by Radley Balko
In the Senate, the DC oversight committee was chaired by Sen. Joe Tydings, a Democrat from Maryland. Though Tydings was one of the more liberal members of the Senate, he faced a tough reelection in 1970. Maryland was home to a large, white, wealthy batch of DC suburbs, and many of those suburbanites worked in Washington. If they hadn’t yet been mugged themselves, they probably knew someone who had; at the very least they had read the press accounts of the city’s crime problem. The tougher on crime Joe Tydings could look, the better his prospects for reelection.
Tydings’s committee reported out a crime package of more than three hundred pages. It included court reorganization, no-knock raids and preventive detention, allowing raiding cops to administer on-the-spot urine tests, tougher sentencing guidelines, and an absurd proposal to let prosecutors appeal acquittals.
When Ervin learned of those provisions, he demanded they be removed or he’d mount an effort to kill the bill entirely. Most of them were taken out, or at least they were narrowed. Preventive detention was removed entirely and reintroduced as a separate bill. The no-knock provision stayed in but was slightly altered to require police to show a “substantial probability” that evidence would be destroyed if they were to make themselves known before forcing entry. The change was mostly cosmetic, but at least appeared to make the no-knock warrant more difficult to obtain.7
In December 1969, the package easily passed the full Senate. Perhaps because the idea still wasn’t largely understood outside members of the Nixon administration and a few state legislators and Rockefeller administration officials in New York, there was little objection to the no-knock provision, even from Ervin. But the minor change to the bill’s language would later become very important.8
On the House side, Representative McMillan was working on a DC bill more in line with what Nixon and Mitchell wanted than what had come out of the Senate. McMillan’s hearings on the House bill lasted less than an hour, and only members of the Nixon administration were permitted to testify. When Ervin heard about the House bill, which included everything he’d fought in the Senate bill and worse, he was outraged. He called it “a garbage pail of some of the most repressive, near-sighted, intolerant, unfair, and vindictive” policies he had ever encountered in politics. The bill swept through McMillan’s committee and was approved by the full House. It would be up to a conference committee to decide which vision of crime control would be imposed on Washington, DC.
The Senate reconvened after the New Year for a blitz of important votes. In the chaos of the great crime bill orgy of 1970, many senators would vote on bills that took predatory swipes at civil liberties protections dating back centuries—with little knowledge of what was actually in them. Senate majority leader Mike Mansfield—the highest-ranking member of the Senate after the vice president—was typical. Mansfield said at one point that he was so overwhelmed, he’d just given up on trying to figure out if some of the laws he was voting on were constitutional. He said he’d just vote for them all and let the courts sort it out.9
The omnibus narcotics bill in particular represented a massive shift of power to the Justice Department. The bill was sponsored by Democratic senator Thomas J. Dodd of Connecticut, father of the future US senator Christopher Dodd. For Nixon, Dodd was a useful confederate. That he was a Democrat from New England helped with building coalitions. He was also a former federal prosecutor who had participated in the Nazi trials at Nuremberg, and he had chaired subcommittee hearings on LSD that led to federal prohibition of the drug. Although Dodd had plenty of anticrime credibility, the senator’s personal commitment to law and order was less than impeccable: three years earlier, he had been censured by the Senate for diverting campaign funds to his personal bank account.10 But that was all the more reason for him to cast his lot with the crime hawks. Also up for reelection in 1970, Dodd needed an issue to make his constituents forget about his personal peccadilloes. He probably thought he’d found it with crime and drugs.
Since the Harrison Narcotics Act of 1913, the federal government’s authority to regulate illicit drugs had mostly been limited to the power to tax them. But in 1969 the Supreme Court struck down the Marijuana Tax Act in a case involving the counterculture icon Timothy Leary. Dodd’s bill took a new strategy. Instead of trying to prohibit illicit drugs by taxing them, Dodd’s bill gave the Justice Department a wide range of new powers to directly enforce federal drug prohibition under the authority of the Constitution’s Commerce Clause.
There was a cruel historical irony at work here. The Commerce Clause gives Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The Founders intended the power to be used only in a very narrow set of circumstances, such as when one state attempts to favor its own businesses or citizens over those of the other states. Over the years the Supreme Court had forged a much broader interpretation—that the Commerce Clause gives Congress the authority to regulate any activity that affects commerce in more than one state. Roosevelt’s New Deal–era justices were especially fond of the interpretation, perhaps most famously in the 1942 case Wickard v. Filburn, in which the Court ruled that the Commerce Clause gives Congress the authority to impose quotas on the amount of wheat a farmer can grow on his own land, even if he’s only growing the wheat for his own use.11 The Court’s rationale was that the wheat the farmer grows for himself is wheat he isn’t purchasing on the market, thus affecting interstate commerce. In 1964 Congress drew on that interpretation of the Commerce Clause to pass the Civil Rights Act, which gives the federal government broad powers to target private businesses that engage in racial discrimination. When those powers were challenged, the Warren Court continued to broaden the Commerce Clause in support of the law, ruling, for example, that Congress has the authority to forcibly integrate any businesses along major highways and interstates or any businesses that sells products made in other states.
But the same broad interpretation of the Commerce Clause that allowed the federal government to integrate private businesses in the South also gave Mitchell and Nixon the authority to wage their war on crime and drugs—a war that over the next forty years had some devastating consequences for large swaths of black America. In the omnibus law, Mitchell would claim for his department all authority to oversee the manufacture, distribution, export, import, and sale of addictive drugs. The bill created a classification system for illicit drugs and vested the classification authority with the Justice Department. That met with fierce resistance from researchers and medical organizations, who believed that authority to determine which psychoactive drugs have medical benefits and which cause harm should belong to the Department of Health, Education, and Welfare or to an agency like the FDA instead of an agency whose primary mission was law enforcement. Their pleas were in vain. A version of the Dodd bill would later become the Controlled Substances Act, the law that has authorized the war on drugs ever since.
IT ISN’T CLEAR WHY ERVIN DIDN’T PUT UP MORE OF A FIGHT against the no-knock raid back in December 1969 with the DC crime bill. Perhaps he simply hadn’t had time to read it or consider its consequences. By the time the omnibus drug bill came to his committee, he attempted to remove the no-knock provision but failed to muster enough support. But on January 25, 1970, the omnibus bill came to the floor of the full Senate. This time Ervin was ready. He forced the Senate to debate no-knock raids for three days. Ervin was the loudest, most indignant of the policy’s opponents. He declared the tactic “incompatible with the essence of liberty,” and proclaimed, “I stand on the proposition that every man’s home is his castle, and that the Congress should not go on record as allowing Department of Justice officials to break into a home like burglars.” Invoking the British common-law cases, he steamed that the tactic was not “using the keys of the king to open all the doors,” but instead “using the king’s axe to knock down the door and break the window.”
For a while, it looked as if Ervin might have had enough support to strip the measu
re from the larger bill. After the first day of debate, even Senator Dodd, the bill’s sponsor, had reservations. Dodd told the New York Times that the no-knock raid was “one of the toughest questions I’ve faced,” and that he was now “almost of an open mind” about it.
But Dodd toughened his resolve, and the no-knock supporters fought back. Dodd forebodingly warned his fellow senators that “the hoodlums are watching us, the dope peddlers are watching us. They want to know if we mean what we say.” Republican senator Robert Griffin of Michigan argued that the no-knock raid was no big deal because twenty-nine states had already legalized it. In truth, only a handful of state legislatures had explicitly legalized the tactic. In most cases, it was simply that a state appellate court had at some point in the state’s history refused to throw out evidence obtained in a raid in which police didn’t knock and announce themselves. That was quite different from what the Senate was considering: explicitly authorizing federal agents to use the no-knock raid as a get-tough-on-criminals tactic.
The Senate’s two party leaders also lined up against Ervin. Republican minority leader Hugh Scott of Pennsylvania lamented, “We are encountering a certain amount of sob-sisterism from people who tend to weep somewhat excessively about the rights of the drug pusher.” Given that the measure’s chief opponent was Ervin, a fierce critic of the Warren Court who supported the Republicans’ crime bill in 1968, the charge was rubbish. Majority Leader Mansfield, meanwhile, returned to his argument of shifting responsibility: he urged the senators to simply put their trust in the courts to properly oversee no-knock warrants.
Still, Ervin had the momentum, and a growing faction of senators were lining up behind him. By January 27, the Times reported, “Senate leaders were predicting that Senator Ervin would win his fight.”
But then Senator Griffin pulled off a brilliant bit of legislative maneuvering. He introduced an amendment changing a single word in the no-knock provision. In the original wording, police could enter without knocking if they could show that evidence “may be destroyed.” Griffin changed the phrase to “will be destroyed.” Technically, that was supposed to make it more difficult to obtain a no-knock warrant. In practice, it made no difference at all. It was a standard that had no real definition, and in any case, in the event that a police officer did hypothetically exaggerate the threat of a suspect destroying evidence to get a no-knock, the mere fact that it was a no-knock raid meant that it was a standard that could never be verified after the fact.
But it was still a shrewd bit of politicking. Even senators who opposed the no-knock raid in general might vote for an amendment restricting its use, just in case the law itself was passed—and several did. Griffin’s amendment passed 44–40. Griffin then revealed his trickery. Once his amendment had passed, he pointed out that the no-knock law in this bill was now identical to the bill the Senate had passed for DC just a month earlier. That one had slipped through without much debate. Any senator voting against this bill would then have to explain why he voted to allow no-knock raids in DC but was now against allowing federal agents to use the tactic in the rest of the country.
On January 28, the no-knock provision passed, 70–15. But there was nothing to fear, Dodd promised. Federal agents would use the new tactic “in the most discriminating manner possible.”12
THE PURPOSE OF A CONFERENCE COMMITTEE IS TO HASH OUT the differences between the versions of similar bills that emerge from the House and Senate. In theory, these committees are made up of the politicians who shaped the bill in each chamber and are expected to put up a fight for the version of the bill authored by their committee. That didn’t happen with the DC crime bill when the House-Senate conference committee began work on it in the spring of 1970. The House version was much tougher than the Senate version, and Senator Tydings completely capitulated on no-knock, preventive detention, and most of the other controversial provisions, sometimes over the objections of four members of his own committee (two of whom were Republicans). In the end, the Senate conferees voted for the House bill and what Ervin called its “garbage pail” of police powers, 5–3. The full compromise bill would return to the full House and Senate one last time before being sent to Nixon for his signature.13
Meanwhile, the citizens of DC began to learn about what was in this bill about to be imposed on their city. They wanted no part of it. DC mayor Walter Washington spoke out publicly against the no-knock and preventive detention measures. A city attorney told the New York Times that no one in the city’s government had been consulted while the bill was being drafted. It was all done by Nixon aides.14 In late May, a group of black civic and religious leaders, including Democratic National Committee chairman Channing Phillips and future mayor Marion Barry, spoke out against the bill. Incredibly, they told citizens of DC that if they caught police breaking into their homes under the new law they should “resist by appropriate action.” What did that mean? One of the community leaders, Julius Hobson, a cofounder of the DC statehood party, suggested greeting the raiding cops with a shotgun. “I would shoot him down in cold blood just like I would swat a fly,” he said. Three other black leaders, all clergy, agreed with him.15 They weren’t alone in that sentiment. During the House debate on the bill, Rep. Bertram Podell, a white Democrat from Brooklyn, said that he too would shoot any police officer who tried to enter his home unannounced.16
But such objections were up against soaring crime in the city. The figures from 1969 in particular were grim. There were 287 murders that year, up from 195 the previous year and just 82 in 1962. Robberies were up 50 percent from 1968, and rapes—incredibly—jumped more than 300 percent. The media piled on. In March 1970, the New York Times ran a long, sensational article about crime in DC. The lead photo showed a woman walking in the dark in front of a notable DC landmark. Embedded in the photo was a drop quote: “You must be out of your mind to be out alone after dark in a neighborhood like this.” The caption under the photo read, “The warning quote above was spoken by a passer-by to a woman in Washington. She looked up—and there was the White House.” The article also borrowed some of Nixon’s war rhetoric. In discussing how some blacks in DC had become distrustful of police, author James Batten (who would later become chairman of Knight-Ridder) wrote, “In the slums of Washington, as in the hamlets of South vietnam, if the natives wish to protect fugitives from the authorities, they usually can succeed.”17
As it turned out, crime in DC peaked before the new crime bills had even passed. By May 1970, crime in the city had fallen for five straight months. At that point, the only Nixon policies that had been implemented in DC were a federally funded methadone program and some funding for additional police officers. The methadone program in particular appeared to be working. But the Nixonites had little interest in taking credit for a treatment program. As Nixon aide Egil Krogh put it to top Nixon adviser John Ehrlichman, “All the liberals need is an argument that if the picture is improving with just the addition of more police and a new narcotics treatment agency, there is no need for the repressive Nixon crime proposals.”18
That sentiment won the day. The Justice Department withheld the Federal Bureau of Investigation (FBI) data showing improved crime statistics for DC until after Nixon signed the DC crime bill into law. The administration then released the numbers and took credit for them. But the Nixonites also continued to keep the results from the methadone program close to the vest.
But while perception of soaring crime in DC continued to attract support for the crime bill as a whole, the no-knock raid was finally starting to get some attention in the media. New York Times columnist Tom Wicker and syndicated columnist Art Buchwald wrote in opposition to it.19 The Washington Post editorialized that the policy treated the city like a penal colony and that it “ought to be opposed by every action appropriate to men who believe in the rule of law.”20 Even conservative prince William F. Buckley Jr. acknowledged the potential for abuse (although he ultimately came down in favor of it).21 Civil libertarians by then generally agreed that
Clark’s opinion in Ker was accepted law and that Nixon’s no-knock proposal didn’t go any further than that. So they were left to oppose the bill on policy grounds. “My honest feeling is that it’s probably constitutional,” ACLU general counsel Norman Dorsen told the New York Times. “But there’s a grave question about the policy behind it.”22
Santarelli says the most convincing argument for the law was that it merely brought oversight to something that was already happening. “We found out that many police officers had been conducting no-knock raids anyway. Then they’d get to court and explain why the exigent circumstances at the scene allowed them to break in without an announcement. So we were letting police make the subjective decision on-site about whether exigent circumstances existed. . . . The no-knock law required someone other than police to make the call about exigent circumstances ahead of time. It brought in judicial scrutiny. Or at least it was supposed to.”
But police could still make a decision at the scene to enter without announcing. At worst, a judge might later suppress the evidence. And even that was rare, because it was easy to fake exigent circumstances. A DC judge would later cynically call the no-knock law “an anti-perjury bill,” explaining that “it excuses the officials from saying they knocked” when they hadn’t.23
The administration might have had an inkling that the tide was turning. In testimony before a House committee in July—at the same time the Senate was again debating the tactic—Mitchell said that without no-knock authority, drug agents would die and “clever and ruthless drug peddlers” could destroy evidence and go free. But what he did next was far more interesting. Mitchell insisted that the very phrase “no-knock raid” was a “catchword” used by people who coddled criminals. Mitchell blamed “erroneous citizens” and “newsmen” for using such sensationalist language. He then asked the committee to start calling the tactic “quick entry,” which he said would be “less misleading and prejudicial.”