How Al Capone Got Away With Murder

In the Chicago gangster's day, it was easier for criminals to get their cases thrown out of court. A 1945 Atlantic article describes an American justice system much more lenient than our own.

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In the waning days of World War II, two police officers were patrolling the streets of Chicago when they noticed a suspicious-looking vehicle. They stopped the car and found that it was loaded with stolen goods. The men inside had just committed a robbery; one of them had an existing criminal record. But when the case came to court, the suspects were set free: The judge declared that their arrest, search, and seizure had been illegal.

This story appeared in an outraged 1945 Atlantic article by Virgil W. Peterson, former director of the Chicago Crime commission. In "'Case Dismissed': The Unreasonable Leniency of American Justice," Peterson complained that criminals enjoyed too many legal protections. They could wriggle out of a court sentence simply by showing that they'd been stopped without probable cause -- no matter how guilty they turned out to be. Even Al Capone used these tactics, Peterson wrote, quoting the deputy police commissioner of Chicago:

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.

All of this contrasts sharply with a piece by Jesse Alejandro Cottrell published at today, a close look at New York City's current Stop and Frisk policy. The program allows police to search almost anyone who strikes them as suspicious -- they don't need a warrant, or any excuse other than a hunch. And if they do find a weapon, there's very little that can stop them from pressing charges.

What's changed between the days of Virgil W. Peterson and Michael Bloomberg? The big shift, Cottrell explains, was the 1969 Supreme Court case Terry v. Ohio. The case started out with a scenario much like the one Peterson described: Police in a Midwestern city (in this case, Cleveland) stopped and searched two men who seemed to be acting peculiar. The men were carrying illegal guns. They sued the state of Ohio, arguing that they'd been stopped for no good reason. But the Court decided that the police officers were justified in searching the men for weapons -- that, in fact, their own safety depended on it.

This March, a federal court will rule on whether New York's Stop and Frisk policy takes the Terry precedent too far. Since the program began, police have successfully seized thousands of weapons and arguably prevented many crimes. But in the process, they've searched tens of thousands of innocent people, most of them black and Latino men. The court will soon decide whether the police are using race as a proxy for "suspicious behavior."

As disgruntled as Peterson was back in 1945, he might have had some sympathy for the New Yorkers who feel they're being unfairly targeted today. "It is highly important that we protect the constitutional rights of criminals," he wrote. "But it appears that we sometimes forget that the Constitution was meant to protect the rights of law-abiding citizens as well."