Chapter 13

A riot in the city poses a separate crisis in the administration of justice. Partially paralyzed by decades of neglect, deficient in facilities, procedures and personnel, overwhelmed by the demands of normal operations, lower courts have staggered under the crushing new burdens of civil disorders.

Some of our courts, moreover, have lost the confidence of the poor. This judgment is underwritten by the members and staff of this Commission, who have gone into the courthouses and ghettos of the cities torn by the riots of 1967. The belief is pervasive among ghetto residents that lower courts in our urban communities dispense "assembly-line" justice; that from arrest to sentencing, the poor and uneducated are denied equal justice with the affluent, that procedures such as bail and fines have been perverted to perpetuate class inequities. We have found that the apparatus of justice in some areas has itself become a focus for distrust and hostility. Too often the courts have operated to aggravate rather than relieve the tensions that ignite and fire disorders.

The quality of justice which the courts dispense in time of civil crisis is one of the indices of the capacity of a democratic society to survive. To see that this quality does not become strained is therefore a task of critical importance.

"No program of crime prevention," the President's Commission on Law Enforcement and the Administration of Justice found, "will be effective without a

massive overhaul of the lower criminal courts." 1 The range of needed reforms recommended in their report is broad: Increasing judicial manpower and reforming the selection and tenure of judges; providing more prosecutors, defense counsel and probation officers and training them adequately; modernizing the physical facilities and administration of the courts; creating unified state court systems; coordinating statewide the operations of local prosecutors; improving the informational bases for pretrial screening and negotiated pleas; revising the bail system and setting up systems for station-house summons and release for persons accused of certain offenses; revising sentencing laws and policies toward a more just structure.

If we are to provide our judicial institutions with sufficient capacity to cope effectively with civil disorders, these reforms are vitally necessary. They are long overdue. The responsibility for this effort will rest heavily on the organized bar of the community. The prevalence of "assembly-line" justice is evidence that in many localities, the bar has not met its leadership responsibilities.

1 The President's Commission on Law Enforcement and the Administration of Justice, The Challenge of Crime in a Free Society, A Report, 1967, p. 128; and Task Force on Administration of Justice, Task Force Report: The Courts, 1967, p. 29.

with over 1,700. Precinct lockups, built for 50 prisoners, received 150 or more. The juvenile detention home, built for 120, held over 600 during the riot. Makeshift detention facilities were commandeered; 1,000 arrestees were held in an underground police garage for several days, many without adequate food or water. Others were held for over 24 hours in city buses. Adults of both sexes were sometimes locked up together. In Newark, a large portion of those arrested were held in an armory without proper food, water, toilet, or medical facilities. Prisoners had no way to contact lawyers or relatives. Members of the press or official observers were unable to reassure those on the outside. In the absence of information about arrestees, new rumors, and fears added to the tensions of the riot.

JUDICIAL

PROCEDURES ORIENTED ΤΟ MASS RATHER THAN INDIVIDUALIZED JUSTICE

Normal screening procedures were overrun in the chaos of the major disorders. Rational decisions to prosecute, to delay prosecution on good behavior, to dismiss, to release with or without bail pending trial, to accept a plea to a lesser charge or to press for conviction on the original charge, and to impose a just sentence require access to a comprehensive file of information on the offender contributed by police, prosecution, defense counsel, bail interviewers, and probation officers. Orderly screening requires time, personnel, deliberation. These elements were absent in the court processing of those arrested in the major riots.

ARRAIGNMENTS AND BAIL SETTINGS

In Detroit defendants were herded to arraignment in groups. There was little chance to screen out those cases that could best be handled out of court or that could not survive trial. Defense counsel were not allowed to represent defendants at this stage in Detroit. Some judges failed to advise the defendants of their legal rights. After one group arraignment, a Detroit judge told the next group of defendants, "You heard what I said to them. The same things apply to you."

Arraignments in the major riot cities were often delayed several days, thus denying defendants the right to prompt bail. In Detroit, many persons arrested for minor ordinance violations were jailed for a number of

'One thousand defendants were arraigned in a single day in the Detroit Recorder's Court (250 per 6-hour shift). Information usually available to the judge at arraignment on the warrant-i.e., fingerprint checks, interviews, investigative reports, formal complaints-was often missing due to the logjam in the warrant clerk's office. Grand jury proceedings suffered similarly. Mass indictments naming 100 or more defendants were handed down in all-day sessions in Newark after average deliberation of less than 2 minutes per case.

days before going to court. When the judicial process was finally activated for them, most judges tended to set inordinately high bail in order to frustrate release.' Pressure on detention facilities thus remained at intolerable levels for several days. Bail for offenses such as looting and property destruction was set as high as $50,000; for assault up to $200,000. Bond for curfew violation was rarely set at less than $10,000-often as high as $15,000 to $25,000. In Newark, bail was uniformly set at $500 for curfew offenses, $250 for loitering, and at $2,500 and up for property offenses. No attempt was made in most cases to individualize the bail-setting process. Pressured by unattainably high bail, many indigent defendants pleaded guilty or accepted immediate trial when offered.

In both Newark and Detroit, detention pressures finally forced a more lenient bail policy. In what were essentially duplications of earlier bail hearings, prisoners were interviewed and released without bail in large numbers. In Newark, an ROR (release on the defendant's own recognizance) program initiated in the last days of the riot interviewed over 700 prisoners (at least half of all those arrested) and secured the release of between 65 and 80 percent.

Courts in several of the smaller cities successfully experimented with releasing offenders on their own recognizance from the beginning of the riot. Dayton continued its release-on-recognizance policy during its September disorder. Most of the 203 people arrested were released without money bail. In New Haven, out of 550 arrested, 80 percent were released on their own recognizance.

'In Detroit, the prosecutor announced this policy publicly, and most of the judges acceded. The Recorder's Court in 1966 released 26 percent on their own bond. During the riot, the figure was 2 percent. Acceptance of money bonds in any amount was suspended during one 24-hour period. Offers of defense counsel to represent defendants at bail hearings were rejected.

A survey of Detroit riot defendants held in Jackson State Prison for lack of bail, showed only 9 percent with bond set below $1,500; 14 percent with bond set between $1,500 and $2,500; 20 percent between $5,000 and $10,000; 44 percent between $10,000 and $25,000. Another survey of defendants imprisoned in Milan Federal Penitentiary, who were arrested on the first day of the riot for property offenses, showed 90 percent with bond set between $10,000 and $50,000.

"The prosecutor finally initiated the lenient bail policy in Detroit. (One judge, however, used bail examiners throughout the riot and released 10 percent of defendants who came before him on their own recognizance.) Over 3,000 were released within a few days through bail review; by August 4, only 1,200 remained in detention. Files were flown to the FBI for checking to expedite release. Only one known rearrest (for curfew violation) was reported from among such persons released. When preliminary examinations began on August 1, most defendants were released on $500 personal bond, except in violent crimes or cases of serious prior records.

In Newark, on the Sunday following the Wednesday when the riot began, the judges went into the jails to conduct bail review hearings.

COUNSEL

The riots underscored other deficiencies in local court systems. Most prominent in the major outbreaks was the shortage of experienced defense lawyers to handle the influx of cases in any fashion approximating individual representation. Even where volunteer lawyers labored overtime, the system was badly strained. Individual counsel was rarely available. Inexperienced lawyers in Detroit were given briefings by experienced criminal attorneys and were handed procedural handbooks before entering the court rooms. 10 They had no opportunity to bargain for pleas before arraignment-or even to see police files before preliminary hearings. In several cities (Detroit, Newark, and New Brunswick), volunteer attorneys were denied access to prisoners in jail-in one case because they did not know the prisoners' names. While individual lawyers and legal organizations in several cities provided counsel to represent minor violators (Milwaukee, the Legal Services program; New Haven, the Legal Assistance Association; Cincinnati, the American Civil Liberties Union, National Association for the Advancement of Colored People, and Legal Aid Society); in others (Rockford, Ill., Atlanta, Ga., and Dayton, Ohio), those defendants normally not eligible for assigned counsel went unrepresented.

The need for prompt, individual legal counsel is particularly acute in riot situations. This is because of the range of alternative charges, the severity of penalties that may be imposed in the heat of riot, the inequities that occur where there is mass, indiscriminate processing of arrested persons, and the need for essential information when charges are made by the prosecutor and bail is set. The services of counsel at the earliest stage, preferably at the precinct station, are essential. Provision of effective counsel at an early stage will also protect against a rash of post-conviction challenges and reversals.

SENTENCING

Trial and sentencing proved equally vulnerable to the tyranny of numbers. Sentences meted out during the riots tended to be harsher than in those cases dis

posed of later. Some judges in the early days of the riots openly stated that they would impose maximum penalties across-the-board as deterrents. One Cincinnati judge announced that any person brought before him on a riot-connected offense would receive the maximum penalty. Circumstances of the arrest, past record, age, family responsibilities, or other mitigating factors were not considered.

The burden of this policy fell on the poorest defendants-those unable to raise bail-who agreed to immediate trials. Those who could raise bail and wait out the riot often received more lenient sentences. Once the riots were over, defendants were frequently sentenced to time already spent in detention, if they consented to plead guilty.

In those cities where the riots were less extensive and the number of arrests allowed normal trial procedures to remain largely intact, sentences did not markedly vary from the norm. In Dayton, where most of the 203 law violators were charged with minor offenses such as disorderly conduct and destruction of property, the standard penalty was a fine of $15 to $50. In Rockford, Ill., where all arrests were for disorderly conduct or curfew violations, fines were assessed within a $20 to $250 range, according to the individual's ability to pay.

A primary function of criminal justice in a riot situation is effectively to apprehend, prosecute, and punish the purposeful inciters to riot and to assure the community at large-rioters and nonrioters alike-that law violators will be prosecuted and sentenced according to an ordered system of justice. Dispassionate objectivity on the part of both the bench and the bar— always required and always difficult becomes even more necessary when civil disorders occur. The passions of the street must not enter the courtroom to affect any step in the administration of justice, particularly sentencing. During a riot emergency, it is highly important that courts adhere to established criteria for sentencing. This did not always occur in Detroit and Newark in the summer of 1967. In smaller disorders, such as Dayton, Atlanta, and New Haven, arrests were fewer, arraignments were prompt, release policies were fair, and sentences were within normal ranges.

In a period of civil disorder, it is essential that our judicial system continue firmly to protect the individual constitutional rights upon which our society is based.

10 The Detroit Bar Association mustered over 700 lawyers (10 to 15 percent of its membership) to serve as defense counsel. They were used primarily at preliminary hearings and arraignments on the information, not at initial bail hearings.

Our criminal jurisprudence has developed important safeguards based on the arrest process as the mechanism which activates the full judicial machinery. Thus, arrest brings into play carefully developed procedures for the protection of individual rights.

Some suggest that the judicial system must respond to the riot emergency by short-cutting those procedures. Such suggestions, usually referred to as "preventive arrest" or "preventive detention," involve extending the