'Case Dismissed': The Unreasonable Leniency of American Justice

Crime waves have followed every great war. Are our American courts any better prepared to protect the community against the gangsters who flourished in 1919 and may flourish again?

IN 1924, about five years after World War I, an almost unbelievable armed invasion by gangsters occurred in Cicero, Illinois. This city of 70,000 inhabitants fell to the control of Al Capone and his mobsters. Two years later a rival gang invaded Capone's stronghold: eight cars full of hoodlums, armed with shotguns and machine guns, rode through the main business street of Cicero and riddled buildings with bullets and shotgun slugs. Innocent people were wounded. A Chicago newspaper editorial blazoned, "This Is War!"

Soon thereafter the police department of Chicago, second-largest city of the United States, virtually surrendered to the Capone gang. Businesses and industries of all kinds began paying tribute directly or indirectly to racketeers and gangsters. One of the largest industrial cleaners and dyers of Chicago found it necessary to take Al Capone into partnership for protection. His places had been bombed time and again. Senator George W. Norris suggested to President Calvin Coolidge that the Marines be withdrawn from Nicaragua and sent to Chicago to restore law and order.

All this happened to one community within a decade following the last war, and comparable conditions prevailed in many other cities. Prohibition was not the cause: it merely aggravated fundamental weaknesses that existed then and are found now' in many of our large urban centers.

Although crime waves have followed almost every war, and although we have had sufficient warnings that after the present world-wide conflict we can expect unprecedented lawlessness, few communities have heeded the warning. In many cities the law enforcement agencies, upon which our security depends, are helpless to function efficiently. Appointments, promotions, transfers, and even disciplinary action all too often depend upon the influence of ward politicians. Many times the ward committeemen or aldermen control the vote and perpetuate their power through alliances with criminals. As long as such conditions are tolerated, our society will receive inadequate protection.

But there is another aspect of law enforcement which has received too little attention. Even strong enforcement agencies cannot fulfill their responsibility to the public unless they have the backing of the courts. There must be a change in judicial attitudes toward the rights of criminals. There must be a clear-cut and more realistic interpretation of the rights guaranteed by the Constitution, which was never intended as a refuge for the guilty.

Two years ago, in Chicago, a criminal with a record of prior conviction for armed robbery was again found guilty of the same crime. Several members of a family were held prisoners at gunpoint for two hours while their home was ransacked. Edward Damiani, the convict, was sentenced to the penitentiary for one year to life. As happens on innumerable occasions, after his conviction and while an appeal was pending, his bond was reduced by the court from $15,000 to $10,000. Damiani was released June 24, 1943. Only nine days later, on July 3, he committed an armed holdup of a currency exchange in Chicago. Over two thousand dollars was stolen. In addition to guns, he and his associates were armed with a cylinder containing poison gas. The cashier, Agnes Olsen, fifty-two years old, did not comply with the demands of the robbers speedily enough to suit them. Poison gas was released and she died. Innocent people present were terrorized and robbed and an innocent woman was murdered.

It is time to give some thought to the rights of the Agnes Olsens as well as the Damianis. Damiani had his alleged rights of liberty and freedom preserved. But the preservation of Damiani's alleged rights cost the life of an innocent victim. Surely law-abiding people must be protected too.




The strained reasoning by which courts have sometimes freed lawbreakers would be humorous if the results were not so tragic to society. Several years ago officers charged with the duty of enforcing the game laws received information that on a certain passenger train in Cook County, Illinois, there were men who were illegally in possession of hen pheasants Acting on this definite information, the officers boarded the train. They saw some pheasant feathers protruding from the pockets of a passenger, Sigmund De Luca. It would appear that the information previously received by the officers was reasonably substantiated. The officers searched De Luca. They found he was in possession of four hen pheasants in violation of the law. De Luca confessed to the officers that he had killed the birds.

Here was a perfect case establishing a violation of the game law -- perfect to everyone, that is, except the Illinois Supreme Court. In reversing the conviction, the court held that when the officers saw the pheasant feathers sticking out of De Luca's pockets, they could not tell whether they were the feathers of hen pheasants or cock pheasants. Consequently, the officers had no reasonable ground for believing De Luca was implicated in a crime. The search was, therefore, unreasonable and illegal. All evidence of guilt found as a result of the search was held inadmissible in court.

This case is unimportant. But such decisions pave the way for the immunity enjoyed by the hoodlums, thugs, and gangsters who endanger the security of the citizens in many communities The pheasant hen case can easily serve as a precedent to turn murderers loose.

Recently in Chicago a man admitted in Federal Court that over a period of ten years he had embezzled more than $40,000 from the bank in which he had been employed. His salary was $37 a week. In placing the embezzler on probation the judge condoned the stealing. He put the blame on the bank for paying low wages. Again, the case in itself is of no great moment. The judge's remarks would be unimportant if they did not typify a peculiar philosophy that has gradually pervaded our thinking on crime. Having progressed from the situation in colonial, times, where criminals had few rights, we are approaching the equally untenable position that the criminals are entitled to a good measure of predatory privileges.

Although social protection is the principal function of our penal laws, the trend in the administration of criminal justice has been to place more and more emphasis upon the rights of the individual criminal. The idea of protecting society has many times been relegated to a position of secondary importance. This is paradoxical when we observe that the trend in business, and even in the professions, is to restrain individual rights in order to promote the welfare of all. But consistency does not appear to be an American virtue.

We have prided ourselves, with justification, on the strides we have made in the application of science in the field of criminology. We have behavior clinics, diagnostic depots, psychologists, psychiatrists, sociologists, biologists, and social workers who give expert aid, advice, and treatment to the individual after he is convicted of a crime against society. But the scientific efforts of these experts are expended on behalf of only a small minority of the criminals. Those who go free and who menace society to the greatest extent seldom reach the experts for treatment.

No scientific treatment of the individual is possible without the diagnosis -- determination of the guilt or innocence of the person accused of a criminal offense --: but it is here that WO are the most unscientific Through legal technicalities that frequently benefit only the law violator, we have been setting up all kinds of artificial obstacles and barriers that prevent a proper diagnosis The professional criminal preys on society at will He knows that if he is arrested, the odds are that he will never go to trial, let alone be convicted.

Rules of evidence have become confused with constitutional rights. The ordinary meaning of the word "reasonable" when applied to searches and seizures has frequently been misinterpreted as "unreasonable" and the evidence secured has been thrown out of court. Even when a suspect makes a voluntary confession, a court may decide that he was under "mental coercion" and the confession cannot be admitted in court against him. In either event the diagnosis may call him innocent when he should be called guilty. Consequently, a person who is badly in need of treatment, if society is to be afforded adequate protection, will receive no treatment or supervision at all.

Our health laws like our penal laws were also enacted primarily for social protection. But we should not dream of permitting unnecessary obstacles, such as those which are so commonplace in defeating criminal justice, to interfere with a proper diagnosis by health officials. Let us suppose that a physician of the Chicago Health Department receives an anonymous report that at a particular address there lives a person infected with leprosy -- a highly contagious disease. In answer to the call, he proceeds to the address and knocks at the door. Receiving no answer, but believing that he hears someone in the place, he tries the door. It is unlocked. He enters. There he finds a man with all the symptoms of leprosy. After an examination he orders him quarantined and removed from society.

No person in his right mind would protest that, because of the illegal entry by the physician, society should not be protected by the quarantine and medical treatment of the infected man. It would be ludicrous to say that the leper's rights had been violated and he should therefore be returned home.

But if a police officer received an anonymous report that suspicious, heavily armed individuals were living in that same house in Chicago, the results would be entirely different. If he should enter the place without permission, it would be said that the officer violated the constitutional rights of the law violators. Suppose the officer does enter the place and finds an arsenal. He also finds conclusive evidence to establish that the occupants of the house committed a particular armed robbery a few days previously, at which time several innocent persons were killed.

The obvious fact that these persons constitute a menace to the citizens of the community would be considered immaterial. The evidence, in Illinois and in many other jurisdictions, would be suppressed because of an "unreasonable search and seizure" on the part of the police officer. In some courts, the judge might even deliver a patriotic speech about a man's home being his castle and severely admonish the officer for wanton disregard of the criminal's constitutional rights.


Presented by

Virgil W. Peterson was admitted to the Illinois bar in 1930. For twelve years he was a special agent of the Federal Bureau of Investigation and during seven of those years was in charge of the FBI offices in Milwaukee, St. Louis, and Boston. Since April 1942, he has been Operating Director of the Chicago Crime Commission.

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