a primary motivating factor is the knowledge that available resources will only allow for a very small number of trials .80 The Committee was told repeatedly that plea negotiation was essential, because the system simply could not function if more defendants exercised the right to trial."'

The pressure to negotiate pleas cannot be substantially reduced without a dramatic increase in resources. Until more money is committed to the system, a potentially dangerous situation, which may erode the quality of criminal justice, will continue to exist. Although criminal justice professionals believe plea negotiation is both essential and generally equitable, 112 plea negotiation compelled by a lack of resources compromises both the interests of the public and the rights of the defendants. If the sentences imposed after trial are substantially greater than those imposed after pleading guilty, the defendant is deprived of the free exercise of the right to trial. Conversely, effective prosecution is compromised if the concessions given in return for waiving the right to trial include an inappropriately lenient sentence. Even the most well-intentioned lawyers cannot assess the best interests of their clients if they are continually facing caseloads which they know they cannot handle. In chronically underfunded criminal justice systems, there is a risk that negotiated dispositions have supplanted the adversary process with all its rights and protections and what remains is a very unsatisfactory form of justice, "bargain-basement" justice.

Defense Services: Although all facets of the system are hurt by underfunding, the hearings revealed that the problem can be particularly acute for organizations with little or no political power. As noted earlier, because most criminal defendants are indigent, the state is obliged to bear a large part of the cost of providing defense counsel and defense services. Although respondents to the telephone survey believe that indigents receive effective representation '83 studies conclude that indigent defense systems nationwide are underfunded .84

Several disturbing comments from witnesses who met with the Committee strongly support the findings in the studies.

One judge claimed that the court-appointed counsel compensation system in his jurisdiction required lawyers to carry more cases than a lawyer could effectively handle because, if you don't do that, you go broke.... [I]t tends to develop a practice that is not what we would hope it would be for indigent criminal defendants.

Private counsel in that jurisdiction added:

I think the bar as a whole, for a variety of reasons-numbers of people, financial problems, motivation or lack thereof probably [does not do a very good job]. 1 think there are a good number of good to very good attorneys who are practicing criminal law in [this jurisdiction] who do a large number of court appointed cases, but I think there is an even far larger number of people who don't do a very good job, who are either unmotivated or incapable, or whatever the cause may be.

One assistant public defender felt his office provided effective representation when individual attorneys were carrying average caseloads of forty to fifty cases, if they were handling felony cases. A judge in that system, however, believed that with any more than thirty to forty cases a public defender starts to lose track of his or her cases. He added that the public defender did not attempt to cap the number of cases per attorney nor ask for more attorneys for "political reasons. 1185 In another city, the Committee found a beleaguered defender system overburdened with cases, seriously underfunded-and with no apparent means of changing the situation. The defender there described each attorney's caseload:

I can give you a profile of what the average lawyer would handle in one year, in our office. That lawyer would handle two Murder 1st Degree cases, one other homicide, a hundred and thirty-three other felonies, one hundred and forty-four misdemeanors, five post-conviction relief cases, eighteen probation revocations, six extraditions, one miscellaneous writ, and one petition for a release from a mental institution.86

These caseloads are unmanageable regardless of how industrious the attorneys may be. The ABA supports the following maximum allowable attorney caseloads as adopted by the National Advisory Committee on Criminal Justice Standards and Goals and endorsed by the National Legal Aid and Defender Association:

a. 150 felonies per attorney per year; or

b. 300 misdemeanors per attorney per year; or

c. 200 juvenile cases per attorney per year; or

d. 200 mental commitment cases per attorney per year; or

e. 25 appeals per attorney per year.81

Moreover, the lawyers in the city noted above are underpaid as well as overworked:

I have attorneys that are in their third and fourth year with our office, who are making, maybe, a thousands, two thousand more than someone who is just starting, and they're handling homicides. And so, when they come to me with being stressed out, and the case load, and the responsibilities, and ... trying to meet expenses at home, I can't really say too much.

(Assistant Public Defender)

The end result is inferior representation for indigents in that city. The delays created because overworked defenders cannot prepare their cases promptly is the single largest problem facing the prosecutor there.88

The Committee was so shocked by the intolerably overburdened condition of a Public Defender Agency in this jurisdiction that its Chairman met with leaders of the state and local bar associations, who have now, as a consequence of the Committee's findings, begun efforts to remedy this situation.

Prison Crowding: The prisons and/or jails in all the sites the Committee visited were under some form of court supervision because of crowding. This situation is commonplace nationally" and underscores the futility of sentencing more people to longer sentences without creating additional space to hold them. Inevitably, parole boards or courts are forced to release people before their sentences are served simply because of a lack of space.

The Parole Board releases offenders too soon, an inmate who serves 40% of his sentence has served a lot of time.... [I]f the public is upset, they are going to have to address the governor or the state authorities.90


Insufficient resources has been a serious problem for the criminal justice system for many years. The ABA and other bar associations must use their influence to alert the public and legislatures to the fact that quality criminal justice costs a great deal more than we are spending today. It should be emphasized, however, that quality will not necessarily improve with the expenditure of additional monies. Legislatures must not only appropriate more for criminal justice but must also adopt a system-wide approach and fund all components of the criminal justice system adequately. Legislation that increases the number of crimes and length of prison sentences without also providing for additional police, prosecution, and defense services, as well as additional prison cells, must be seen as a futile, counterproductive gesture.

2. The Drug Problem and the Criminal Justice System

The criminal justice system is not controlling the drug problem that plagues this country. There is an immediate need to rethink our strategies for dealing with drugs, and the answers will not be so simple as merely making more arrests and imposing longer prison sentences.

The Committee neither had the time nor the funding to study this problem adequately and does not offer any opinion as to solutions. Our hearings, however, do confirm the growing belief that the drug problem in this country is severe, growing worse, and that law enforcement has been unable to control the problem. This assessment is not meant to be critical of the law enforcement effort. Indeed, it is a view increasingly held by people in law enforcement who recognize that the use of dangerous drugs is a societal problem, one too pervasive to be "controlled" simply by declaring it to be illegal:

Q. You are making a lot of arrests [and getting] convictions, long time on drugs. Does it make any difference in the drug traffic?

A. No. That's nationwide, though.

(Police Lieutenant)

Q. I gather from what you are saying, you don't see the [intense street drug arrest programs] as eliminating the drug problem in the city.

A. No, I don't think the chief or anyone else believes that that is going to eliminate the drug problem.

Q. Is there a law enforcement solution to the drug problem?

A. No, there is no law enforcement solution to the problem.

Q. Why not?

A. It is ultimately a social problem.... [T]he problem is that people-for some reason their life is such that they feel the need to obliterate some of it, to remove the pain of it or whatever it may be, or make it more exciting or whatever. And you can't attack that from a law enforcement point of view. Law enforcement really only works on problems where there is a very large consensus in the population that the law should be enforced, and to try to enforce it very heavily in situations where there is a large number of people who want to violate the law just doesn't work.

(Police Inspector)

The problem is so severe that in many cities drug trafficking occurs openly in the streets. The public outrage at seeing residential neighborhoods turned into open-air drug markets has prompted many police departments to make massive numbers of arrests of both the street sellers and the users. There is little sign, however, that this does much more than move the operations to another location.

Also, as noted earlier, one prosecutor indicated that because of search and seizure problems, 50% of the gun and drug arrests are rejected for prosecution:

A. [I] think our Police Department is rather aggressive. I can't imagine that they're that much better, or more aggressive, than they are in Boston, or Baltimore, or Salt Lake City, for that matter. But I think they go out to get the stuff, no matter what it's going to take.

Q. Getting guns and drugs off the street?

A. Yes, [that] is viewed as a primary objective.

Q. Whether it's excluded or not?

A. [I]n an eight-hour shift, I think they have races to see how many guns they can get.... [T]hey know how to write reports pretty good, and it's up to us, then, to, I think, weed it out.


The Committee heard claims in other cities as well that police are not necessarily deterred by the Fourth Amendment when they are searching for drugs or guns.91 This is evidence that certain disregard for the Fourth Amendment, specifically in drug cases, may be an unavoidable by-product of a drug problem so pervasive that the police feel they sometimes must violate constitutional restraints in order to regain control of the streets. It is equally important to realize that the problem is drug use and not the constitutional restrictions on the police. The legal and illegal searches and arrests for drugs have generally proven ineffective in controlling or reducing the drug problem. 93

While law enforcement has had little effect on drug use, drug prosecutions have had a profound effect on the criminal justice system. In the cities the Committee visited, drug cases have overwhelmed the courts. The enormity of this problem has been masked principally because the broadest crime statistic surveys, such as the Uniform Crime Reports, focus on violent and property crimes. In many jurisdictions police departments are bringing thousands of drug cases into the system, and the numbers are increasing as public indignation accelerates over "blatant drug dealing in the streets."9' One prosecutor described the impact:

The office has expanded over the last few years as a result of necessity. In 1979, for example, the total number of cases referred to our office dealing with adult misdemeanors and felonies by arrest was a little more than 19,000 cases. By the close of business in 1986, at a time when "crime was believed to be going down," the total number of cases referred to our office by the Metropolitan Police Department had risen to almost 29,000, from 19,000 to almost 29,000 over a seven-year period, when crime was allegedly going down.91

These cases are accommodated by the prosecutor and the courts but only by further distortion of a system that already lacks adequate resources. Crowded dockets compel additional plea negotiation of both drug and non-drug cases, and defense lawyers and prosecutors are burdened with caseloads that defy effective representation for either side. Court delays are magnified, and still further down the line, treatment programs, parole and probation officers, and prisons are incapable of dealing with the number of people the courts are placing under their supervision.

The complexity of the relationship between drugs, crime, and the criminal justice system cannot be assessed by simply counting the number of drug arrests. A recent study indicates that "between 53 to 79 percent of the men arrested for serious offenses in 12 major cities tested positive for illicit drugs. . . . 1196 Although a precise causal link has yet to be established between drugs and the incidence of crime," there is an increasing amount of evidence that a substantial link does exist. 98 Certainly, participants in the criminal justice system believe that a substantial link does exist. 99

Drugs and the money associated with their traffic have the additional deleterious effect of public corruption.100 Bribery, even complicity, in trafficking by law enforcement officials or lawyers and judges is inevitable. Although the numbers are a tiny fraction of the total number of people working in the system, this corruption damages the capacity of the system to fight crime and maintain an image of honesty and fairness.


In light of the Committee's findings in the area of drugs, a simple but significant truth should be faced: conventional law enforcement methods are not controlling the drug problem.

The ABA is urged to take a leading role in acknowledging the gravity of the situation, and in giving the drug problem and its ramifications the highest priority for further study and action. The ABA must encourage forces both inside and outside government to work together to create new national, state, and local strategies to combat drug abuse. Moreover, the ABA must bring to light the effect massive drug arrests have on the criminal justice system. If distortion of the criminal justice system is to be halted, the resources must be available to handle the enormous number of drug cases brought into the system by the police.

An initial action the ABA must take is the creation of a special commission to study this matter thoroughly and recommend appropriate courses of action which can be taken to better deal with this fundamental problem which effects, directly or indirectly, every person in our society.

3. Citizen Relations

Although in recent years, a serious effort has been made to acknowledge and meet the needs of witnesses, victims, and jurors, there are indications that in this regard, still more can be done in some cities. There are also some important and unanswered questions regarding the rights of victims, which should be resolved in a manner that accommodates the legitimate interests of the victim and the defendant.

Many citizens learn about criminal justice through their experience as victims, witnesses or jurors. These experiences, to the extent possible, should be positive and informative. The testimony presented to the Committee indicates that much is being done to accomplish this, but in some cities more remains to be done. Our witnesses noted inconsistency in the manner in which jurors are treated. Many judges are taking special pains to make the juror experience a positive one, but "Some judges tell the [jurors] to be back at nine and not bring them back in the courtroom until two and say, 'I am sorry for the delay."'101

A particularly volatile issue concerns the way in which the criminal justice system deals with victims.102 The telephone survey results indicate considerable belief that victims are not well served by the system. They also reveal that many people question the extent to which the system is intended to serve the needs of the victim:

I don't think victims should participate in the system. They want to tell me what to charge and what plea to offer. I understand their concerns, but I have to balance my cases and worry about things like jail space; victims can't possibly understand things like that.



The criminal justice system can't make a victim whole again; we are not counselors and can't help with their psychological problems. It's not our job.

(Trial Judge) 103

Several of the witnesses believe that the system does not treat victims or witnesses properly. 104 One witness, whose organization evaluates and "watches" the local court system, defined the issue in blunt terms:

A. [I]t appalled me when I got into this area, that there is actually something that is well established called a second victimization. The first victimization is when you get hit over the head. The second victimization is what the system does to you.

Q. They ignore you.

A. You are all college graduates and law college graduates.

It is not as if you are running a plumbing shop where you are used to screwing over people. We are talking about a system that, in research terms, screws you twice.

The Committee takes no position on this view, but notes that the perception it expresses is widely held. In 1982, the President's Task Force on Victims of Crime, in recognition that victims are not given the standing they deserve, called for a constitutional amendment recognizing the victim's right to be present at all critical stages of a criminal proceeding.101 Much has and continues to be done to alleviate these concerns. Many legislatures have passed or are considering victim's rights legislation. In addition, prosecutors, too, are providing increased services for victims of crime both before and after the prosecution is completed. Balancing the rights of the victim and litigants, however, can be difficult, and many problems remain to be resolved.


The criminal justice system's interaction with citizens, as jurors, victims, and witnesses, should be viewed as an opportunity to educate a significant portion of the public about the system. For these citizens, this is probably their closest look at criminal justice, and every reasonable effort should be made to make the experience a positive one.

The ABA has long been in the forefront on these issues. It should continue its efforts to promote better treatment for victims, witnesses, and jurors in ways which do not encroach upon the rights of the defendant. In 1984, the ABA, in conjunction with the National Institute of Justice and the Pepperdine Law Review, sponsored a symposium to address victim's rights and the role of the victim in the criminal justice process. 106 Further work on these subjects is essential to ensure that the criminal justice system best serves the needs of all citizens whose lives it touches.

4. Public Understanding of the Criminal Justice System Better public understanding of crime and criminal justice is critical to any attempt to improve the funding and support for the criminal justice system in this country.

Polls tell us that the public generally does not believe that the system works well.101 The Committee's telephone survey indicates that many people within the system sense this lack of public confidence.108 Although the major crime commissions of the 1960s and 1970s cautioned that too much was expected from the criminal justice system's' in 1985, when the President of the Eisenhower Foundation looked back on the effect of the Violence and Katzenbach Commissions, he concluded:

Most policy observers still do not understand that the criminal justice system-police, courts, and prisons-merely reacts to crime and cannot do much to prevent it .... Even with the experience and empirical findings that support it, the potential of neighborhood, family, and employment as a national policy of crime prevention integrated with a policy to reduce the underclass will be resisted by those who are unable or unwilling to move beyond preconceptions and face the limitations of deterrence and incapacitation."'

The Committee formed no opinion regarding the deterrence capability of the criminal justice system. The public's expectation that the system should control crime 112 cannot be reconciled with the sense of criminal justice professionals, strongly supported by the data, that the system itself has a limited role in crime control and crime prevention. [I]f public expectations remain too high, the public's lack of confidence in the criminal justice system and lack of support for it will likely continue.


The ABA and other bar associations should focus on improving understanding of individual rights, criminal justice, and crime, both through public education programs and legislative efforts. It is doubtful the changes this Committee believes are needed will take place unless legislatures and the public understand what the criminal justice system does and why the effective functioning of the system is important. Raising false hope that the criminal justice system can eliminate crime is not the answer.

The ABA and other bar associations must also work with the media. The public learns much about crime and criminal justice through reports of problems that beset the system or the progress of cases deemed newsworthy by the media. Whether the issue is a single case or one of the larger issues such as plea bargaining, prison crowding or the drug problem, the criminal justice system needs a credible voice that can give the media and consequently the public, accurate information. To be effective, the source of this information must represent all components of the system and be above the politics that so often surround criminal justice issues both on the local and national levels. Bar associations are the best organizations to provide this voice. To achieve this goal, the Committee recommends the establishment of nationally or locally recognized committees which would regularly provide the media with information and insight on current criminal justice issues.

5. The Isolation of the Criminal Prosecution and Defense Bar

The defense of criminal cases is the obligation of the entire bar. Increasingly, however, indigent defense in many cities is almost the exclusive responsibility of public defenders and a very small private bar. The organized bar, at the local, state, and national level, cannot influence popular opinion about criminal justice or foster legislative change if its members are unaware of the problems facing the criminal justice system in their communities.

The ABA has long sought broad participation by the civil trial bar in the criminal justice process.' 14 Fifteen years ago, the National Commission on Criminal Justice Standards and Goals warned that "[T]here is a need to involve the entire bar in the provision of public defense services, and to avoid the provision of defense services from becoming the realm of a limited clique of practitioners, whether in a public defender's office or a private capacity. " III

The testimony presented to the Committee indicates that in many communities today the civil trial bar does not play any role in the defense of indigent defendants.

I don't know if it is the allure of the big money that private practice has now that distorted the whole law school program or what. But I think that it is very hard to get people to do this who are going to do good quality work, so what you end up for your [court appointed] bar is a lot of lawyers who could not get someone to hire them.... [S]omething has to be done to raise that quality of the lawyers.

(Assistant Public Defender)

As a result, a public defender and small private bar 116 has the almost exclusive responsibility for indigent criminal defense in most cities:

[T1he metropolitan Bar, the major Bar Associations, two of which I am a past president, really have very little... interest [in the] activities [of] the Criminal Defense Bar....

(Private Defense Counsel)


Well, I would say, that those members of the bar who do not participate in the Criminal Justice System, don't give it any thought, one way or the other.

(Trial Judge)


The effective functioning of the criminal justice system is of vital importance to all lawyers because individual rights, as well as community welfare, are so often at stake in criminal cases. Involvement by all segments of the private bar is essential if future bar leaders are to be both aware of the problems facing the criminal justice system and capable of taking an active role in criminal justice reform. The ABA must develop a meaningful way of making broadly based bar participation in criminal justice a reality and not just rhetoric.

6. The Criminal Justice System and the Needs of the Community it Serves

Although the people who comprise the criminal justice system are primarily involved in the resolution of cases, they possess a wealth of knowledge about the causes of crime in their communities and the needs of clients, witnesses, and victims. This knowledge is valuable but must be used more effectively. One important example is child and family services. The earliest possible intervention clearly has great potential to stop criminal careers before they begin, but the relevant services are either deficient or almost non-existent in many cities. The criminal justice community recognizes this problem but not enough is done to make the community aware of it.

Although the criminal justice system may not be able to do much to prevent crime from occurring, judges, prosecutors, and lawyers learn a great deal about the causes of crime and the needs of the community they serve. Collecting and disseminating this valuable knowledge is very much in the public interest and should be a goal of the criminal justice system. The following example is offered as an illustration of this point.

Much crime is committed by this nation's youth, and most adult offenders began their criminal careers as juveniles. Although the Committee did not examine the quality of family services or the juvenile justice system, many of our witnesses offered their views on these topics, emphasizing their belief that providing services for neglected, abused, and delinquent youth could have a significant impact on the incidence of crime. One trial judged noted:

We're breeding family after family born into hopeless circumstances almost predestined to be on the outs in society and to increase the distance between the haves and the havenots. We're going to see a lot more crime.... The kid who is abused at two is likely to be a problem child as a teenager because we're not able to deliver services in the ages between two and thirteen which can really do anything significant to turn that kid's circumstances around.118

Many believe that even the juvenile justice system can do little to rehabilitate the teenager who grows up in poverty without a family structure's An increasing number of children are growing up this way.' 10 Earlier intervention is necessary to prevent criminality.

Even in the cases where it can make a meaningful difference, the juvenile system often suffers from underfunding even more severe than the resource crisis faced by the adult system. 121


Although their focus is on crime already committed, people working within the criminal justice system know much about the social problems that foster crime, as well as the possible means of addressing these problems. The criminal justice system would better serve the community if judges and lawyers would address the social problems in the communities they know so well. In the current structure, these societal problems are often seen as being beyond the reach of the criminal justice system. For example, the defense lawyer strives to secure the release of a drug addicted client, even though that client may have nowhere to go and will likely commit other crimes in order to buy drugs; a judge will sentence someone to prison knowing that the prison conditions are intolerable. There are many variations on this theme. While those working within the criminal justice system may not have the ability to solve these problems, they can contribute significantly towards their resolution by bringing these problems into the public view. The ABA and other bar associations are the ideal organizations to gather this information and disseminate it widely.



1. The Committee also wishes to acknowledge the research assistance and other resources provided by Georgetown University Law Center. We express our appreciation to the Georgetown students who worked with our Reporter, Kathleen M. Burch, Patricia Mariani, Fern E. Fleisher, Giuliana F. Robertson, and Wendy R. Flanagan, and to Peggy Fry, Georgetown's Search Services Librarian.

2. The Committee's Reporter made advance trips to each city to find and interview knowledgeable people working in the local criminal justice system. In many instances, the police chiefs, prosecutors, and public defenders the Reporter contacted designated assistants they felt had the best knowledge of the local criminal justice system. Judges and private defense counsel were selected on the basis of their reputations within the local legal community. No witness was selected on the basis of predetermined positions on criminal justice issues. To insure absolute candor, all witnesses were assured that their identities would not be disclosed in this report.

3. One of the last comprehensive studies of the criminal justice system was the President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society (1967) [hereinafter Katzenbach Commission].

A list of the most important crime commissions and crime studies published both before and after the Katzenbach Commission's report follows. Readers are also directed to the chronological list of crime commission reports published from 1919-1951, which appears in A. Sherry & J. Pettis, Jr.,

The Administration of Criminal Justice in the United States 5-10 (American Bar Foundation, 1955).

The Cleveland Foundation, Criminal Justice in Cleveland (R. Pound and F. Frankfurther ed. 1922);

The Missouri Association for Criminal Justice, The Missouri Crime Survey (The Macmillan Co., 1926);

Illinois Association for Criminal Justice, The Illinois Crime Survey (J. Wigmore ed. 1929);

U.S. National Commission on Law Observance and Law Enforcement (Wickersham Commission), Complete Reports (1931) reprinted in Publication No. 6: Patterson Smith Reprints Series in Criminology, Law Enforcement and Social Problems (1968);

Proceedings of the Attorney General's Conference on Crime (Dec. 10-13, 1934);

Crime in the United States 217 The Annals 1 (1941);

National Advisory Commission on Criminal Justice Standards and Goals, Report on Courts (G. Dix ed. 1973);

E. Kefauver, Crime in America (1951);

W. LaFave, Arrest: The Decision to Take a Suspect into Custody (American Bar Foundation Survey of the Administration of Criminal Justice in the United States) (1965);

D. Newman, Conviction: The Determination of Guilt or Innocence Without Trial (American Bar Foundation Survey of the Administration of Criminal Justice in the United States) (1966);

L. Tiffany, D. McIntyre, Jr. & D. Rotenberg, Detection of Crime (American Bar Foundation Survey of the Administration of Criminal Justice in the United States) (1967);

National Advisory Commission on Civil Disorders, Report (1968) (Kerner Commission Report on the Riots of 1967);

The Report of the National Commission on the Causes and Prevention of Violence, to Establish Justice, to Insure Domestic Tranquility (1969) [hereinafter Violence];

F. Miller, Prosecution: The Decision to Charge a Suspect with a Crime (American Bar Foundation Survey of the Administration of Criminal Justice in the United States) (1969);

F. Dawson, Sentencing: The Decision as to Type, Length, and Conditions of Sentence (American Bar Foundation Survey of the Administration of Criminal Justice in the United States) (1969);

U.S. Task Force on Law and Law Enforcement, The Rule of Law: An Alternative to Violence (A Report to the National Commission on the Causes and Prevention of Violence, Aurora Publishers Inc. 1970).

4. Telephone Survey, at 1. Copies of the Telephone Survey are available for inspection at the offices of the Section of Criminal Justice of the ABA. 5. Forty-five per cent of the American public know that the Miranda decision dealt with the rights of the criminally accused. See The Hearst Corp., The American Public's Knowledge of the U.S. Constitution 25 (A Hearst Report, conducted by Research & Forecasts, Inc., 1987). This is an unusually high recognition factor for a Supreme Court opinion.

6. The Committee's recommendations will be referred to the Section of Criminal Justice and, where appropriate, to the ABA House of Delegates.

7. These numbers are derived from data provided in three government studies, the National Crime Survey (NCS) as reported in Bureau of Justice Statistics, U.S. Dep't of Just., BJS Data Report, 1987, at 8 (1988); Uniform Crime Reports (UCR) as reported in Federal Bureau of Investigation, U.S. Dep't of Just., Crime in the United States, 1986, at 41, 154 (1987); and B. Boland, W. Logan, R. Sones & W. Martin, The Prosecution of Felony Arrests, 1982, at 2 (Bureau of Justice Statistics, U.S. Dep't of Just., 1987). There is no one United States government sponsored survey that tracks all crime and the response to it, although a developing survey (Offender-Based Transaction Statistics) comprehensively tracks felony arrests in 11 states and may someday provide this information. The Committee used a number of different surveys to create a rough idea of the relationship between crime committed and the criminal justice system. One survey tracks victimizations, another tracks reported crime and police clearance rates, and a third far smaller survey tracks what happens after arrest in 37 jurisdictions. The figures reported here take the liberty of combining these three studies to give the reader a sense of the relationship between crime and criminal justice in the United States. This relationship is inexact because each of these studies has its own methodology and tracks different crimes.

The NCS measures the incidence of rape, robbery, assault, personal larceny, household burglary and larceny, and motor vehicle theft. It estimates that in 1986 there were 34.1 million victimizations. BJS Data Report, 1987, at 8. Fewer than two-fifths of NCS crimes are reported to the police. Id. at 32. From 1973-1985 only about one-third of the crimes tracked by NCS were reported to the police. Bureau of Justice Statistics, U.S. Dep't of Just., Report to the Nation on Crime and Justice 34 (2nd ed. 1988).

NCS does not trace what happens after arrest. That information is tracked by the UCR, which collects statistics for eight index offenses as reported to the police. These crimes, listed below, are not the same as those tracked by NCS. Of the more than 13.2 million UCR index offenses known to the police in 1986, only one in five was "cleared" by an arrest.

Number of Offenses Percent Cleared

INDEX CRIMES, 1986 Reported to Police by Arrest

TOTAL 13,210,800 20.7


Manslaughter 20,610 70.2

Forcible Rape 90,430 52.3

Robbery 542,780 24.7

Aggravated Assault 834,320 59.4

Burglary 3,241,400 13.6

Larceny/Theft 7,257,200 19.7

Motor Vehicle Theft 1,224,100 14.8

Arson* 110,732 15.3

*Not all agencies reported full information for arson.

Crime in the United States, 1986, at 41, 154 (Clearance rates express the proportion of cases where a crime that is reported to the police results in an arrest or are otherwise resolved).

Neither NCS nor UCR track what happens after arrest. The information concerning what happens after arrest is based upon a study of 1982 felony arrests in 37 urban jurisdictions. For each 100 adult felony arrests, 49 will not be prosecuted as felonies, either because they were rejected by the prosecutor at screening, referred to a diversion program or other courts for prosecution or dismissed at some form of preliminary hearing. Of the 51 cases that proceed further, 47 result in convictions by guilty plea. Only four of the 100 cases are tried, and three of these result in convictions. For the 50 convictions obtained, 13 are sentenced to more than one year in prison, 13 are sentenced to less than one year in prison, and 24 are sentenced to probation or other conditions. The Prosecution of Felony Arrests, at 2.

On average it will take seven months from arrest to conviction if the case is resolved by trial. Id. at 9.

8. BJS Data Report, 1987, supra note 7, at 60. By the end of 1986, there were approximately 819,395 persons in custody at federal and state prisons and jails. "During the first 6 months of 1987, the Nation's Federal and State correctional population grew by 5%, representing a continuing space demand of about 1,000 new prison beds every week." Id. at 56. " 19 States reported 18,617 early releases in 1985 because of crowding. At yearend [sic] 1984, six States and the District of Columbia were operating their entire prison system under a court order or consent decree concerning crowding and other conditions.... In 25 other states at least one prison was under a court order or a consent decree." Id. at 60. "In 1986, 23% of the jails [in jurisdictions with large j ail populations] were under court orders to reduce the number of people they housed." Id.

9. Id. at 29.

10. Id.

11. Id.

12. The exclusionary rule was first applied to federal proceedings in Weeks v. United States, 232 U.S. 383 (1914) and to state and local proceedings in Mapp v. Ohio, 367 U.S. 643 (1961). The majority in Mapp noted that it was applying the exclusionary rule to state court proceedings because, having earlier ruled that Fourth Amendment protections applied to these court proceedings, it could "no longer permit that right to remain an empty promise." 367 U.S. at 660.

For defenses of the exclusionary rule, see, e.g., Butterfoss, As Time Goes By: The Elimination of Contemporaneity and Brevity as Factors in Search and Seizure Cases, 21 Harv. C.R.-C.L. L. Rev. 603 (1986); George, United States Supreme Court 1983-1984 Term: Highlights of Criminal Procedure, 31 N.Y.L. Sch. L. Rev. 61 (1986); Hunter, Is the Exclusionary Rule a Relic of the Past? Leon, Sheppard and "Beyond, " 12 Ohio N.U.L. Rev. 165 (1985); LaFave, The Fourth Amendment in an Imperfect World: On Drawing "Bright Lines" and "Good Faith, " 43 U. Pitt. L. Rev. 307 (1982); Critique, On the Limitations of Empirical Evaluations of the Exclusionary Rule: A Critique of the Spiotto Research and United States v. Calandra, 69 Nw. U.L. Rev. 740 (1974); Schrock and Welsh, Up from Calandra: The Exclusionary Rule as a Constitutional Requirement, 59 Minn. L. Rev. 251 (1974); Comment, Search and Seizure in Illinois: Enforcement of the Constitutional Right to Privacy, 47 Nw. U.L. Rev. 493 (1952); Allen, The Wolf Case: Search and Seizure, Federalism, and Civil Liberties, 45 Nw. U.L. Rev. 1 (1950); Fraenkel, Recent Developments in the Federal Law of Searches and Seizures, 33 Iowa L. Rev. 472 (1948); Comment, Admissibility of Evidence Obtained Through Unreasonable Searches and Seizures, 25 Colum. L. Rev. 11 (1925).

For examples of criticism of the exclusionary rule, see, e.g., Grano, Probable Cause and Common Sense: A Reply to the Critics of Illinois v. Gates, 17 U. Mich. J.L. Ref. 465 (1984); Posner, Excessive Sanctions for Gouernmental Misconduct in Criminal Cases, 57 Wash. L. Rev. 635 (1982); Attorney General's Task Force on Violent Crime, Final Report (U.S. Dep't of Just., 1981); McGarr, The Exclusionary Rule: An Ill Conceived and Ineffective Remedy, 52 J. Crim. L., C. & P. S. 266 (1961); Peterson, Lau, and Police Practice: Restrictions in the Lau, of Search and Seizure, 52 Nw. U.L. Rev. 46 (1957); Comment, Evidence-Police Regulation by Rules of Evidence, 42 Mich. L. Rev. 679 (1944).

For a presentation of arguments for and against the exclusionary rule see Lushing, The Exclusionary Rule: A Disputation, 7 Cardozo L. Rev. 713 (1986); The Exclusionary Rule Bills: Hearings on S. 101, S. 751, and S. 1995, Before the Subcommittee on Criminal Law of the Senate Committee on the Judiciary, 97th Cong., Ist and 2nd Sess. (1981-82) [hereinafter Hearings].

13. Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Deuelopment and Future of the Exclusionary Rule in Search-and-Seizure Cases, 83 Colum. L. Rev. 1365, 1393 (1983).

14. Id.

15. See, e.g., Morris, The Exclusionary Rule, Deterrence, and Posner's Economic Analysis of Law, 57 Wash. L. Rev. 647, 652-56 (1982).

16. In many cities warrant applications are reviewed "either by a supervising officer or by a prosecutor, or in some jurisdictions by both before they [are] submitted to a magistrate." R. Van Duizend, L. Sutton & C. Carter, The Search Warrant Process 20 (1985) (footnote omitted).

In terms of ensuring constitutional rights, this prosecutor-police coordination has had a positive effect: "Several judges stated that the quality of affidavits had improved since the initiation of prosecutor screening of warrant applications." Id. at 21.

17. 367 U.S. 643 (1961).

18. The Search Warrant Process, supra note 16, at x.

19. An empirical study, conducted in Chicago in 1986, found that the ex-

clusionary rule significantly deters police violations of Fourth Amendment rights. That study was based on a series of interviews with officers and supervisors in the Narcotics Section of the Organized Crime Division of the Chicago Police Department. The study concluded:

While a rigorous quantitative analysis of the rule's effects may never be available, this study suggests that the Supreme Court's skepticism concerning the deterrence rationale is unfounded. According to Commander Ryle and the officers interviewed in this study, adherence to the fourth amendment by individual officers, and the institutional reforms reinforcing that adherence, have been and are likely to remain tied to the exclusionary rule.

Note, The Exclusionary Rule and Deterrence: An Empirical Study of Chicago Narcotics Officers, 54 U. Chi. L. Rev. 1016, 1054 (1987) [hereinafter Note].

20. An often cited example is the law surrounding the search and seizure of containers found in, or traced by the police to, an automobile. See United States v. Ross, 456 U.S. 798 (1982).

21. Police Investigator, Summary of Reporter's Interview.

22. Assistant Police Chief, Summary of Reporter's Interview.

23. Telephone Survey, Tables 10-15, at 17-25.

24. On a 1-5 scale with one being "strongly disagree," the mean score

was 2.80. Telephone Survey, Table 20, at 33.

25. With the same scale the mean score was 2.78. Telephone Survey, Table 19, at 32.

26. Id

27. Id.

28. Id.

29. There was a degree of concern expressed by some prosecutors and

police personnel that there are gray areas in which it is very difficult for

police to know on the spot what judicial decisions allow or do not allow them

to do in the course of searches and seizures. (Police Inspector; Police Lieutenant). This situation, however, was not seen as a major problem today due to a number of Supreme Court rulings in the past several years limiting the application of the exclusionary rule and simplifying the Fourth Amendment standards for lawful police searches and seizures.

30. See Note, supra note 19; The Police Executive Research Forum, The Executive Summary, The Effects of United States v. Leon On Police Search Warrant Policies and Practices (1986); Nardulli, The Societal Cost of the Exclusionary Rule: An Empirical Assessment, 1983 Am. B. Found. Res. J. 585 (1983); National Institute of Justice, U.S. Dep't of Just., Criminal Justice Research Report, The Effects of the Exclusionary Rule: A Study in California (1982); U.S. General Accounting Office, Impact of the Exclusionary Rule on Federal Criminal Prosecutions, Report by the Comptroller General of the United States (1979); Canon, Is the Exclusionary Rule in Failing Health? Some Neu, Data and a Plea Against a Precipitatous Conclusion, 62 Ky. L.J. 681 (1974); Spiotto, The Search and Seizure Problem-Two Approaches: The Canadian Tort Remedy and the U.S. Exclusionarv Rule, 1 J. Police Sci. & Ad. 36 (1973); Spiotto, Search and Seizure: An Empirical Study of the Exclusionary Rule and Its Alternatives, 2 J. Legal Stud. 243 (1973); Oaks, Stuyding the Exclusionary Rule in Search and Seizure, 37 U. Chi. L. Rev. 665 (1970).

31. Davies, A Hard Look At What We Know (And Still Need to Learn) About the "Costs" Of The Exclusionary Rule: The NIJ Study And Other Studies Of "Lost" Arrests, 198,1 Am. B. Fmind. Res. .1. 611 098-@).

31A. Id. at 679 80 (footnote,.,, omitted).

32. Telephone Survey, Table 25, at 43.

33. Id. Testimony from defense counsel adds that, in their view, few outcomes are controlled by the exclusionary rule, although they do report some success in factoring search problems into plea negotiations.

34. See generally W. Shaffir, R. Stebbins & A. Turowetz, Fieldwork Experience 11-22 (1980); E. Babbie, The Practice of Social Research (2d ed.) 345-47; R. Bodgon & S. Taylor, Introduction to Qualitative Research Methods 9-11 (1975).

35. Individual prosecutors approach the exclusionary rule differently. In large cities many prosecutors review cases shortly after arrest to evaluate whether the case has sufficient prosecutorial merit to proceed. One basis for declining prosecution is that the evidence necessary to convict was obtained improperly and will be suppressed if the case goes to court. The scrutiny employed at this early stage varies from office to office. All of the prosecutors who testified at the Committee's hearings screen felony arrests to some extent.

36. See Major Problems section of this report in

An Assistant Public Defender referred to this police practice in drug cases as follows:

[11 think that-for example, we have a highly publicized campaign, [for mass drug arrests] which looks to me like it is based on Hill Street Blues where they went out and decided to roust everyone and hope to find people with drugs. And I think that there are operations like that being carried out without any concern for the Fourth Amendment and that there the idea is to roust as many people as possible, take some drugs off the street, disrupt the drug traffic and maybe have some successful prosecutions, without that much concern about the Fourth Amendment.

37. E.g., K. Brosi, A Cross-City Comparison of Felony Case Processing

16-22 (National Criminal Justice Information and Statistics Service, U.S.

Dep't of Just., 1979).

38. Professor John Kaplan analyzed the effect of the exclusionary rule in

this way:

Probably the major reason for the high political price of the exclusionary rule is that, by definition, it operates only after incriminating evidence has already been obtained. As a result, it flaunts before us the costs we must pay for fourth amendment guarantees. Of course, the command of the fourth amendment itself contemplates less than complete efficiency in criminal law enforcement. The problem is that the exclusionary rule rubs our noses in it. In contrast, a sanction which actually prevents police violations of the fourth amendment would permit many criminals to remain free who would be caught either in a society which had no fourth amendment rights or in a society, such as ours, where the rights are observed so imperfectly. Where guarantees of individual rights are actually obeyed by the police, criminals are not discovered and thus no shocking cases come to public consciousness. When we apply the exclusionary rule, however, we know precisely what we would have found had constitutional rights been violated (because, of course, in these cases they were violated), and we are forced to witness the full, concrete price we pay for these guarantees.

Kaplan, The Limits of the Exclusionary Rule, 26 Stan. L. Rev. 1027, 103738 (1974) (emphasis in original).

39. Judge Malcolm Wilkey, a vocal opponent of the rule, describes this process as follows: "The layman says, 'He got off on a technicality.' The layman is right. If the criminal was sprung by the exclusionary rule, he did get off on a technicality, a technicality whose application breeds disrespect for all law." M. Wilkey, Enforcing the Fourth Amendment By Alternatives to the Exclusionary Rule 21 (1982).

Steven Sachs, a former federal prosecutor, Maryland Attorney General, and a supporter of the rule, describes the process differently:

The rule is also very fragile, especially in today's atmosphere of understandable public outrage at crime and at our perceived inability to do much about it. It is vulnerable to attack because its values are abstract while its price is tangible. It frequently excludes hard evidence, the truth, from trial. It appears to reward the undeserving criminal, whom it sometimes frees because 'the constable blundered.' It seems to give aid and comfort only to the enemy in the war on crime. It makes almost no sense to citizens fed up with crime and impatient with legal 'technicalities' who want to believe that crime would disappear if only courts would stop coddling criminals. That is why the rule, although it has plenty of responsible critics, has become a favorite whipping boy of anti-crime rhetoricians.

Hearings, supra note 12, at 33.

40. See the Major Problems section of this report, infra.

41. This view has been expressed by others across the country. Sachs, in

his testimony before the Senate, stated that the exclusionary rule was "responsible for a virtual explosion in the amount and quality of police training in the last twenty years." Hearings, supra note 12, at 41.

42. Police Inspector.

43. Note, supra note 19, at 1053.

44. Telephone Survey, Table 22, 23, at 37, 39.

45. See generally Hearings, supra note 12.

46. Two Police Lieutenants so noted.

47. Note, supra note 19, at 1046-49. See also R. Van Duizend, L. Sutton

& C. Carter, The Search Warrant Process 112 (1985) (search warrants increased when police commander began using the number of search warrant applications filed as a factor in judging detective performance). 48. ABA Standards for Criminal Justice, Urban Police Function, Standard 1-5.3 (2d ed. 1980).

49. Miranda v. Arizona, 384 U.S. 436 (1966).

50. The debate over Miranda has produced many scholarly pieces over

the years. For works defending Miranda see Y. Kamisar, Police Interrogation and Confessions (1980); Kamisar, Miranda: The Case, the Man, and the Players, 82 Mich. L. Rev. 1074, 1077 (1984); Kamisar, How to Use, AbuseAnd Fight Back With-Crime Statistics, 25 Okla. L. Rev. 239, 255 (1972): Amsterdam, The Supreme Court and the Rights of Suspects in Criminal Cases, 45 N.Y.U. L. Rev. 785 (1970): Schulhofer, Reconsidering Miranda, 54 U. Chi. L. Rev. 435 (1987); Schulhofer, The Fifth Amendment at Justice: A Reply, 54 U. Chi. L. Rev. 950 (1987); L. Baker, Miranda: Crime, Law and Politics (1983).

For articles challenging Miranda see Frey, Modern Police Interrogation Law: The Wrong Road Taken, 42 U. Pitt. L. Rev. 731 (1981); Grano, Miranda v. Arizona and the Legal Mind: Formalism's Triumph Over Substance and Reason, 24 Am. Crim. L. Rev. 243 (1986); Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional Change. 37 U. Cin. L. Rev. 671, 711 (1968); Caplan, Questioning Miranda, 38 Vand. L. Rev. 1417, 1441 n. 118 (1985); Erickson, The Unfulfilled Promise of Miranda v. Arizona, 24 Am. Crim. L. Rev. 291 (1986); Markman, The Fifth Amendment and Custodial Questioning: A Response to "Reconsidering Miranda," 54 U. Chi. L. Rev. 938 (1987).


Those involved in law enforcement have a special responsibility both to protect the public safety and to respect the rights of criminal suspects. This is a difficult balance to strike, and there are many opinions on how best to do it.

But after wrestling with the approach in Miranda for a score of years I am convinced that this case, which sharply skewed the rules of custodial interrogation in favor of the criminally accused, failed to find that necessary balance. It is time for a better approach.

Meese, Square Miranda Rights With Reason, Wall St. J., June 13, 1986, at 22, col.4.

52. See generally Wern-tiel,Miranda Ruling Continues to Fall Under Attack; Some Critics See it as Law Enforcement Barrier, Wall St. J., Sept. 8, 1987, at 72, col.1; Out to Get Miranda, Washington Post, Jan. 25, 1987, at 6, col.1; Dershowitz, Hands Off Miranda-It Isn't Symbolic, It's Basic, L.A. Times, Jan. 25,1987, at5,col.1; Shenon, Meese Seen as Ready to Challenge Rule on Telling Suspects of Rights, N.Y. Times, Jan. 22, 1987, at 1, col.2; Excerpt From the Report to Meese, N.Y. Times, Jan. 22, 1987, at 16, col.4; Shenon, Law Review Article by Meese Assails Rule on Warnings to Suspects, N.Y. Times, Jan. 23, 1987, at 13, col.1; Kamenar, The Defendant's Rights us. Police Efficiency, Pro and Con: The Miranda Ruling, N.Y. Times, Jan. 25, 1987, at 5, col.1; Taylor, Miranda Ruling: Complain, Complain, Complain, N.Y. Times, Feb. 13, 1987, at 18, col.3.

53. In 1986, Professor Welsh White collected the other available data which (though dated) does not show a significant impact:

The great weight of empirical evidence supports the conclusion that Miranda's impact on the police's ability to obtain confessions has not been significant. A study conducted by the Yale Lau, Review in New Haven, Connecticut concluded that "Miranda warnings had little impact on suspects' behavior." Interrogations in New Haven: The Impact of Miranda, 76 Yale L.J. 1519, 1563 (1967). That study, described by the Council of the American Law Institute as "probably the most comprehensive," A Model Code of Prearraignment Procedure 108 (Study Draft No. 1, 1968), based its conclusion on three observations: (1) observations of interrogations of both warned and unwarned suspects indicated that police paradoxically were more successful in obtaining confessions from warned suspects, 76 Yale L.J. at 1563; (2) individual evaluation of each case indicated that warnings were a factor in reducing interrogation success in only 8 of 81 cases, id. at 1563; and (3) review of police records from 1960 to 1966 indicated a 10% to 15% drop in the confession rate, id. at 1564. Figures from other metropolitan areas indicate even smaller changes in confession rates. See Medalie, Zeitz & Alexander, [ Custodial Interrogation in Our Nation's Capitol: The Attempt to Implement Miranda, 66 Mich. L. Rev. 13471 at 1414, Table E-1 (1967-68@ (pre- and post-Miranda confession rate stable at about 40%) [Ed. This study conducted by the Institute of Criminal Law and Procedure at Georgetown University Law Center was the first empirical study of the impact of Miranda.]; Witt, Non Coercive Interrogation and the Administration of Criminal Justice: The Impact of Miranda on Police Effectuality, 64 J. Crim. L. & Criminology 320, 325 (1973) (interrogations conducted in "Seaside City," a pseudonymous subdivision of the Los Angeles metropolitan area, were successful in 690/c of pre-Miranda cases and 675 of post-Miranda cases); Younger, Interrogation of Criminal Defendants: Some Views on Miranda v. Arizona, 35 Fordham L. Rev. 255, 255-60 (1966-67) (confession rate for a sample of Los Angeles County felony cases increased from 40% to 50% after Miranda). Other studies, while not focusing upon the confession rate before and after Miranda, strengthen the conclusion that Miranda has had a minimal effect on law enforcement. See, e.g., Neubauer, Confessions in Prairie City: Some Causes and Effects, 65 J. Crim. L. & Criminology 103, 111 (1974) (1968 data for medium sized central Illinois city indicated that "police are fairly successful in obtaining statements from suspects: over 45% of the felony defendants made a confession"); Robinson, Police and Prosecutor Practices and Attitudes Relating to Interrogation as Revealed by Pre- and Post-Miranda Questionnaires: A Construct of Police Capacity to Comply, 1968 Duke L.J. 425, 464-65 n.90 (police clearance rate unchanged after Miranda); See also Reiss & Black, Interrogation and the Criminal Process, 374 Annals 47 (Nov. 1967) (concluding, based on postMiranda study of field interrogation in high crime rate precincts in Washington, D.C., Boston, and Chicago, that extension of Miranda into field settings would have little effect); Cf. Souris, Stop and Frisk or Arrest and Search, 57 J. Crim. L. Criminology & Police Sci. 251, 263-64 (1966) (Detroit study scrutinizing effect of Escobedo warning found confessions given in 64.711c of completed prosecutions in 1961, and 65.6% of completed prosecutions in 1965).

White, Defending Miranda: A Reply to Professor Caplan, 39 Vand. L. Rev. 1, 19 n.99 (1986).

Earlier studies on the influence of Miranda include Seeburger and Wettick, Miranda in Pittsburgh: A Statistical Study, 29 U. Pitt. L. Rev. 1 (1967). This is the only study that found that Miranda had an impact. The study was retrospectively questioned by its authors based on the possibility of sampling bias. Moreover, Professor Seeburger, a co-author, has stated that the study's central finding was that law enforcement's effectiveness was not significantly impaired as a result of Miranda. White, Defending Miranda: A Reply to Professor Caplan, at 19; see also Kamisar, Landmark Ruling's Had No Detrimental Effect, Boston Globe, Feb. 1, 1987, at 27.

54. See generally U.S. National Commission on Law Observance and Enforcement, (Wickersham Commission), Complete Reports (1931), reprinted in Publication No. 6: Patterson Smith Reprint Series in Criminology, Law Enforcement and Social Problems (1968); Maier and Smith, The Confession Takers, Newsday, Dec. 7, 1986.

55. Telephone Survey, Table 18, at 30. Using a Likert scale of 1-5, with 5 signifying strong agreement and I strong disagreement, the four groups registered a mean score of 3.49. No group registered a mean score disagreeing with this proposition.

56. Telephone Survey, Table 19, at 32. The sample for these two questions were 839 and 830 respectively. The sample differs from question to question because "don't know" or "uncertain" type answers were not included in the total.

57. Telephone Survey, Table 10, Table 13, at 17, 22.

58. Telephone Survey, Table 25, at 43.

59. See infra note 34 and accompanying text.

60. Kamisar, Landmark Ruling's Had No Detrimental Effect, Boston

Globe, Feb. 1, 1987, at 27.

61. Johnson v. Zerbst, 304 U.S. 458 (1938).

62. The right to counsel was first applied to state capital cases in which the defendant was incapable of defending himself or herself in Powell v. Alabama, 287 U.S. 45 (1932) (due process ruling).

63. 372 U.S. 335 (1963). Still later, this right to counsel was held to apply to any case where liberty is taken away. Argersinger v. Hamlin, 407 U.S. 25 (1972); Scott v. Illinois, 440 U.S. 367 (1979).

64. See generally R. Spangenburg, B. Lee, M. Battaglia, P. Smith & A. David, National Criminal Defense Systems Study (U.S. Dep't of Just., 1986) [hereinafter Spangenburg & Lee].

65. See J. Doble, Crime and Punishment: The Public's View 24 (The Public Agenda Foundation, 1987) ("The low esteem respondents expressed for the courts is also reflected in feelings about 'smart, expensive lawyers' who help guilty clients escape punishment as long as they have enough money. ").

66. "Above all, it must be recognized that delay will always be used strategically by attorneys, and that any new rules or provisions will also be put to strategic use. This is the nature of the adversary process." M. Feely,

Court Reform on Trial 187 (1983).

67. See ABA Case Continuance Advisory Board, Criminal Justice Section, Suggested Guidelines For Reducing Adverse Effects of Case Continuances and Delays on Crime Victims and Witnesses 15-21 (1986).

68. N. Jacobs & E. Chayet with C. Meara, Bang the Gavel Slowly 225

(Criminal Justice Center, John Jay College of Criminal Justice, 1986). This report also noted that court delay is not a new issue, having been the subject of the convening speech of the 1891 ABA annual meeting. Id. at 9.

69. A 1985 public opinion sample showed that 57% of those responding believed that our system of justice favors the rich while only 39% believe it treats all Americans equally. P. Begans, ABC News/Washington Post Poll, Survey Nos. 0196 & 0197 (June 1985) (reprinted in U.S. Dep't of Just., Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics 1985, Table 2.25, 163 (1987)). Also, a recent study of public sentiment noted the following comment: "A man from Atlanta said, 'The system has so many loopholes that if a good attorney is paid enough money, he can get you off....... J. Doble, Crime and Punishment: The Public's View 24 (The Public Agenda Foundation, 1987).

Criminal defendants themselves frequently harbor serious doubts about their court-appointed attorneys:

Often defendants view their lawyers (either public or private) with suspicion, if not bitterness. This is particularly the case with court-appointed attorneys, whom the defendants consider just another government-paid attorney. Some defendants think the public defender win not work hard on their case because he will get paid whether he wins or not. To others, the defense attorney is ambitious to become a judge or prosecutor and therefore does not want to antagonize the court system by fighting too hard. Overall, then, many defendants view the public defender as no different from the prosecutor.

D. Neubauer, America's Courts and the Criminal Justice System 198 (1979).

70. Dean Norman Lefstein, introduces his study of criminal defense services with the following: "Overall, there is abundant evidence in this report that defense services for the poor are inadequately funded .... [O]ur nation's goal of equal treatment for the accused, whether wealthy or poor, remains unattained. " Criminal Defense Services for the Poor (ABA Standing Committee on Legal Aid and Indigent Defendants, 1982).

71. See generally D. Neubauer, America's Courts and the Criminal Justice System 200 (1979); J. Levine, M. Musheno & D. Palumbo, Criminal Justice: A Public Policy Approach 237 (1980); Sterling, "Retained Counsel Versus the Public Defender: The Impact of Type of Counsel on Charge Bargaining" in The Defense Counsel 166 (W. McDonald ed. 1983).

72. McConville, Dilemmas in New Models for Indigent Defense, 14 N.Y.U. Rev. L. & Soc. Change 179, 181 (1986) ("Lawyers for the poor are generally held in low esteem. They are regarded as poor lawyers, and it is believed that their ineptness is exacerbated by the institution of plea bargaining.") (footnote omitted); Sterling, "Retained Counsel Versus the Public Defender: The Impact of Type of Counsel on Charge Bargaining" in The Defense Counsel 166 (W. McDonald ed. 1983) ("The general suspicion is that equal justice is not available to rich and poor alike. Rather, it is believed that indigents receive a lower quality of legal service, which results in their being more likely to suffer harsh penal sanctions than similarly situated defendants who can afford to buy good legal talent."); Casper, Did You Have a Lawyer When You Went to Court? No, I Had a Public Defender, 1 Yale Rev. L. & Soc. Action 4 (1971); A. Blumberg, Criminal Justice 103 (1967) ("Published studies conclude that the minority group member, the ethnic, the individual educated in a part-time law school, the son of a laboring father, and the Jew or Catholic are likely to be engaged in individual practice and 'end up doing the 'dirty work' of the bar: personal injury, divorce, criminal work, collections, title searching, etc.' Further, since approximately 90 per cent of those who appear in a criminal court are persons in the lower class, their limited resources will furnish them with the leastqualified lawyers for their defense.") (footnote omitted).

73. ABA Standards for Criminal Justice, Providing Defense Services, Standard 5-1.1 commentary at 5-8 (2d ed. 1980).

74. Lack of adequate resources was cited by over one-half of those sur-

veyed as one of the major problems interfering with effective justice. Tele-

phone Survey, at 54. See also Bureau of Justice Statistics, U.S. Dep't of

Just., BJS Data Report, 1987, at 29 (1988). Nationally, less than 3% of all government spending in 1985 went for criminal and civil justice activities. In comparison with spending for all other government services, spending for criminal justice activities, at .5%, ranked next to last, just slightly ahead of space research and technology.

75. "To lament the increase in crime and at the same time to starve the agencies of law enforcement and justice is to whistle in the wind." Katzenbach Commission, The Challenge of Crime in a Free Society 15 (1967).

76. National Institute of Justice, U.S. Dep't of Just., Assessing Criminal Justice Needs (1984).

77. In 1983, 53% of the American public polled believed cases should be prosecuted to the fullest extent, even if there was a less than 50% chance of conviction. Thirty-five percent of those polled would allow a defendant, with the consent of the prosecutor, to plead guilty to a lesser charge to ensure some level of punishment. The Hearst Corp., The American Public, The Media & The Judicial System 26 (A Hearst Report, conducted by Research & Forecasts, Inc., 1987).

78. Rowan, Plea Bargaining.- A Travesty of Justice, Washington Post, Feb. 2, 1988, at 11, col.5.

Mr. Rowan's views are not unique in this regard. In 1969, the Katzenbach Commission found that "few practices in the system of criminal justice create a greater sense of unease and suspicion than the negotiated plea of guilty." The Task Force on the Administration of Justice, Task Force Report: The Courts 9 (President's Commission on Law Enforcement and Administration of Justice, 1967). Katzenbach took the view that negotiated pleas should be controlled, not eliminated. This was and is the ABA's position. In 1973, however, a commission appointed by the Law Enforcement Assistance Administration called for the elimination of the negotiated plea by 1978. National Advisory Commission on Criminal Justice Standards and Goals, Report on Courts 46 (G. Dix ed. 1973) [hereinafter Courts].

Viewed in historical context, plea negotiation in the 1960s was largely uncontrolled. Implementation of considerable reforms since then have eliminated at least some of the abuses that troubled earlier commentators. Today, plea negotiations are disclosed on the record before the plea is entered, and the terms of the plea are subject to the approval of the court.

79. Plea negotiation would occur even if resources were available to try more cases. "I think we would try them all to juries if we had to. But, I think that experience has shown in other jurisdictions that a large percentage go ahead and plead guilty anyway even with no concessions." (Prosecutor)

Each side evaluates the relative strengths and weaknesses of its case and then assesses whether a negotiated disposition is preferable to taking the risks that always exist when a case is tried to a jury. See generally H. Miller, W. McDonald & J. Cramer, Plea Bargaining in the United States (National Institute of Law Enforcement and Criminal Justice, 1978) (recognized as the definitive study on the subject).

Plea negotiation is not a recent phenomenon. Evidence shows that pleas were being negotiated in this country as early as the mid-nineteenth century, long before dockets became crowded. The Wickersham Commission noted that negotiation was widespread in 1929. U.S. National Commission on Law Observance and Law Enforcement (Wickersham Commission), Report on Prosecution 97 (1931).

80. Seventeen years ago, the Supreme Court noted that plea bargaining is "[A]n essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities." Santobello v. New York, 404 U.S. 257, 260 (197 1). The ABA has developed extensive standards concerning the bargaining process. See ABA Standards for Criminal Justice, Pleas of Guilty, Standard 14-1.1 to 14-3.4 (2d ed. 1980). 81. Separate statements provided by three Defense Counsels, three Prosecutors, and a Judge.

82. Plea bargaining "to move cases quickly" was considered one of the least significant problems affecting job or system performance. Telephone Survey, Tables 10, 13, at 17, 22.

83. Telephone Survey, Table 24, at 41,

84. McConville and Mirsky, Criminal Defense of the Poor in New York

City, 15 N.Y.U. Rev. L. & Soc. Change 581 (1986); Sprangenberg, Why We Are Not Defending the Poor Properly, 1 Criminal Justice 12 (1986); N. Lefstein, Criminal Defense Services for the Poor (ABA Standing Committee on Legal Aid and Indigent Defendants, 1982); ABA, Gideon Undone: The Crisis In Indigent Defense Funding (J. Morgan ed. 1982); National Legal Aid and Defender Association, The Other Face of Justice (Report of the National Defender Survey, 1973).

85. Summary of Reporter's Interview.

86. A private defense counsel added:

I just think that the public defenders in this community ... are overwhelmed. If I think I'm overwhelmed, at least mine is a matter of choice, and a matter of economics. Theirs is not a matter of choice. Their cases are [at] an unmanageable level ....

87. The National Advisory Committee on Criminal Justice Standards and Goals, Report on Courts, Standards 13.12 (1973); National Legal Aid and Defender Association, Guidelines for Negotiating and Awarding Government Contracts for Criminal Defense Services (1984).

Emphasis should be placed on the fact that these guidelines set the maximum conceivable caseload that an attorney could reasonably manage. These numbers are unrealistic in the absence of ideal support conditions or if the attorney is carrying any number of serious or complex cases or death penalty cases.

88. The major problem is the lack of public defenders. The only answer is for the State to grant more money to the Public Defender System . ... With more public defenders, cases would be disposed of more quickly; now, we schedule 250 cases a week.

(Prosecutor, Summary of Reporter's Interview)

89. By the end of 1984, six states and the District of Columbia were operating their prison systems under a court order or consent decree concerning overcrowding and other conditions. In 25 other states, at least one major prison was under a similar court order or a consent decree. Bureau of Statistics, U.S. Dep't of Just., BJS Data Report, 1987, at 60 (1988).

90. Prosecutor, Summary of Reporter's Interview.

91. Although difficult to gauge, there is at least some thought that, at

times, cases are dismissed on a claim that the search was unlawful, when the real reason may have been a desire to remove the case from the system. See generally Note, The Exclusionary Rule and Deterrence: An Empirical Study of Chicago Narcotics Officers, 54 U. Chi. L. Rev. 1016, 1054 (1987).

A prosecutor indicated that if he took all the drug and gun cases referred to him for prosecution, the system would come to a standstill.

92. See supra note 36; "[1] have read too many police reports where by clients abandoned the contraband right in front of the police officer and I just don't believe that happens." (Assistant Public Defender)

93. The Committee's views were confirmed by a recent national survey in which prosecutors stated that poor police work was a relatively minor problem in the drug control effort, but that, in that context, they "overwhelmingly targeted" Fourth Amendment violations as a concern. These prosecutors also believed that current enforcement measures are largely ineffectual at controlling drug trafficking. "A mere I percent think [massive street arrest operations] have any permanent effect." Coyle, Prosecutors Admit: No Victory in Sight, Nat. L. J., Aug. 8, 1988, at S2, col.2.

94. Kerr, Koch Seeking 775 More Police Officers for an Anti-Drug Blitz, N.Y. Times, Aug. 10, 1988, at 1, col.2.

95. In another city, a trial judge testified that the drug cases have maintained a steady 60% share of the docket for several years.

96. U.S. Dep't of Just., News Release, DOJ 88-010 (Jan. 21, 1988).

97. Bureau of Justice Statistics, U.S. Dep't of Just., Report to the Na-

tion on Crime and Justice 50 (1988).

98. U.S. Dep't of Just., BJS Data Report, 1987, at 20 (1988).

99. A Prosecutor stated that "at least 60% of crime is drug-related;" a

member of a Crime Commission stated that a "huge percentage" of cases, which are not specific drug charges, are drug-related; a Police Lieutenant stated "I think drugs have a strong influence on crime .... If and when we reduce the number of people who are dependent on drugs, I think you will see a reduction in the amount of crime." An Assistant Chief of Police remarked on the intermingling of drugs and gangs. He stated that because of the large profit margin in drug distribution, gang members have become entrepreneurs, using an increasing amount of violence to secure their profit margin.

100. In a front page article, the New York Times reported, "Law enforcement specialists say corruption within the American criminal justice system is more widespread now than at any time since Prohibition because of the explosion in the power and profits of the multibillion-dollar illicit drug industry." Shenon, Enemy Within: Drug Money is Corrupting the Enforcers, April 11, 1988, at 1, col.5.

101. Assistant Public Defender.

102. The ABA Section on Criminal Justice established the Victim's Committee in 1976, which has since been very active in the area of victim's rights. Legislation has been passed in many jurisdictions providing compensatory relief for victims, as well as the right to participate in the sentencing process or the plea negotiation process. Also, most larger prosecutor's offices have victim-witness units to offer information and assistance to victims.

103. Telephone Survey, at 24.

104. But on any floor, where there are courts and you see the witnesses who [are] subpoenaed and the victims who are subpoenaed to be there at 8:30 or 9:00 sitting in the hallway and judge takes the bench at a quarter to 10:00 and the district attorney, unfortunately oftentimes has 18 cases to deal with that day and does not have time to spend five minutes at most with the witness and make them feel a little bit human. They seem to be treated, unfortunately, as if they're just a necessary ... inconvenience to all of the participants. That is really sad.

(Assistant Public Defender)


But probably people come away from the system thinking there has been an injustice when there really hasn't if it were explained well.

(Trial Judge)

105. President's Task Force On Victims of Crime, Final Report (1982). See also Spencer, Perspectives On Proposals For A Constitutional Amendment Providing Victim Participation In The Criminal Justice System: A Symposium, 34 Wayne L. Rev. 1 (1987).

106. Victim's Rights Symposium, 11 Pepperdine L. Rev. 1 (1984).

107. Policy makers and the public are particularly concerned about:

-What happens to accused offenders when charges are brought against them and their cases are heard in court; -Whether they are released on "technicalities;-Whether they are allowed to plead guilty to lesser charges, thus not receiving the full measure of legal sanctions due to them for the crimes they have committed;

-Whether they delay court proceedings through legal maneuverings that discourage witnesses and victims from continued participation in the prosecution;

-Whether the sentences received and served by convicted offenders reflect the seriousness of the crimes.

BJS Data Report, 1987, at 37.

108. Out of 845 individuals surveyed, 563 believed that the public does not understand or respect their roles in the criminal justice system. Sixtysix percent of these respondents attributed lack of understanding to a public largely uninformed about the criminal justice system. Also cited were negative or distorted media presentations (17%); too great an expectation for the system's ability to control crime by the public (10%); public dislike of lawyers (5%); and other reasons (2%). Telephone Survey, Table 27, at 47.


The Commission finds, first, that America must translate its well-founded alarm about crime into social action that will prevent crime. It has no doubt whatever that the most significant action which can be taken against crime is action designed to eliminate slums and ghettos, to improve education, to provide jobs, to make sure that every American is given the opportunities and the freedoms which will enable him to assume his responsibilities. We will not have dealt effectively with crime until we have alleviated the conditions which stimulate it. To speak of controlling crime only in terms of the work of the police, the courts, and the correctional facilities is to refuse to face the fact that widespread crime implies a widespread failure of society as a whole.

Katzenbach Commission, The Challenge of Crime in a Free Society 15 (1967).

110. American Violence and Public Policy: An Update of the National Commission on the Causes and Prevention of Violence 9 (L. Curtis ed. 1985).

111. Id. at 222.

112. One commentator on public opinion noted the conflict between public and professional perceptions:

For criminal justice planners, prosecutors, judges, and law enforcement officers, key issues involve the apprehension of criminals, or the punishment of offenders, or overcrowded prisons. But citizens see the issue from a different framework; to them, the most important goal is to prevent crime in the first place. People do not think about criminal justice in terms of prison overcrowding or the backlog in the courts or the employment of police. Citizens define criminal justice in terms of protection and prevention.

J. Doble, Crime and Punishment: The Public's View 17 (Public Agenda Foundation 1987).

113. A trial judge noted:

The public attitude that we ought to be able to make the streets safe [exists] because that is an appealing and simplistic analysis: "If you just lock this guy up, he can't hit me over the head. " That attitude ignores the more serious question of "what turned that person into the person that he is". . . I don't think I'm doing anything about the crime problem and I don't know how to convince the public that they ought not be looking to me to do something about the crime problem.

(Summary of Reporter's Interview)

114. The ABA encourages the civil bar to represent criminal defendants:

By encouraging the significant number of lawyers who are now active in the civil courts to obtain training and experience in criminal practice, and to make themselves available and willing to undertake the defense of criminal cases, the bar will make a significant step toward making certain that competent counsel is provided. At the same time, the participation in the criminal justice system of lawyers whose practice is largely in the civil courts will help avert the undesirable professional isolation of criminal trial specialists. The civil lawyer's familiarity and acquaintance with the procedures and problems of the administration of justice may also encourage the lawyer to play a larger role in the reform and improvement of the criminal law and its processes.

ABA Standards for Criminal Justice, The Defense Function, Standard 41.5, commentary at 4-20 (2d ed. 1980) (footnote omitted).

115. Reports of the National Advisory Commission on Criminal Justice Standards and Goals, The Courts 252 (1973).

116. The private criminal defense bar to a large extent has been isolated from the civil and commercial bar. Financial constraints, including very low fees for courts appointed cases, make the practice of criminal law a very difficult enterprise. See P. Wice, Criminal Lawyers: An Endangered Species (Sage Publications, 1978).

117. Between 1980 and 1983, thirty counties abandoned private counsel systems and switched to public defenders, while only eight did the reverse. Spangenberg & Lee at 37.

118. Summary of Reporter's Interview.

119. There are people like that who are basically being written off. And they are being written off at fairly early ages. Again, coming from these unwed teenage mother situations. When you have thousands of people all over this city getting caught up in waves of that kind of problem, the criminal system is

just completely too late in trying to cope with it.

(Public Defender, Summary of Reporter's interview)

120. The Committee for Economic Development has published a statement by the Research and Policy Committee entitled Children in Need: Investment Strategies for the Educationally Disadvantaged, which states that more than one-fifth of our nation's children live in poverty, and a third grow up in ignorance:

As a group, children are now the poorest segment of the nation's population. They are nearly seven times as likely to be poor as those over sixty-five.

Id. at 8-9.

The statement concludes:

[T]he United States is creating a permanent underclass of young people for whom poverty and despair are life's daily companions .... They cannot attain the living standard of most Americans because they are trapped in a web of dependency and failure.

Id. at 2.

121. Regarding the juvenile justice system, a prosecutor commented to the Reporter that the juvenile justice system in some cities:

[It's] a joke .... AU we're doing in the juvenile justice system is creating disrespect. There's no deterrence at all there because people get so many "bites at the apple" for egregious conduct, particularly violent crime. That system is nothing more than a paper-shuffling operation at this point, preparing people for future adult criminal conduct.

@Prosecutor, Summary of Reporter's Interview)

A member of a larger city crime commission added,

The huge need that all the professionals in the field talk about. over, and over, is the lack of any kind of treatment for the juvenile sexual abuser, which, evidently, the research shows clearly is going to be the adult sexual abuser.



(Barbara E. Smith Ph.D.)

The survey was designed by project staff, under the supervision of members of the ABA Criminal Justice Section's Special Committee on Criminal Justice in a Free Society. It was pretested on eight practitioners across the country and revised as indicated by the pretest....

Sampling Frame

A stratified random sample was drawn. Using the most recently available United States census data, counties in the United States were listed according to population size in three categories: 25,000 to 199,999, 100,000 to 249,999, and 250,000 and up. Using a random number, every "nth" county was selected from within each state weighted to select more counties from among those with a population of at least 100,000. In addition, a check was made to ensure that all major metropolitan areas were included on the list and were added as needed. Sampling continued until the desired number of respondents were interviewed.

The preference to larger counties was based on the fact that larger counties, and especially major metropolitan areas, experience a disproportionate amount of the crime problem, and therefore, were more likely to report problems with the criminal justice system.

Once the counties were identified, we selected names of the individuals and letters were sent asking them to participate in the study. For each randomly selected county, we identified the name of the prosecutor by using the latest available directory of The Prosecuting Attorneys published by The National District Attorneys Association in 1987. If he or she was no longer in office when we telephoned, we attempted to interview whomever was currently in that position. The name of the head of the public defenders' office was identified by using the 1985/86 edition of The Directory of Legal Aid and Defender Offices in the United States, and the name of the chief of police was ascertained by using the 1986 edition of The National Directory of Law Enforcement Administrators and Correctional Agencies. As with prosecutors, if the person originally identified no longer held that position, we attempted to interview the person currently in the position.

To sample private attorneys, we randomly selected every "nth" name from among medium- to large-size cities from the 1986 membership list of the National Association of Criminal Defense Lawyers. A similar procedure was employed with judges serving in federal trial courts by using the 1986 edition of The Bureau of National Affair's Directory of State Courts, Judges, and Clerks.

Response Rates

Actual refusal rates were very small, only 2 percent refused to be interviewed. However, there were a number of individuals whom we were never able to contact, despite numerous telephone calls. Of our original sample, we were able to interview 58 percent of our total sampling frame.

Demographics of the Respondents

Those surveyed were asked several background questions. Police were asked the number of officers in the department and their annual budgets. Their responses are reported in Table A-1. Prosecutors' responses to the number of assistant prosecutors in their office and their annual budget are listed in Table A-2. Similar results for the public defenders surveyed are in Table A-3. Number of judges serving in the felony courts as reported by the judges surveyed appear in Table A-4. All of those surveyed, with the exception of private attorneys, were asked to report the number of years they have been the chief of police, prosecutor, head of the public defender's office, or a judge. Their responses are contained in Table A-5.


Number of Police Officers in Department and Annual Budget

Number N=250

20 or less 20% (54)

21-50 25% (66)

51-100 19% (51)

101-150 6% (15)

151-200 5% (12)

201-300 7% (19)

301-500 8% (20)

501 or more 11% (28)

Annual Budget


$150,000 or less 4% (11)

$150,001-299,999 4% (10)

$300,000-500,000 5% (14)

$500,001-999,999 12% (31)

$1,000,000-2,000,000 21% (53)

$2,000,001-5,000,000 19% (50)

$5,000,001 or more 35% (90)



Number of Assistant Prosecutors and Annual Budget

Number N=245

1-5 37% (91)

6-10 16% (39)

11-20 16% (40)

21-50 18% (43)

51 or more 13% (32)

Annual Budget


$150,000 or less 14% (32)

$150,001-299,999 16% (36)

$300,000-500,000 14% (33)

$500,001-999,999 14% (31)

$1,000,000-2,000,000 16% (37)

$2,000,001-5,000,000 13% (31)

$5,000,001 or more 12% (28)




Number of Assistant Public Defenders and Annual Budget

Number N=45

1-5 36% (16)

6-10 20% (9)

11-20 13% (6)

21 or more 31% (14)

Annual Budget


$150,000 or less 16% (7)

$150,001-299,999 7% (3)

$300,000-500,000 16% (7)

$500,001-999,999 2% (1)

$1,000,000-2,000,000 13% (6)

$2,000,001-5,000,000 24% (11)

$5,000,001 or more 22% (10)



Number of Judges on the Bench

Number N=233

1-5 31% (72)

6-10 31% (73)

11-20 23% (53)

21 or more 15% (35)



Number of Years in Position,

Prosecutors, Public Defenders, Police Chiefs, and Judges

Number N= 790

1-5 44% (349)

6-10 30% (239)

11-15 13% (99)

15 or more 13% (103)




Samuel Dash

Professor of Law

Georgetown Univ. Law Center

Committee Chairman

Hon. Jerome Farris

U.S. Circuit Court Judge

Ninth Circuit Court of Appeals

Wayne R. LaFave

Professor of Law

University of Illinois

Norman Lefstein, Dean

Indiana University School of Law

Section Chairperson 1986-87

James R. Neuhard

State Appellate Defender

State of Michigan

Hon. Janet Reno

Dade County State's Atty.

Dade County, Florida

Michael Ross, Attorney

LaRossa, Mitchell and Ross

New York, New York

Hon. Maurice T. Turner, Jr.

Chief of Police

District of Columbia

Hon. John K. Van De Kamp

Attorney General

State of California

Steven H. Goldblatt

Professor of Law,

Georgetown University Law Center

Reporter to the Committee



Terence MacCarthy, Exec. Dir.

Federal Defender Program for the

Northern District of Illinois

Section Chairperson

John M. Greacen, Clerk

U.S. Court of Appeals-4th Circuit

Immediate Past Section


Professor Sheldon Krantz

San Diego, California

Section Chairperson-Elect

Michael Bender, Attorney

Denver, Colorado

Section Vice Chairperson

Andrew L. Sonner

State's Attorney

Montgomery County, Maryland

Section Secretary

Lori Levin

Assistant State's Attorney

Cook County Illinois

Section Assistant Secretary

Richard H. Kuh, Attorney

New York, New York

Section Delegate to the

House of Delegates

Hon. Maxwell Heiman, Judge

Superior Court

State of Connecticut

Board of Governors Liaison

Laurie Robinson, Director

ABA Section of Criminal Justice

Elizabeth Harth, Administrator

ABA Section of Criminal Justice