59. See, e.g., R. R. Sears, et. al., "Some Child-rearing Antecedents of Aggression and Dependency in Young Children," Genetic Psychology Monograph (1953), pp. 135-234; E. Hollenberg and M. Sperry, "Some Antecedents of Aggression and Effects of Frustration in Doll Play," Personality (1951), pp. 32-43; W. C. Becker, et al., "Relations of Factors Derived from Parent Interview Ratings to Behavior Problems of Five Year Olds," Child Development, XXXIII (1962), pp. 509-35; and M. L. Hoffman, "Power Assertion by the Parent and Its Impact on the Child," Child Development, XXXI (1960), pp. 129-43.

60. Washington Post, December 15, 1968, p. B3.

61. Cox Commission, p. 164.

62. Proceedings, p. 56.

63. The Police Chief, April, 1965, p. 10.

64. The Byrne Commission report submitted to the Special Committee of The Regents of the University of California on May 7, 1965; most easily available in Los Angeles Times, May 12, 1965, Part IV, pp. 1-6. Quoted section, p. 5.

68. Donald Yabush, Chicago Tribune, December 3, 1968, p. 1.

69. Chicago Study Team, pp. vii-viii, emphasis added.

70. The variety of intelligence received by law enforcement officials is indicated by this listing of Yippie threats published in the mass media: "There were reports of proposals to dynamite natural gas lines; to dump hallucinating drugs into the city's water system; to print forged credentials so that demonstrators could slip into the convention hall; to stage a mass stall-in of old jalopies on the expressways and thereby disrupt traffic; to take over gas stations, flood sewers with gasoline, then burn the city; to fornicate in the parks and on Lake Michigan's beaches; to release greased pigs throughout Chicago, at the Federal Building and at the Amphitheatre; to slash tires along the city's freeways and tie up traffic in all directions; to scatter razor sharp three-inch nails along the city's highways; to place underground agents in hotels, restaurants, and kitchens where food was prepared for delegates, and drug food and drink; to paint cars like independent taxicabs and forceably take delegates to Wisconsin or some other place far from the convention; to engage Yippie girls as "hookers" to attract delegates and dose their drinks with LSD; to bombard the Amphitheatre with mortars from several miles away; to jam communication lines from mobile units; to disrupt the operations of airport control towers, hotel elevators and railway switching yards; to gather 230 'hyperpotent' hippie males into a special battalion to seduce the wives, daughters and girlfriends of convention delegates; to assemble 100,000 people to burn draft cards with the fires spelling out: 'Beat Army;' to turn on fire hydrants, set off false fire and police alarms, and string wire between trees in Grant Park and Lincoln Park to trip up three-wheeled vehicles of the Chicago police; to dress Yippies like Viet Cong and walk the streets shaking hands or passing out rice; to infiltrate the right wing with short haired Yippies and at the right moment exclaim: 'You know, these Yippies have something to say!;" to have ten thousand nude bodies floating on Lake Michigan-the list could go on." Chicago Study Team, p. 49.

71. Wilson, Varieties of Police Behavior, pp. 237-238.

75. See, e.g., Wayne R. LaFave, Arrest: The Decision to Take a Suspect into Custody (Chicago: American Bar Foundation, 1965); Skolnick, Justice Without Trial, and Wilson, Varieties of Police Behavior.

76.

77.

A cornerstone of our judicial system is that an accused is presumed innocent until proven guilty. The policeman, however, may feel that this should not be the rule since he would not have arrested the accused unless he was guilty. For a more detailed discussion of these points, see Skolnick, Justice Without Trial, Chapter 9, pp. 182-203.

Fogelson, p. 226.

78. We have discussed previously the tendency to equate defiance with crime.

79. Interview with John Harrington, President of the Fraternal Order of Police. 80. Certain political activities by police-discussed in detail below-may raise such

issues, especially where the activities create sharp antagonism within the policed community and threaten the ability of the civic government to control the police. 81. A "job action" began in response to the City's refusal "to negotiate a new contract." (New York Times, October 16, 1968, p. 1.) On October 26 the New York Times reported that Cassese was in defiance of a court order in his direction to continue the "slowdown," (p. 1). But on October 27, it was reported that he had bowed to the court order (New York Times, p. 1).

82. San Francisco Chronicle, December 16, 1968, p. 12.

83. Washington Post, December 15, 1968, p. B1.

84. For example, in Newark, New Jersey, as reported in New York Times, November 30, 1968, p. 1.

85. Washington Post, December 15, 1968, p. B1.

92. The Chicago Study Team writes that almost three months after the convention no disciplinary action had been taken against most of the police violators, (p. xiii).

93. New York Times, September 5, 1968, p.1.

94. San Francisco Chronicle, September 11, 1968, p. 1.

95. San Francisco Chronicle, November 5, 1968, p. 4, and Detroit Free Press, November 14, 1968.

96. San Francisco Sunday Chronicle and Examiner, This World, October 13, 1968, pp. 5-6.

97. Los Angeles Times, August 16, 1968, p. 4.

98. New York Times, August 18, 1968, p. E7.

99. Los Angeles Times, August 16, 1968, p. 4.

100. According to a Washington Post story, the PBA may have backed down. Decem

105. An example of this phenomenon seems to have been pointed to by the Commission's Chicago Study Team: "There has been no public condemnation of these violators of sound police procedures and common decency by either their commanding officers or city officials. Nor (at the time this Report is being completedalmost three months after the convention) has any disciplinary action been taken against most of them. That some policemen lost control of themselves under exceedingly provocative circumstances can perhaps be understood; but not condoned. If no action is taken against them, the effect can only be to discourage the majority of policemen who acted responsibly, and further weaken the bond between police and community." (p. xiii)

Indeed, this might have been predicted from the lack of response to the Sparling Report on the police violence during the Chicago peace march of April 1968. According to a Washington Post study: "Criticism of the Chicago force has become a symbol of the 'lack of support' that policemen constantly bemoan. Policemen everywhere rallied to the defense of their Chicago colleagues. 'How can people defend the rights [sic] of that filth and attack good police officers?' asks Walter Fahey, a Boston patrolman." (Washington Post, December 15, 1968, p. B5). And a police chief is reported as observing that Chicago made police feel they had to defend rough and stupid police behavior because they felt criticism of Chicago police was criticism of police everywhere.

106. See John Hersey, The Algiers Motel Incident (New York: Bantam, 1968). Reportedly, ten black men and two white girls were severely beaten by police during the Detroit riots; three of the men were found dead, shot at close range, and the police involved failed to report the incident.

107. The following discussion is based on information which is readily available from

sources such as the New York Times during the period discussed.

108. See, e.g., reports of Boston and Philadelphia in San Francisco Chronicle, December 16, 1968, p. 12.

109. An editor's note in a compendium of articles opposing review boards entitled

"Police Review Boards," prepared by the National Fraternal Order of Police Committee on Human Rights and Law Enforcement, Cincinnati, Ohio, no date. 110. This discussion draws from the D. J. R. Bruckner article, Los Angeles Times, October 2, 1968, pp. 26 ff.

111. See also New York Times, November 3, 1968, p. 78; our interviews in Oakland, San Francisco, and New York; and Reichley for related information about the Wallace campaign of 1968.

112. San Francisco Chronicle, December 16, 1968, p. 12.

113. Ibid.

114. September 28, 1968, p. 9.

115. Washington Post, December 15, 1968, p. B1.

116. Ibid.

117. One of our staff was present at that reception.

118. Washington Post, December 15, 1968, p. B2.

119. Ibid.

120. San Francisco Chronicle, December 16, 1968, p. 12. 121. Ibid.

122. San Francisco Chronicle, December 18, 1968, p. 11.

123. John Harrington, National President of the Fraternal Order of Police, has launched a campaign urging Congress to reverse certain Supreme Court decisions on crimi

nal justice, San Francisco Chronicle, December 16, p. 12.

124. New York Times, August 16, 1968, p. 38.

125. New York Times, September 3, 1968, p. 20; August 16, 1968, p. 38.

126. New York Times, August 16, 1968, p. 38.

127. Ibid.

128. Washington Post, December 15, 1968, p. B1.

129. Henry Wise, the labor lawyer retained to help organize and bargain for the Patrolmen's Association, as quoted in Washington Post, December 15, 1968, p. B2.

130. Washington Post, December 15, 1968, p. B1. 131. Washington Post, December 15, 1968, p. B2.

132. Washington Post, December 15, 1968, p. B1. 133. Washington Post, December 15, 1968, p. B2. 134. Ibid.

135. See 42 U.S. C. 1863.

136. For example, the National Defense Education Program, Chapter 17 of Title 20 of the U.S. Code, and the National Science Foundation, Chapter 16 of Title 42. Grants could also be made to existing institutions to establish special courses, much as the NDEP provides financial assistance to schools for teaching science, mathematics and foreign languages; and on-the-job summer training might also be provided. Such a program should be approached cautiously, however, in light of the current pressures to deny academic credit to Reserve Officer Training Corps and the comparatively low regard for policemen in the academic community. 137. See, e.g., "Task Force Report: The Police," The President's Commission on Law Enforcement. . ., p. 142.

138. Ibid.

139. See Herbert L. Packer, The Limits of the Criminal Sanction (Palo Alto: Stanford University Press, 1968); The President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society (Washington, D.C.: U.S. Government Printing Office, February, 1967), p. 126; and Skolnick, "Coercion to Virtue," Research Contribution of the American Bar Foundation, No. 7 (1968).

140.

National Advisory Commission on Civil Disorder, pp. 311-312.

Chapter VIII

JUDICIAL RESPONSE IN CRISIS

The actions of the judicial system in times of large-scale mass protest-and especially civil disorder-are an important, if severe, test of a society's judicial system and its capacity to protect the rights and liberties of its citizens.1 This chapter is a study of the judicial system and its response to mass protest. Because of the breadth of this topic-ranging from anti-war protest to black militancy and from the nature of political justice to the mechanics of processing thousands of cases during civil disorders-we have chosen to focus our inquiry more narrowly. So we begin this chapter with a survey of the actions of courts during the recent urban disorders. We then indicate some of the causes and implications of these actions, focusing primarily on themes which we feel have been developed inadequately elsewhere. In so doing we also indicate the broader implications of our analysis for the legal system and its functioning during periods of social unrest and mass protest, whether that be black militancy, student unrest, or anti-war protest.

To undertake even the study of the judicial response to the recent urban disorders, however, is far from easy, for there is little in the way of data. Indeed, there are far fewer studies in depth about even the routine operations of judges, prosecutors, and other court officials in the lower criminal courts than, for example, about police. Furthermore, judges are not as uniform in their views as police, and they are not organized into guild organizations that have a sharp ideological character. So it is more difficult to generalize about judicial attitudes and actions.

Moreover, early governmental investigations of riots include few explicit comments on the operation of the judicial system. Reports of the 1919 Chicago riot, the 1935 Harlem riot, the 1943 Detroit riot, and the 1965 Watts riot offer, at most, cursory generalizations, without data on case processing, bail, or counsel. These early commissions evidently did not consider judicial actions as having any great importance; they were more or less taken for granted. This view was equally shared by government agencies and academics— even such classical studies of urban race relations as DuBois' study of The Philadelphia Negro2 and Drake and Cayton's Black Metropolis3 evaluated criminality without addressing its judicial context.

Official resports of riots during 1968, however, have given more attention to the judicial system. Undoubtedly this is in part because of an increased sensitivity in recent years to standards of judicial due process, largely because of the lead of the Supreme Court. Another reason for this recent concern is, of course, that during the urban disorders of the 1960's persons have been arrested in the thousands, straining the capacity of the courts to process and adjudicate cases in an orderly fashion. Almost 4,000 persons were arrested in

Watts in August, 1965;4 more than 7,200 persons were arrested in Detroit in a nine-day period in 1967;5 1,500 were arrested during a five-day riot in Newark;6 in April, 1968, following the death of Martin Luther King,7 over 3,000 persons were arrested in Chicago within a three-day period; during the week following Dr. King's death, 7,444 were arrested in Washington, D.C., and over 5,500 in Baltimore.8 Thousands of other persons, including lawyers and media personnel, were, in the process, brought into contact with the lower criminal courts, persons who would not otherwise have been exposed to or even had second-hand knowledge about them. Responses ranged from anger at the injustices and callousness of the judicial system during periods of civil emergency to praise for overworked officials who did their best under trying conditions.

In these circumstances, it is not surprising that official attention has turned to assessing the administrative competence of the courts to cope with the volume of cases generated by civil disorders. The Kerner Commission Report devoted a chapter to problems of criminal justice during crises, and the Chicago Riot Study Committee included a chapter on the courts in their report of August, 1968.10 Other investigations have specifically focused on the courts; a District of Columbia committee reported on the courts in May, 1968;11 a Baltimore committee reported in the same month;12 a New York committee presented recommendations to Mayor Lindsay for court procedures during emergencies in August, 1968;13 and the American Bar Association reviewed the problems of courts during civil disturbances in the spring issue of the American Criminal Law Quarterly. 14 We shall draw on these reports, as well as our own interviews and other materials, to describe judicial operations during civil disorders.

THE LACK OF PREPARATION: AN OVERVIEW

The first major urban riot of the 1960's-in the Watts section of Los Angeles-was unanticipated by the judicial system, which understandably experienced severe administrative pressures. But even after the development of "emergency contingency plans" in some cities judicial systems continued to be unprepared for and overwhelmed by civil disorders.

The lack of preparation had an immediate practical impact. In Detroit, within two days of the beginning of the riot, 4,000 were incarcerated in makeshift jails. William Bledsoe, an Assistant State's Attorney General assigned to the Civil Rights Commission, reported that prisoners were “standing where there wasn't enough room to lie down. Or at least, people would take turns lying down. If you did find a place, you didn't dare get up.... Men and women were housed under these conditions together, without sanitary facilities, with perhaps one or two bologna sandwiches a day, if that....”15 In Newark, a large proportion of those arrested were held in an armory without proper food, water, and toilet or medical facilities until detention pressures finally forced authorities to release defendants on lower bails. 16

Despite the Kerner Report's publication of lucid recommendations concerning the administration of justice in crisis, only New York had formulated a comprehensive emergency plan for the judicial system by April, 1968. Even in Washington, D.C., where the judicial system responded more fairly and efficiently than any other urban jurisdiction, "advance planning had been con