American Experiment

by James Macgregor Burns

  As Americans neared the bicentennial of the establishment of the federal judiciary in 1789, the intellectual disarray of the national deliberation over the state of the criminal justice system overshadowed the institutional disorder of the system itself. Lacking were close analyses of the relationship of immediate expedient means, short-run ends, and ultimate goals of criminal justice; careful ordering of policy priorities linked to fundamental values such as liberty and equality; a consideration, both imaginative and empirical, of the wider psychological, legal, and political ramifications of the social pathology of the culture of poverty; a capacity intellectually to transcend expediency and everyday coping in dealing with problems rising under the criminal justice system. Perhaps the most poignant, if not most serious, reflection of this intellectual disarray was a hardly concealed retreat from theory in favor of specific policies aimed at particular problems. Policy analysis probed not the root cause of a problem but what policy measures and tools might produce “at reasonable cost a desired alteration”—typically a reduction in specified forms of crime. There was one great advantage to “incapacitation” (incarceration) as a crime control strategy, James Wilson wrote—“it does not require us to make any assumptions about human nature.”

  In the wake of Watergate, the mushrooming of street crime, and horrendous insults by corporations and by government to people’s health and their natural environment, there still was no grand debate over American values and the principles and workings of the criminal justice system. Gone were the days when French and American revolutionists had fought to protect the legal rights of individuals, regardless of social rank or class, against the establishment thinkers seeking to defend the ancient prerogatives of state and church. Gone even were the times, fifty years back, when “legal realists,” often of New Deal persuasion, had jousted with sacrosanct legal principles that, embodied in judicial findings, could be applied “dispassionately” to current problems. Aside from a few intellectual ventures—notably the critical legal studies movement at Harvard and a handful of other law schools—the debate of the 1980s took the typically American form Tocqueville had noted a century and a half before: grandiose rhetoric about vague but compelling principles like “equal justice under law” and numerous small devices for tinkering with the system, with no firm analytical linkage between values, ordered priorities, and specific measures.

  The clouds of rhetoric obscuring the ideological battle did not, however, fully cloak the trench warfare over specific principles and policies. In general, conservatives favored deterrence theories and practices, notably incarceration; in general, liberals supported reformation ideas and measures, notably rehabilitation. These conflicting principles affected choices made and policies pursued across the vast range of the criminal justice system—availability of public defenders, sentencing, parole and probation, indeed the whole gamut of Fourth, Fifth, and Sixth Amendment liberties. In the absence of intellectual clarity, however, these issues were typically settled on the basis of the short run, the expedient, the “practical,” of the “facts” of each case rather than an overarching intellectual framework. Thus, plea bargaining was used by prosecutors and defense attorneys alike as a means to obtain quick, acceptable settlements. Rarely did the question arise as to the greater stakes involved. “If the punishment imposed is usually a ‘normal price’ for the crime and the defendant’s benefit from his bargain is less than he hoped,” Lloyd Weinreb observed, “nevertheless he is institutionally encouraged to believe that he is trading some of his freedom in order not to be deprived of more.” And the easy trading of freedom—freedom from confinement—hardly accorded with this supreme American value.

  By and large during the 1970s the hardheaded men, the practical people, the “tough-minded” pragmatists were in charge of the American criminal justice system. They were not stick-in-the-muds—they called for many a reform to energize the system: more police, more judges, more and bigger jails, capital punishment, “fiat-time sentencing,” severer sentences, various reorganizations of the court and penal systems. Their ultimate recourse in practicality was something no one loved in principle—the jail. For incarceration evaded all the tough intellectual issues and put the lawbreaker in a controlled situation.

  But the inmates had their practicality too. “The warden might control his subordinates,” a student of criminal justice noted, “but together they did not completely control the prison. An inmate subculture with a clearly defined power structure and differentiated roles exercised considerable power of its own. A trade-off between staff and inmates developed: the inmates accepted the general routine of prison life (‘did time’), and in return the staff overlooked systematic violations of prison rules (contraband money, bootleg alcohol and drugs, pervasive homosexuality, including gang rapes, and random violence). Prison violence was frighteningly routine.” On their own turf, someone gibed, the inmates were conducting their own form of plea bargaining.

  Practical, hardheaded men were in charge at upstate New York’s huge Attica prison in 1971: a warden who had worked his way up from the rank of prison guard and won a reputation as a disciplinarian; a seasoned corrections commissioner who would negotiate with inmates up to a point; a worldly governor, Nelson Rockefeller, who preferred to leave “local” crises in the hands of experienced professionals at the scene. Violence had swept New York prisons in recent months and these men knew that Attica, overcrowded with 2,200 inmates, was seething with unrest; they seemed less aware of subtler forces, such as the reaction of Attica’s militant blacks to the killing of their hero, George Jackson, during an alleged breakout effort at San Quentin prison in California. A sudden fracas at Attica opened the floodgates of hatred between the inmates, most of them black, and the all-white guard unit. Hundreds of inmates, sweeping through cellblocks, beat up some of the guards, seized forty hostages, set fire to the chapel and the school. Shortly they formed a governing body and issued a set of demands.

  During four taut and anguished days the inmates and the local authorities negotiated, while Rockefeller stuck to his Albany office and a group of observers, including the journalist Tom Wicker and the civil rights attorney William Kunstler, served as go-betweens. They could not break the deadlock. Suddenly, after inmates replied “Negative - negative!” to what amounted to an ultimatum from the authorities, state police and prison guards armed with rifles and shotguns moved in behind clouds of tear gas. Nine minutes later forty-three persons, including ten hostages, lay dead or dying. Cornered, cowed, stripped naked, surviving inmates were crowded back through tunnels to their cells.

  A few months later, in a poetry workshop for Attica inmates, Clarence Phillips wrote:

  What makes a man free?

  Brass keys, a new court

  Decision, a paper signed

  By the old jail keeper? …

  What makes a man free?

  Unchained mind-power and

  Control of self— Freedom now!

  Freedom now! Freedom now!

  Carter: The Arc of Morality

  The man who succeeded Gerald Ford on January 20, 1977, had swept onto the American political scene like a gust of fresh air during the presidential primaries of the previous winter. A proud “outsider,” an ex-governor from Georgia, Jimmy Carter had bested nationally known Democratic pros like Henry M. Jackson, Sargent Shriver, and Morris Udall in the preconvention battles. Then he had narrowly defeated President Ford— the first time a White House incumbent had been beaten since Hoover in 1932—with an assist from the Watergate albatross hanging over the GOP.

  By inauguration day Carter had acquired a lustrous media image. After years of mendacity and mediocrity in government, now appeared this man of religious conviction and high ethical standards. After years of drift and deadlock in government, a leader of proved competence—competence at running a business and a state, a submarine and a tractor, and those tough primary campaigns, a demanding, clearheaded man—seemed to have stepped forward. Even his appearance—his bluff,
open face creased by a wide smile, his hair style that looked both stylish and rustic, his quick, buoyant ways—set him off from the gray, sedate men in high office.

  To be sure, there was an air of mystery behind the sunny façade. For a man with relatively brief political experience he showed an astonishing flair for capturing nationwide media attention. As an upward striver who, in the judgment of political scientist Betty Glad, had “proved to be a good, but not extraordinary, governor,” he seemed to be aiming a bit prematurely for the top job. A proud and self-confessed “idealist” speaking out in round biblical terms, he said also that he was an “idealist without illusions”—which, as in the case of John Kennedy, appeared to leave him plenty of leeway. He had a knack of seeming both above politics and very canny in political maneuver and combat. He appeared religious but not pious, compassionate but not sentimental, moral but not moralistic.

  If some in the media were put off by his southern Baptist ways—his joyful hymn singing and hand holding in church, his appeals for more love and compassion, his southern accent that seemed to grow thicker the nearer he was to home—many Americans were happy that he was from the Deep South, the first President to have roots in that region for over a century. Surely he would bring fresh regional and cultural perspectives to bear on big government in Washington. People looked to him to transcend the racial conflicts that had wounded blacks, the South, and the nation. And “Solid Southerners” were pleased that at last there was a President who spoke without an accent.

  And now, on inaugural day, he demonstrated afresh his human touch and media appeal when he bounded out of his limousine on the way to the White House and walked down Pennsylvania Avenue hand in hand with the new First Lady and daughter Amy. In office he promptly pardoned Vietnam draft violators—a happy contrast with Ford’s full pardon of Richard Nixon. When Carter fulfilled a campaign promise to keep close to the people by conducting a presidential “town meeting” in a small Massachusetts community, he brought the government home from its Washington remoteness, and incidentally offered a harvest of photo opportunities.

  Carter’s deepest concern was for human rights. This commitment had quickened in his own recent immersion in the struggle for civil rights in the South. He had been slow to enlist in that struggle, he freely admitted, but by the end of his governorship, “I had gained the trust and political support of some of the great civil rights leaders in my region of the country. To me, the political and social transformation of the Southland was a powerful demonstration of how moral principles should and could be applied effectively to the legal structure of our society.” He well knew the view that Presidents had to choose between Wilsonian idealism and Niebuhrian realism, or between morality and power, but he rejected the dichotomy. “The demonstration of American idealism” was a practical and realistic “foundation for the exertion of American power and influence.”

  Carter was publicly pledged to the campaign for human rights. “Ours was the first nation to dedicate itself clearly to basic moral and philosophical principles,” he had said in accepting his nomination for President. In his inaugural address he proclaimed that people around the world “are craving, and now demanding, their place in the sun—not just for the benefit of their own physical condition, but for basic human rights.” His Secretary of State, Cyrus Vance, and his national security aide, Zbigniew Brzezinski—both members of the eastern foreign policy establishment— stood with him in his dedication to a “principled yet pragmatic defense of basic human rights,” as Vance summarized it.

  How apply this noble principle? The President could draw from a broad array of human rights—the heritage of civil and political liberties, such as freedom of thought, religion, speech, and press, forged over the centuries; the right to participate in government, a right much broadened in the Western world during the nineteenth century; personal protection rights against arbitrary arrest and imprisonment, inhuman treatment or punishment, degradation or torture, denial of a proper trial; or a battery of newfound freedoms, such as rights to food, shelter, health care, education. Many of these rights were embodied in the United Nations charter, the Universal Declaration of Human Rights that in 1948 virtually all nations had approved at least in broad terms, and in the Helsinki agreements.

  A week after Carter’s inauguration the State Department warned Moscow that any effort to silence the noted physicist and dissident Andrei D. Sakharov would be a violation of “accepted international standards in the field of human rights.” Dobrynin promptly telephoned Secretary Vance to protest interference in Soviet internal affairs. Undeterred, the Administration appeared to launch a campaign, expressing concern over the arrests of dissidents Aleksandr Ginzburg, Anatoly Shcharansky, and Yury Orlov, receiving a dissident in exile at the White House, planning substantial boosts in funding for Radio Free Europe and Radio Liberty and in broadcasts to Russia by the Voice of America. In mid-March 1977 the President, in an address to the United Nations General Assembly, once again stated his intention to press for human rights globally.

  At the same time Carter was determined to pursue SALT II negotiations, despite warnings that the two efforts would collide. Vance, who had been urging quiet diplomacy as opposed to public pressure on human rights, journeyed to Moscow in late March hoping at least to pick up on negotiations as Ford and Kissinger had left them in Vladivostok, and if possible to move ahead with a much more ambitious and comprehensive plan of the President’s. The Soviets, who had responded to the campaign for the dissidents with more arrests, were in no mood to bargain. After cataloguing alleged human rights violations in the United States and attacking the new SALT proposals as harmful to Soviet security, Brezhnev sent Vance home empty-handed.

  Nothing more clearly reflected the fundamental ambiguity and the later shift in the Carter foreign relations approach than its rapidly evolving human rights policy. What began as Vance’s ambivalent “principled yet pragmatic” posture became increasingly an attack on specific human rights violations that the Kremlin on its side chose to interpret as an onslaught against Soviet society. The American “ ‘defense of freedom,’ ” said Pravda, was part of the “very same designs to undermine the socialist system that our people have been compelled to counter in one or another form ever since 1917.” When Carter contended that he was upholding an aspiration rather than attacking any nation, the Russians tended to suspect Brzezinski’s motives rather than the President’s moralisms. The human rights files in the Carter presidential library make clear what happened: the President’s early Utopian tributes to human rights encouraged Soviet, Polish, and other dissidents and their American supporters to put more pressure on the Administration, especially through sympathizers like the national security aide. At the same time that Moscow was condemning American human rights violations at home, black leaders were complaining to the White House that the Administration was retreating on its promises to minorities.

  Nearer home Carter applied his foreign policy of “reason and morality” with considerable success during his first year in the White House. He and his wife had a long-standing interest in Latin America, had traveled there, and knew some Spanish. He saw in Latin America, according to Gaddis Smith, a “special opportunity to apply the philosophy of repentance and reform—admitting past mistakes, making the region a showcase for the human-rights policy.” Of past mistakes there had been plenty—years of intervention, occupation, and domination. FDR’s Good Neighbor policy had brought little surcease. The CIA-managed coup in Guatemala in 1954, John Kennedy’s abortive invasion of Cuba, LBJ’s intervention in the Dominican Republic, the efforts of the Nixon Administration and the CIA to undermine the duly elected leftist President of Chile, Salvador Allende, and their contribution to his eventual overthrow and death—all these and more still rankled in the memories of Latin American leaders, liberal and radical alike.

  No act of Yankee imperialism was more bitterly recalled than the imposition on the Republic of Panama in 1903 by the United States and its Panamanian “
puppets” of a treaty defining a strip of land ten miles wide connecting the two oceans while cutting Panama in two and giving the northern colossus near-sovereignty in perpetuity over the canal and the surrounding area. Following a bloody fracas between Panamanians and troops of the United States in 1964, negotiations had been dragging along under Johnson, Nixon, and Ford pointing toward the renegotiation of the 1903 treaty. Carter decided to move quickly. He was well aware of the virulent opposition to a settlement by nationalists in both countries. “We bought it, we paid for it, it’s ours and we’re going to keep it,” had been one of Ronald Reagan’s favorite punch lines in the 1976 presidential primaries. Backed up by Defense Secretary Harold Brown’s view that the canal could best be kept in operation by “a cooperative effort with a friendly Panama” rather than by an “American garrison amid hostile surroundings,” Carter and Vance negotiated with Panama two treaties, one repealing the 1903 treaty and providing for mixed Panamanian-United States operation of the canal until December 31, 1999, the second agreement defining the rights of the United States to defend the canal following Panama’s assumption of control on that date.

  The White House then threw itself into the battle for Senate ratification, using the time-honored tools of exhortation, bargaining, and arm twisting. The opposition counterattacked with its traditional devices of delay and diversion. Only a mighty effort to mobilize every scrap of his influence enabled the President in the spring of 1978 to win acceptance of the treaties, and then by only the thinnest of margins and at considerable loss of political capital. So virulent was the opposition that, as Carter glumly noted in his memoirs, a number of senators “plus one President” were defeated for reelection in part because of their support of the treaties.