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Atlantic Monthly Sidebar

May 1972

The War on Crime:
The First Five Years

Nixon and Mitchell vowed to turn the tide. "Operation Intercept" and three years later, it's their turn to face a fact of life: crime is rising, and law enforcement alone won't stop it.

by James Vorenberg

Five years ago the President's Commission on Law Enforcement and the Administration of Justice--generally known as the Crime Commission- reported the results of its two-year examination of crime and made more than 200 specific recommendations to overhaul our system of criminal justice.

The Commission, for which I served as executive director, had been appointed by President Johnson in 1965, partly in response to Senator Barry Goldwater's introduction of "crime in the streets" as an issue in the 1964 presidential election. But as we met in the White House to accept the President's thanks for our report, politics seemed remote. The Commissions chaired by Attorney General Nicholas Katzenbach, included among its members Democrats and Republicans, prosecutors and academics, the executive director of the Urban League and the vice president of the International Association of Chiefs of Police. It had, nonetheless, been able to reach agreement on what the President described as "the most comprehensive and detailed program for meeting the challenge of crime ever proposed in this country."

The President promptly submitted to Congress proposed legislation that would provide funds to states and cities to carry out the Commission's recommendations for change. Even those of us who had two years earlier been a bit cynical about the reasons for the Commission's creation and doubtful about what it would accomplish were optimistic.

Yet five years later crime is unquestionably a far worse problem for the country than it was then, and our system of criminal justice--the police, courts, and corrections agencies--seems less capable of coping with it. The Department of Justice consoles us with the assurance that although crime is still increasing, the rate of increase is slower. For former Attorney General John Mitchell, who made heavy use of crime statistics in the 1968 presidential campaign, the 30 percent increase in the reported crime rate during the first three years of the Nixon Administration must present a strategic puzzle as he plans the 1972 campaign.

In 1967 the Crime Commission could review the FBI reports of the seven "index" crimes--homicide, rape, aggravated assault, robbery, burglary, larceny (over $50), and auto theft--for 1960-1965 and report increases for the five-year period of 36 percent in crimes against property and 25 percent in violent crime. This was troubling, to be sure, but hardly the uncontrolled rampage about which Senator Goldwater had warned in the 1964 campaign. The Commission noted that because of the post-World War II "baby boom," an unusually large part of the population was between fifteen and twenty-five years of age. Since this group commits most of the serious crimes, about half of the 1960-1965 increase could be attributed to this temporary disproportion. The Commission also suggested that some of the increase in crime might be the result of better reporting by or to the police. Generally, it counseled against overreaction.

But the figures for the last five years of the sixties have convinced all but the most skeptical that something more ominous than population changes or reporting errors is involved. By 1970 the rate of crimes against property had increased 147 percent for the decade and the rate of crimes of violence had increased 126 percent. And the latest FBI figures show that during the first nine months of 1971, there were further increases of l0 percent for violent crimes and 6 percent for property crimes compared with the same period in 1970. In the past five years self-protection has become the dominant concern of those in our cities and suburbs evidenced by the rapid growth of a multibillion-dollar-a-year private security industry and the emergence of the German shepherd as the second most popular breed of dog.

No one can say for sure what accounts for the enormous increase in the danger which Americans face from each other. We do know that those agencies on which we are accustomed to rely for crime control--police, courts, and corrections--seem less capable of that task today than they did five years ago, and many police chiefs, judges, and prison officials openly acknowledge that there is nothing they can do to help. We also know that each year there are thousands of new drug addicts, most of whom are driven by their addiction and the nation's drug policy to prey on their fellow citizens in order to get money to buy heroin. And we have compelling evidence that during the past five years the frustration of poor people and minorities with continued denial of opportunities to improve their lives by lawful means has made reliance on crime an increasingly acceptable alternative. The fifth anniversary of the Crime Commission's report, coinciding as it does with the beginning of a presidential election contest in which crime is once again certain to be a central issue, is an appropriate time to explore why we have done so poorly and what the prospects are for the years ahead.

The Crime Commission sought to show how police, courts, and correctional agencies could both reduce crime and treat people more decently. A review of where these criminal justice agencies stand today indicates virtually no progress on the first of these goals and only spotty progress on the second.

THE POLICE. The principal gains by the police in the past five years have been in lowering the level of hostility between the police and young people, particularly blacks. This progress has taken place despite the fact that President Nixon came into office after a campaign that invited the police and the public generally to blame crime on Supreme Court decisions designed to curb police abuses. Improvement has been especially marked in cities such as Oakland and New York, where the chiefs have made it clear that decent treatment of citizens is a top priority and will be given weight in promotion and assignments of officers. Many police departments now have their own legal offices and are getting advice from the inside on how to respect due process. The Brandeis University Center for the Study of Violence cites better training in community relations as one reason for the decline in disorders in the past five years. Increases in the number of minority-group police officers have also helped, although here the record is mixed. The nation's five largest cities in total have shown a 23 percent increase in black officers in the past five years. Yet some departments, such as Cleveland's and Philadelphia's, have lost ground. Alabama and Mississippi still bar blacks from their state police, and Massachusetts has only two on its 870-man force.

Changes which seem to have improved relations between citizens and the police in many cities have not been matched by new crime-reduction methods. Much of the federal aid to police has gone for such flashy items as helicopters, computerized communications systems, and new weaponry. Yet these have not produced a significant impact on crime. Little progress has been made on Commission proposals that police presence on the streets be increased by hiring civilians for clerical and administrative tasks. (New York City, with 32,000 policemen, has a maximum number of 3500 on the street at one time.) One discouraging indication of how little change has been made in five years is the striking similarity between the chapter on the police in the Crime Commission's 1967 report and the police section of "Planning Guidelines and Programs to Reduce Crime," just released by the Justice Department for use in its eight "high-impact" cities, where a special effort will be made to reduce crime.

The most promising "new" crime-control idea for the police is New York Commissioner Patrick Murphy's neighborhood team system, a blend of the Crime Commission's teams of policemen with the traditional "cop on the beat." Simply stated, Murphy wants to decentralize responsibility so that each neighborhood has its own team of officers who would come to know its crime patterns, its residents, and its potential offenders. The team would then be held responsible for reducing crime in the neighborhood. Murphy's crime prevention and anticorruption strategies overlap, since the team's commanding officer would also be fully accountable (Murphy's favorite word) for any corruption among his men.

Murphy instituted his system in Detroit but left to become commissioner in New York before its results could be tested. He is adopting the same approach in New York; and Chief Jerry Wilson in Washington, D.C., Murphy's protege, believes his own form of this plan is responsible for some reductions in street crime in the nation's capital.

The neighborhood team has probably improved police-community relations in the cities where it is being used. It remains to be seen whether it will also result in significant reductions in crime or whether it will simply provide pressure for incomplete reporting of crimes to central headquarters, a time-honored practice in earlier days when a precinct captain's job depended on keeping a "clean beat."

CORRECTIONS. The same two goals it set for the police--crime reduction and humane treatment--also ran through the Commission's 1967 report on corrections, where, as with the police, it believed that the goals were not inconsistent and could, in fact, reinforce each other. To achieve these goals, the Commission urged a shift from the use of prisons to community treatment of offenders. Its reasoning can be simply summarized: if we take a person whose criminal conduct shows he cannot manage his life, lock him up with others like himself, increase his frustrations and anger, and take away from him any responsibility for planning his life, he is almost certain to be more dangerous when he gets out than when he went in. On this basis, the Commission urged that only the very dangerous should be held in prison. It called for the development of halfway houses, programs to send offenders home under intensive supervision, special school and employment programs, and other forms of nonprison treatment.

In a few places there has been progress in carrying out these recommendations. California has developed an extensive work-furlough program for prisoners and also offers a subsidy to counties, which helps keep the state prison population low by putting more offenders on probation. The number of state prisoners has declined from 28,000 to 21,000 in the past three years. Plans for new prisons have been scrapped and some of the existing ones are being closed.

The boldest approach is that of Jerome Miller, Massachusetts Commissioner of Youth Services. Mr. Miller concluded that his institutions were doing juvenile offenders more harm than good at a per capita cost to the state of $10,000 a year, enough, in his words, "to send a child to Harvard with a $100-a-week allowance, a summer vacation in Europe and once-a-week psychotherapy." Within the next few months he plans to close all his institutions for committed offenders and move the inmates to community based work and education programs. He estimates that only 30 of the 800 juveniles now incarcerated are dangerous enough to be locked up, and he eventually hopes to get these into private psychiatric facilities.

A few other states are moving more cautiously in the same direction. But as a whole the country has continued to place heavy emphasis on prisons. A recent survey by the Center for Criminal Justice at Harvard Law School showed that there are residential facilities outside the walls of traditional prisons for less than 2 percent of adult offenders--and that most of these facilities were set up in the first two years after the Crime Commission's report.

Ironically, the best hope for a move away from incarceration may lie in the system's reaction to the slaughter at Attica. In much the same way that the fear of city riots prodded police chiefs to develop community relations programs in the late sixties, the fear of prison uprisings has forced officials to confront such questions as how many of the 1200 inmates at Attica really had to be in prison.

It is sad but probably true that the fear of riots and the fiscal squeeze on the states are more likely to close down prisons than either a sense of humanity or a desire to prevent crime.

THE COURTS. While there has been some overall improvement in the police in the past five years, and perhaps corrections has held its own, the quality of the adjudication process--the responsibility of the courts--seems clearly to have deteriorated over the same period. Many lower criminal courts look more like factories than halls of justice. More than half of the people in jail in this country are there because they are awaiting trial, not because they have been convicted. Whatever deterrence of crime the threat of penal sanctions might exercise is undermined as thousands of defendants go free, not because they have been acquitted but because courts and prosecutors are too overwhelmed by their work load to consider their cases.

The total number of arrests, the source of the courts' business, increases about 5 percent a year. More defendants are represented by lawyers who are asserting their rights in court, including rights relating to confessions and police searches spelled out by the U.S. Supreme Court during the 1960s.

The result is that a cumbersome process, which had managed to keep moving by herding large numbers of defendants through the courts on guilty pleas without consideration of possible defenses, has been further slowed. And delay begets delay. The only way prosecutors and judges can keep the glacierlike process moving at all is to drop cases or offer concessions to defendants who will agree not to assert their rights. Often the best way for defense counsel to get these concessions is to make repeated motions, seek adjournments, and generally try to drag out the process as long as possible. Even lawyers who do not deliberately seek delay achieve the same result owing to their own overloaded schedules and the courts' inefficiency. The rewards to defendants from this delay are enormous. Ninety-four thousand felony arrests in New York City last year resulted in only 550 trials. The other cases were dismissed or reduced to misdemeanors in return for a guilty plea.

To blame the Supreme Court or defense lawyers who seek their clients' best interests is rather like blaming highway congestion on those who set speed limits and on drivers themselves. If we want the criminal system to be able to handle the present volume of traffic, we must double and triple the number of courtrooms, judges, prosecutors, and defense counsel--and be ready to keep on increasing the number in the future. And even with such increases the system will depend heavily on bargaining for pleas of guilty.

Five years ago the Crime Commission called for resources to enable courts to handle increased traffic, but it also outlined two possible approaches to reducing the traffic. First, most cases involving drunks, first offenders, persons in need of psychiatric or medical treatment, and nondangerous offenders should be handled outside the criminal system. Prosecutors and defense counsel were encouraged to agree on alternative forms of treatment before such cases get to court, thus avoiding court congestion and the destructive effects of pretrial stays in jail. In fact, most of these cases now are disposed of without a formal court decision, but usually only after they have added to the jam in the courts.

Second, for those cases that remain, the Commission urged the courts to adopt modern administrative and business management methods that would avoid repeated appearances and continuances. This recommendation has been ignored, although adopting it would help not only the courts but also the police, since prosecuting witnesses, including policemen, often are required to come to court on five or more separate occasions for a single case. Our society surely has the technology to schedule its judicial business to eliminate repeated appearances, continuances, and delay. The only way to keep delay from being manipulated as part of the bargaining process is to have a system that gives the parties their "day in court"--but not a day every week.

For the past five years crime has been a major national issue. More than $1.5 billion in new federal money has been appropriated for the nation's criminal justice system. One may fairly ask why there has been so little progress.

Much of the answer lies in the inevitable hostility to change in any large bureaucracy. Proposals to substitute halfway houses for high-security prisons and computers for court docket clerks, or to establish new educational requirements for police officers, threaten job security and challenge the propriety and worth of what is being done. When Commissioner Miller in Massachusetts abolished punishment cells for juvenile offenders and allowed them to have long hair, some staff members permitted a series of escapes designed to discredit his administration. Two comments by employees suggest their frustration with the changes: "Years ago you could flatten the kids out and that would be the end of it." "You wonder who's in Jail, us or the kids."

City dwellers have learned recently about the "blue flu that often afflicts police officers who are suspicious of proposed changes. Commissioner Russell Oswald's apparent sense that he had to cater to the views of the guards at Attica--even at the risk of scores of deaths--suggests how powerfully existing values now hold those working in the system. Strong and militant police and correctional officers' unions in the past few years have provided an organization which can mobilize this opposition to change.

Not all of the opposition to reform comes from within the bureaucracy. Many state and city legislative bodies tend to be wary of changes, particularly those that may seem "soft" on criminals or that cost money. And some changes--such as attempts to establish halfway houses or drug treatment centers in residential neighborhoods--have evoked enormous hostility from private citizens.

Notwithstanding these inherent pressures against change, there was a strong sense of optimism in the mid-sixties that something could be done about crime. For the first time the federal government had acknowledged a responsibility to help the cities and states. Local police chiefs, prosecutors, and correctional administrators worked with the Crime Commission from 1965 to 1967, and with the prospect of federal financial aid, began the arduous task of overhauling their agencies.

The year 1968 was a bad one for criminal justice. During the 1968 presidential campaign, Mr. Nixon repeatedly cited decisions of the United States Supreme Court as being the major cause of crime. The result was to provide police officials, prosecutors, legislators and the general public with an easy explanation for the enormous increases in crime in the late sixties. This relieved some of the pressure for change, a process which criminal justice officials were finding more painful and difficult than expected.

It was also in 1968 that the Congress, after a delay of more than a year, finally passed the Safe Streets and Crime Control Act to provide aid to cities and states. As originally proposed, the Act would have given the Justice Department the power to dispense funds directly to criminal justice agencies which carried out the changes such as those recommended by the Crime Commission. But Attorney General Ramsey Clark became embroiled with Congress over Senator John McClellan's insistence that the Act provide authorization for wiretapping and bugging. Clark and President Johnson were strongly opposed to electronic surveillance. [*See Endnote]. However, Johnson's relations with Congress had deteriorated over the Vietnam War, and Clark had emerged as the Republicans' whipping boy in preparation for the 1968 presidential campaign. When the smoke had cleared, the Administration had settled for legislation which not only authorized electronic surveillance but which also substituted "block grants" of federal funds to the states for the broad grantmaking authority in the Justice Department.

The seriousness of this legislative defeat soon became clear. The principal justification for federal aid was that it would provide an incentive for cities and states to make changes in criminal justice agencies. But with block grants the federal government cannot directly push for reform. It simply gives a lump sum to each state to be distributed in accordance with the state's own written plan. These plans are the products of large new state bureaucracies, many of which are controlled by old-line representatives of the state and local police departments, courts, prosecutors, and correctional agencies that need to be changed. Since the state plans are rather general and require only superficial changes in the agencies, much of the money has been spent to preserve the status quo.

Thus, except for a few states where the planning agencies have insisted on substantial change as a condition of funding, there is little to show for the almost one billion dollars that has been spent. Some of the early funds were wasted on military equipment for riot control. In one state a congressional committee found federal funds had been used to send families of law-enforcement officials to college. At a hearing last fall, the Conference of Mayors charged that "there is a wide-spread failure to comply with the spirit of the law as it relates to distributing funds to cities to fight crime." And the former administrator of the Act, Charles Rogovin, has made the drastic suggestion that the Law Enforcement Assistance Administration's funds "be frozen until its house is in shape."

Unquestionably some of the problems are those attendant on any new federal grant program. Some result from the highly political nature of the crime issue. It has been suggested that the eight "high-impact" cities, each of which will receive $25 million in the next two and one half years, were picked with at least one eye on the 1972 election. Perhaps the most fundamental defect in terms of crime control is the lack of research. Largely because Congressman John Rooney of Brooklyn, the chairman of the key subcommittee of the House Appropriations Committee, is suspicious of research, there has been a five-year drought in funds for the research authorized by the original Act. Thus, not much more is known about specific techniques of crime prevention today than was known five years ago, and the prospect for new answers in the next few years is bleak.

Even if every change the Commission called for in police, courts, and correctional agencies had been made, the resulting reduction in crime would probably have been more than offset by increases resulting from the enormous spread of drug addiction. The best present estimate is that there are 250,000 addicts in the United States, of whom between one third and one half live in New York City. Research has shown that the same young people at the bottom of the social and economic ladder who commit the bulk of predatory crime are most likely to become addicts. (Five out of every six addicts in New York City are black; about half are under twenty two years of age.) Their addiction adds to the already great likelihood of their committing crimes the need to raise $25 to $ 100 each day to buy heroin. The results have been explosive. Some cities are reporting that almost half of those in jail are addicts. One judge in Washington found that 75 percent of the defendants brought into court on felony charges were addicts.

Five years ago, the Crime Commission recognized addiction as a major source of crime, but as four dissenting members of the Commission noted. the majority was unwilling even to explore alternatives to the present drug enforcement policy, which, by requiring addicts to get their heroin illicitly, puts enormous pressure on them to rob, steal, prostitute themselves, or sell drugs to raise money. Recently as an extension of this policy, we have negotiated with Turkey, France, and Mexico and other drug-producing countries in an attempt to cut off the supply at the source. This has been combined with attempts to stop drugs at the borders of the United States. The most dramatic example was "Operation Intercept," aimed at persons bringing marijuana across the Mexican border, and some experts think that the only result was a temporary increase in the price of marijuana in the United States and a switch by thousands of marijuana users to heroin. In any event, it is perfectly clear that heroin and other drugs are still plentiful and that federal law enforcement has served primarily to keep the price at a high level, with the resultant pressure on addicts to commit crimes to support their habits.

The most significant change in drug policy in the past five years is that at the same time that several agencies of the federal government are devoting enormous resources to the apparently futile effort to stop heroin traffic, the country has moved quietly to a policy of dispensing another addictive drug--methadone--on a maintenance basis. Labeled as "experimental," methadone projects now exist in cities and towns all over the country. Many such projects are funded by the Department of Health, Education, and Welfare and all require a federal permit.

It was originally thought that methadone in some mysterious way provided a "blockade" to the effects of heroin, but it is now clear that many addicts take heroin and methadone (and other drugs) interchangeably. Both drugs are addictive: both can give a "high" if taken in large doses; and both can probably be given at sustaining dosages that would permit most addicts to lead more or less normal lives. Many doctors prefer methadone as a sustaining drug because they believe it is easier to stabilize doses; some would prefer heroin because they think it has a better effect on the patient's emotional state. The biggest difference between heroin and methadone is probably political rather than pharmacological--methadone does not have the history and the connotations that make it so difficult for heroin to be considered as a form of medical treatment.

Partly for the same reason, among addicts heroin is still clearly the "drug of choice." As long as it is available it is unlikely that even a massive methadone maintenance program open to all addicts would dramatically reduce the number of heroin users.

Concern about crime by heroin addicts has resulted in support for experimental heroin-maintenance programs from unexpected sources. In recent weeks a special committee of the staid American Bar Association has called for such experiments. So have United States Attorney Whitney North Seymour, Jr., and Police Commissioner Patrick Murphy in New York City and Sheriff John Buckley in Middlesex County, Massachusetts. Mayor Lindsay would almost certainly have set up such a program already but for the strong opposition of Congressman Rangel and several other black leaders. They see this approach as "writing off" their people and fear that whatever deterrent effect the possibility of addiction might have on marginal drug users might be undermined if the worst they faced by becoming addicted was a daily trip to a government dispensary.

Another factor that has discouraged such programs is a prevailing misconception in this country that the British system of making heroin available to addicts at government-regulated clinics has resulted in a large increase in addiction. While this was true when individual doctors were permitted to prescribe heroin freely, two years ago the British began controlling distribution by individual doctors and now make drugs available through government-sponsored clinics. The result is that the number of addicts in England has stabilized at less than 3000. (A recent study counted six times that number in one forty-block area in New York city.) There appears to be little crime committed in England today by addicts seeking money for drugs, because addicts pay either nothing or 2 cents per dose for their heroin.

It would be a mistake to expect that most addicts will give up crime altogether once they can get free heroin from clinics. A prostitute in the Addiction Research and Treatment Corporation Center in Bedford Stuyvesant explained it clearly: "Now that I'm on methadone, I feel like a human being for the first time, I want some nice clothes and the only thing I'm good enough at is boosting [shoplifting] and turning tricks. But I don't have to do as much as long as I can get my drugs here."

Just as methadone is turning out to be no "magic bullet," so we would have to anticipate that many heroin addicts maintained at clinics would commit crimes. But controlling crime is not finding one total answer: it is chipping away with a number of partial answers. By relieving the enormous economic pressure of addiction, it may be possible to offset partially the enormous increase in criminality accounted for by addiction.

Unless researchers find a nonaddictive substitute for heroin, we will probably soon see a few government-sponsored heroin maintenance experiments in the United States. And if the experience with methadone is any guide, it seems a fair, if somewhat gloomy, guess that five years from now public pressure to reduce crime will have forced acceptance of heroin maintenance as a generally available form of treatment.

Neither improving the criminal justice system nor relieving addicts of the additional economic pressure to commit crimes that their addiction imposes on them is likely to make much difference in crime rates if millions of people believe crime is their best route to a decent life. We rely for self-protection more than we usually recognize on moral restraints based on a sense that each member of society has a stake in obeying the law. The sense of belonging to a community that underlies much of this moral restraint is undermined if the conduct of the rich and the powerful is characterized by selfishness, and if the government appears to have little concern for the plight of those for whom life is difficult.

Continuing denial of opportunity combined with the anonymity of city life, is destroying the social pressure to abstain from crime. The riots of the mid-sixties showed one possible outlet for the deep frustration and hatred felt by young blacks in the cities--the same group that is already responsible for a large proportion of serious crime. In New York City predatory "rat packs" of juveniles roam the city. They justify what they do as "getting even," and the thought that their victims are human beings with lives and feelings of their own seems foreign to them.

It would be a tragic mistake to assume that we can look to the law enforcement system to control crime if other restraints disappear. To understand this we need only look at the situation from the point of view of the potential criminal. The odds against the police catching the average burglar--either at the scene or later--are probably no better than 50 to 1. And if he is arrested, he has a good chance of having his case dropped or of being put on probation. A middle-class citizen with a reasonably comfortable life may be deterred by these odds: he has too much to lose. But 25 million people in the United States live below the officially defined poverty line. In a society where television commercials are constantly reminding us that every self-respecting American should be driving a new car and flying off for a Caribbean vacation, crime may seem like the only good bet for those whose lives are little more than a struggle to survive.

Even if we double or quadruple the effectiveness of law enforcement (and there is no reason to think we can) and reduce the odds proportionately it may still be a good bet. Crime will be a worse gamble only when people have decent enough lives on the outside so they are unwilling to risk arrest and conviction.

The view that the level of crime is determined less by law enforcement than by the extent to which we make life worthwhile for those at the bottom of the economic and social ladder is not a partisan one. Five years ago the Crime Commission, which included such staunch conservatives as William Rogers, currently Secretary of State, and Lewis Powell, one of President Nixon's most recent appointees to the Supreme Court, unanimously reported that the Commission

...has no doubt whatever that the most significant action that can be taken against crime is action designed to eliminate slums and ghettos, to improve education, to provide jobs, to make sure that every American is given the opportunities and freedoms that will enable him to assume his responsibilities.

The country seems to be proceeding on the contrary assumption. In a two year period when federal appropriations for the Law Enforcement Assistance Administration program increased from $270 million to $700 million, funds for the federal juvenile-delinquency programs were cut from $15 to $10 million. Against the background of the tremendous increase in crime committed by blacks, whatever notions of fiscal soundness or social justice are thought to underlie the Administration's apparent acceptance of Daniel P. Moynihan's proposal for "benign neglect" of blacks, that policy seems almost certain to have disastrous effects on crime.

The Crime Commission's final conclusion was that "controlling crime in America is an endeavor that will be slow and hard and costly. But America can control crime if it will." At that time I thought there was hope for changes that would both strengthen the agencies of criminal administration and reduce the injustices that underlie much crime. I still do not believe that we have to settle for a society where we live in fear of each other. But today, I find it hard to point to anything that is being done that is likely to reduce crime even to the level of five years ago.

Copyright 1972 by James Vorenberg. All rights reserved.
The Atlantic Monthly; May 1972; The War on Crime: The First Five Years.

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