'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?


You say that is absurd? In Chicago several years ago on of the most notorious of the gangsters was Two Gun Louis Alterie. After the gang slaying of his pal, Dion O'Banion, Alterie had been frequenting various places, flourishing guns and challenging the killers of O'Banion to shoot it out with him. The police arrested him in a tight spot, with his gun cocked, ready for action. When he was brought into court, the judge castigated the officers for "wasting their time” in making arrests of that nature. Disregarding the well-known reputation of this gangster, the judge stated that citizens had to carry guns to protect their homes against robbers.

There have been numerous instances in which professional criminals have leased business premises to be used for the sole purpose of violating the law. Everyone is welcome in the place if he goes there to break the law. Special buses and other means of transportation are afforded to visit the place if the purpose is to infract the law. It is open to the public, with a sole exception: the law enforcement officer, the only person who has a legitimate errand in the place. If he attempts to enter, the door is slammed in his face.

From a logical standpoint it would appear that if the rights of anyone were violated it would be those of the police officer. He was wrongfully discriminated against by the establishment! But if the officer shoves aside the doorman and enters the place, it is said that he made an illegal entry. The constitutional rights of the lawbreaker are said to have been violated. Even though the officer obtains conclusive evidence of guilt, it cannot in many jurisdictions be admitted in court against those who respect neither the laws of the state nor the Constitution of the United States.

Such decisions benefit only the professional criminal and habitual law violator. They demoralize the honest and efficient officer of the law and assist the crooked officer. If a dishonest officer is forced to take action against the illegal establishment he is protecting, he can always testify that he had to use force to enter. His record of arrests will present a good defense to a charge of neglect of duty. Because the evidence is always thrown out of court, the hoodlum accepts the inconvenience and expense of having a stooge appear in court occasionally as a part of his operating costs. This arrangement is satisfactory to all concerned— unless the rights of the law-abiding citizenry are worthy of consideration.

Several weeks ago two officers were patrolling the streets of Chicago. They observed an automobile loaded with merchandise. The conduct of the occupants of the car aroused their suspicions. They stopped the car and questioned the occupants. It developed that these men had just perpetrated a burglary. The car was loaded with several hundred dollars' worth of stolen goods. Charges of burglary were lodged against the occupants of the car. When the case was heard in court, a motion to suppress the 'evidence was sustained on the ground that the arrest, search, and seizure were illegal. The two burglars who had committed the burglary one of them had a prior record — were set free. The judge who discharged the two burglars (with the result that they may continue to prey on other innocent, law-abiding citizens) was not responsible for this ridiculous protection of the criminals' alleged rights at the expense of society. He was merely following the decisions that have been handed down by higher courts.

Neither the Fourth Amendment to the Constitution of the United States nor the provisions of the state constitutions prohibit all arrests, searches, and seizures without a warrant. Only unreasonable searches and seizures are prohibited. Nevertheless, the courts have been constantly placing limitations on the definition of "reasonable.” This tendency works to the benefit of the criminal only. It makes it possible for the professional law violator to operate openly and brazenly with a minimum of interference from the law enforcement agencies and with little fear of adverse rulings from the courts.




IT is highly important that we protect the constitutional rights of criminals. But it appears that we sometimes forget that the Constitution was meant to protect the rights of law-abiding citizens as well. Certainly it cannot be contended that a professional criminal has a constitutional right to violate the law. To permit such a person to continue his depredations on society merely because the evidence which conclusively established his guilt was allegedly the product of a theoretically unreasonable search and seizure is nonsensical. It is judging the rights of society from the point of view of the individual the individual criminal.

During Capone's regime, at times Chicago was practically in a state of anarchy. Gang murders were commonplace events. Hundreds of murders were attributed to Capone and his henchmen. Yet, Capone was completely immune. The deputy commissioner of police of Chicago, explaining his helplessness in the situation, said "I've arrested Capone a half dozen times, and each time found guns on him. The same goes for a hundred other gangsters around town. But what happens? The minute you get them before a municipal court judge, the defense attorney makes a motion to suppress the evidence. The policeman is cross-examined, and if he admits he didn't have a warrant for the man's arrest on a charge of carrying concealed weapons, the judge declares the arrest illegal and the hoodlum is discharged."

We sometimes hear indignant protests that such illogical jurisprudence is necessary to protect individual rights. We feel impelled to inquire, as did Judge John F. Perkins of the Boston Juvenile Court, "Which individual? . . . The individual who breaks the law in reckless disregard of other people's safety, or the individual who is behaving himself as he should and is entitled to protection?" Those who have no respect for the Constitution or the rights of others immediately run to the Constitution, and to the laws they break, as soon as they are brought to account for their criminal activities.

Other unrealistic standards are applied in making it possible for the criminal to avoid the legal consequences of his acts Competent physical evidence definitely establishing that the defendant committed a serious crime may be supplemented with a detailed admission of guilt. After the physical evidence has been suppressed on technical grounds the confession may be rejected because of the alleged presence of mental coercion. The culprit may still be released, without restriction or supervision, to prey on the innocent again.

There are elements of coercion in almost all confessions. The criminal may be confronted with such a preponderance of evidence that he may consider further denials of participation in a crime as useless. If the investigating officer has spent a few hours pointing out to the criminal the futility of denying his guilt in the face of the evidence against him, the courts may hold that the criminal was subjected to "mental coercion" and refuse to admit the statement in evidence.

Although a confession freely given affords highly credible testimony, the truth of which may be easily verified, some courts have leaned over backwards in rejecting confessions on the ground of real or imaginary mental coercion. A few judges have indicated that all confessions should be viewed with suspicion and summarily rejected as evidence. Such an attitude ignores reality. Any law enforcement officer of experience has handled hundreds of cases in which confessions have been free and voluntary. On many occasions the culprit will fully confess upon the arrival of the arresting officer. He apparently desires to ease his overburdened conscience by fully admitting his guilt. Yet only a few hours later he may completely deny the voluntary nature of his confession and become imbued with a burning desire to avoid the clutches of the law.

It is ironical that frequently the self-serving statement of a criminal that his confession was not voluntarily made will be given much more credence than any contrary assertion by the law enforcement officer. In a recent dissenting United States Supreme Court opinion, Mr. Justice Jackson spoke out against this unwarranted and anomalous, yet commonplace, tendency. He said, "We know that police standards often leave much to be desired, but we are not ready to believe that the democratic process brings to office men generally less believable than the average of those accused of crime."

In this same case the United States Supreme Court reversed the conviction of a confessed murderer. It was held that even if the defendant did make a confession, it was not voluntary. The holding of the defendant incommunicado during many hours of interrogation without sleep or rest was inherently coercive and violated the " due process" clause of the Constitution. To this opinion Mr. Justice Jackson replied that custody and examination for one hour are inherently coercive and so is arrest itself or detention. Fie maintained that, despite the inherent coerciveness, "the confession, when made, was deliberate, free and voluntary in the sense in which that term is used in criminal law."


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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