Seventy-six hours ago I was in Moscow. I was walking in a heavy snowstorm near the Kremlin. I had just come from a dinner attended by Russians and Americans, and I had spent all the day working with officials of the Russian government on business and trade proposals involving American corporations.
During the days I was in Moscow we had many long conversations. The exile of Solzhenitsyn; the plight of Solzhenitsyn’s family; the future, if any, for detente between the USA and the USSR; the Russians’ hopes for their country, their needs for their families; their attitudes toward us -- all these and a dozen other topics drifted in and out of our talks.
I have been to Russia ten times in the last eighteen months. So I now have friends there and some understanding of their humanity and their fears, their history and their aspirations is beginning to grow clear for me. In one sense I’m not much beyond Julie Christie and Omar Sharif in “Doctor Zhivago” - but on the other hand I have read and re-read Dostoyvesky and Tolstoi and Turgenev. I have read Marshall Shulman and Irving Shapiro on the Communist Party; I have read Adam Ulam’s new, magnificent biography of “Stalin” and John Barron’s massive book on the “K.G.B.” Berdayev, Sakarov, Yevtushenko, Sholokshov (author of “Quietly Flows the Don”), and all the writings of my hero, Solzhenitsyn, are sharp and clear and poignant in my consciousness.
And from another point-of-view, I’m fresh from 15 years working in our own government -- in Chicago, in Washington, and in Europe…fresh, yes, still fresh, from an unforgettable national political campaign for the vice-presidency.
Out of all this -- what can I say to you tonight on the subject you asked me to discuss -- “The Injustice of Justice in America?”
Truthfully, there’s so much I hardly know where to begin or how to end. But let’s start with a most important truth:
Both the USSR and the USA say they are dedicated to “justice”. The number one daily newspaper in the Soviet Union is not called the Moscow Times or the Leningrad Post-Dispatch. Its name is “Pravda” which in the Russian language means “justice”. Yet the government of that nation under Stalin perpetrated the largest massacres of its own citizens, and of others, in the history of mankind Stalin’s victims outnumber Hitler’s at least three to one. Even today the freethinking and freespeaking of one man, Solzhenitsyn, created a national crisis for the most powerful military power on earth. One Jewish ballet dancer, star of the Leningrad Kirov Ballet causes a “national security” issue for the Politburo itself.
By contrast our nation and our system of justice did manage, finally, to give fair trials to Bobby Seale and Angela Davis. Yes, we have political prisoners. the slaughter of prisoners at the Attica State Penitentiary in New York exemplifies dramatically how far we are from achieving justice here at home. But, still my first point must be this: although the Russians and we both say we are dedicated to justice, we here in the USA have by far the best record of protecting individual liberties and rights.
But have we the best record in “establishing justice” for all the people? Taken as a community, or a society -- do we have the best “social justice”? The answer here is more difficult.
Are the benefits of our society more equitably distributed between rich and poor than in the USSR? Are there more poor percentage-wise in the USA than in the USSR? Is there more “social security” more “health security” in the USA than in the USSR? Are there Soviet leaders more dedicated to the needs of their people? Do they have a worse credibility gap than Mr. Nixon?
I cannot possibly discuss, let alone answer such questions here tonight. But I do believe there is one crucial area where we and the citizens of the USSR and the citizens of the USA -- and the citizens of nearly every country on earth -- face the same problem. It’s not a new problem -- it’s an eternal one. The famous movie director, Costa Gavras -- the man who made “Z”, “State of Siege”, “The Confession” -- put the issue in these words:
“ ...official injustice is the greatest of all violence, because that’s where violence begins. Violence is not the policeman who beats you or the soldier who kills you. They’re only the visible agents. It is injustice which is behind the club or the gun. Revolutionary violence is too often judged by the image it gives, never by its roots. From where does this violence come? Always from injustice. and the worst is injustice in the name of justice... “
Costa Gavras has touched the nerve center, the pressure point. by focusing on official injustice he has revealed the deepest source of our anguish as a nation. His insight explains the alienation of young people; the antagonism against the Vietnamese War; the fervor of those who struggle for civil rights: the terrifying acceptance of drugs by frustrated young people in the ghettos; the deserters from Yale and Harvard and California still in Canada or Sweden; the senseless bombings by the Weathermen; and the need for a “new consciousness,” as Charles Reich calls it, or for a new, deeper, more sensitive “moral consciousness” as religious people call it. Solzhenitsyn and Sakarov complain about similar but worse elements in their own society – against official lies from people in high places; against militaristic chauvinism; against censorship; against repression of artists, writers, and other humanists.
The most creative people and those with the most sensitive moral consciousness are those in both our nations who have become more aware of sin, of evil in high places, of the devil, as in “The Exorcist”, of the wickedness in ourselves and of “official injustice in the name of justice.”
And so tonight I’d like to focus on “official injustice”. From it flows, I believe, the worst injustice in any system. Let us look at our own nation, then, in these terms.
“Justice”, Daniel Webster said, “is the greatest interest of man on earth. It is the ligament that holds civilized beings and civilized natures together. " Our nation was conceived in justice. The American Revolution was a revolt against official injustice by the King of England. Our Constitution places the duty “to establish justice” even ahead of “domestic tranquility,” in other words, ahead of law and order.
And so it should be. A democratic nation’s duty must be to secure justice for all its citizens. and when an administration fails in this obligation, it does not deserve to govern.
Today, the quality of justice in this nation is lower than at any time in modern history.
The failure to provide justice is not just an abstraction. It has serious consequences. Justice releases creativity, spurs us to action and generates harmony. Injustice causes anger and frustration. Injustice festers and rankles. It makes life intolerable and bereft of dignity. Injustice breeds violence, sows the seeds of rebellion.
Washington has failed to provide justice in three major respects:
First, justice has been subverted by being politicized.
Second, justice has not been expanded and delivered to the million of our citizens who suffer injustice.
Third, justice has been corrupted even in the administration of it.
A cardinal axiom of any system of justice is that it must be even-handed. This is why the goddess of justice is pictured with balanced scales and a blindfold over her eyes. In a just society the rights secured by justice are not subject to the calculus of political bargaining.
But justice in recent years has not been even-handed. It has been weighted in favor of the powerful special interests, and tipped on behalf of political contributors:
- An ITT, a Lockheed, a grain industrialist, get favored treatment, but the small businessman does not.
- A contribution from milk producers is received -- and the donors receive higher milk supports.
- Lawyers and lobbyists representing big business have ready access to the top officials of the Department -- but lawyers providing legal services for the poor are threatened and brow-beaten by so high an officer as the Vice President of the United States.
This politicization of justice is destructive. It breeds cynicism and corruption. It destroys the citizen’s faith in his government. It engenders lawlessness in others.
It is, of course, no wonder that justice has been politicized - men of small legal stature and large political ambition have been chosen to run the Department of Justice.
Once it was otherwise. When Robert Kennedy became Attorney General, he took his office as a sacred trust. He chose men to run it who were not politicians, but men of superb ability and passionate commitment to law -- Byron White, Nick Katzenbach, Burke Marshall, a Lou Oberdorfer, a John Douglas, a Bill Orrick, a Lee Loevinger, and others of similar caliber
But John Mitchell made the Department of Justice into campaign headquarters. Six out of the seven top department officials were politicians. and their caliber and morals were deficient.
They included:
- A Deputy Attorney General who admitted that he received a bribe offer from one Robert Carson which he failed to report at the time, allegedly because he “did not recognize the offer as a bribe.” This man later became Attorney General; then had to resign; and may soon be indicted.
- An Assistant Attorney General in charge of the sensitive criminal division who resigned under pressure when it was revealed that he was heavily in debt to the central figure in a major Texas bank scandal.
- An Assistant Attorney General in charge of the civil division who was tied to the defendant in the Watergate burglary and bugging and is suspected of massive destruction of campaign financial records.
- A Director of the F.B.I. who admitted to the destruction of legal documents and to falsehood under oath.
With such men at the helm of Justice it is not surprising that politics courses through the Department. the examples abound--
- An antitrust suit against the Warner-Lambert corporation is suppressed contrary to staff recommendations. the head of the company is Elmer Bobst, Mr. Nixon’s “adopted father”.
- Dubious price rulings favor Combined Insurance Company of Chicago. The head of that company, a friend of Mr. Nixon’s, contributed about a half million dollars.
- The dereliction of a U.S. Attorney in San Diego is ignored despite Mr. Kleindienst conceding that a shocking breach of trust had taken place.
In this way the very Department of our government which above all others should be free of taint, scrupulous in its fairness and dedicated to principle, has been subverted.
There is much more to deplore in the Department’s conduct. The Department should not be politically dominated but it also should not be a Department:
- which recommends incompetents for the Supreme Court, plus numerous others judged unqualified by the American Bar Association.
- whose recommendations for federal judgeships abound with mediocrities and worse.
- which engages in massive arrests of peaceful protestors without cause and in flagrant violation of constitutional rights.
- which fails to enjoin widespread violations of voters rights in Alabama and Mississippi.
- which condones political attempts to undercut legal services for the poor.
All of these are forms of injustice. All of these dishonor the very name the Department bears.
I have told you what the Department of Justice should not do. Let me tell you what it should do.
Our country and our people deserve a new and genuine Ministry of Justice. A Ministry of Justice which sees as its responsibility the expansion of justice for all of our citizenry, which perceives its task to confront injustice wherever it is found. I have a vision of a Ministry of Justice which opposes private lawlessness by a slum landlord and official lawlessness by a General Lavelle, who bombs cities against orders and doesn’t even receive a court martial. I have a vision of a Ministry which chooses civil rights and liberties over suppression of dissent. A ministry in which the guarantee of justice to every American is regarded as a pervading continuing mission.
As I conceive the role of the Department, it should have two Deputy Attorneys-General -- one would be in charge of the traditional law enforcement activities. the other would head a new office charged with the duty of expanding justice for our citizens. The expansion of justice encompasses many possibilities.
It means, for example, that the Department’s duty would be to seek out new means to confront the sources of injustice in our nation.
Health authorities spend huge sums to search for new discoveries to eradicate disease.
The Department of Defense spends $8.2 billion annually to develop new capacities for killing people.
Yet, when it comes to creating new methods for combatting injustice our expenditures are frugal and minimal. to improve justice for our people we spend a mere $26 million dollars per annum, less than 1/2 of 1% of the amount spent to improve our capacity to kill our enemies.
Yet, there is an enormous potential to improve our system of justice. A nation that can devise vehicles that travel faster than the speed of sound can devise means to speed trials. A nation which can launch communication satellites in space should be able to find ways to teach citizens their legal rights. A nation which can devise complex multimillion dollar computer systems should be able to devise systems to prevent arbitrary denials of benefits and cumbersome procedures when citizens seek to exercise their rights.
We are advocates of preventive medicine but what of preventive justice? Why should we know so little about how criminal tendencies develop, about what stimulates acts of violence, about what causes recidivism? We are only at the frontiers of knowledge about preventive justice when we should be well within the gates.
The Department of Justice should be taking the lead in these endeavors. It should be creating and stimulating new ideas. It should be encouraging scholarship and research. It should be the nation’s catalyst in the quest for justice. This is part of what I mean by an expanding vision of justice.
Some time ago, I proposed the creation of a National Institute of Justice, devoted to the improvement of our entire legal system, the coordination of legal research and long range planning, needed revision of our system of legal education, the reform of criminal and correctional systems, the development of new techniques in neighborhood courts, citizen mediation panels, arbitration techniques and other methods of bringing justice close to the people. I shall not elaborate on the proposal here, but it is gratifying that the concept of such an Institute of Justice has now been endorsed by Chief Justice Burger and the Executive Director of the American Bar Association. What is distressing as a lawyer and as a citizen is that none of this innovation stems from the present Department of Justice.
Another role for this new branch of the Department of Justice would be the obligation to deal with official injustice.
We know of such injustice -- agencies arrogant with power, failing to protect the public interest, neglecting to carry out the law, callously submerging citizens in delay and mind-boggling red-tape.
We have all seen such injustice -- agencies summarily evicting families from housing, cutting off medicare, denying claims, barring citizens from voting, refusing children free lunches, removing students from schools, and many more.
Sometimes the injustice comes from high quarters -- a Ronald Reagan cutting off services to ‘the poor, a John Bell Williams exonerating murder at Jackson State, a Claude Kirk usurping police functions in Florida.
Such official injustice is the most frustrating of all --- because when officials themselves disregard the law, private citizens are often left homeless, able to turn to no one.
As Sir Thomas More reminds us, “If the guardians of the law break down the trees of the law, where will we find sanctuary then?” What is left but a wasteland? Or should I say a “Watergate?”
Now, such official injustice is confronted only by private citizens, courageous young legal services lawyers and public interest advocates such as Ralph Nader. These men and women have won many battles against injustice. They have won the right to vote for Spanish-speaking people; the right to counsel for indigent accused; the right to a hearing before a landlord’s eviction, and many more.
But why were these actions not brought by the government itself? The Department of Justice should have been the first to ferret out these injustices and to initiate remedial action.
This, too, is part of expanding justice. When government itself roots out injustice in its midst, it renews faith in the rule of law and makes people feel that they have a stake in the institution of law. What better way of strengthening America!
Another role in expanding justice would be in the private sector. It is vital to have justice mean safe streets and safe parks. But justice also means safe food and safe drugs, safe housing and safe appliances, safe job sites and safe air and water.
Why shouldn’t the Department of Justice act to stop the slumlords who victimize our children and the merchants who pass off shoddy wares? They, too, rob their victims -- even if they don’t appear in the crime statistics.
Why shouldn’t the Department of Justice act to stop those who rob our air of its sweetness and our water of its purity and our landscapes of their beauty? They, too, rob us of our possessions -- even if these robberies do not appear in the crime statistics.
Why shouldn’t the Department of Justice act to apprehend the false advertisers, the purveyors of phonyism, the manufacturers of built-in obsolescence, the sellers of bad insurance. They, too, victimize the people -- even if the victims don’t appear in the crime statistics.
In my concept of expanding justice we would also address ourselves to institutions where today courts and lawyers rarely wander -- but where injustice often walks. The hospitals and institutions for the mentally retarded where patients are neglected or maltreated or experimented on, the schools where children are abused. We must also find ways to establish justice within these closed systems which affect our daily lives. Here, too, a Ministry of Justice can innovate and lead.
In the more talked about and traditional areas of the Department’s work, there is also no bold vision of justice.
The greatest deterrence to crime is justice that is speedy. The criminal court is the central, crucial institution in obtaining that objective. Yet, virtually everywhere we find a shortage of judges, of prosecutors, and of accessory help for them both; we see hopelessly inadequate court facilities in almost all urban communities and in many others we find larger and larger dockets and heavier and heavier backlogs. Congestion and under-mannning force prosecutors to take emergency measures to reduce the dockets. Guilty pleas and reduced or even suspended sentences are sought on an almost desperation basis; plea bargaining, reduced charges, and dropped cases become the practice. And courts try to hear an inordinate amount of cases in one day in “assembly-line” justice. Such a system is not designed to further justice or promote respect for the law.
Yet, the development of justice has done virtually nothing to remedy these deplorable conditions. It neither leads others nor innovates on its own. It expends its efforts on dubious measures such as preventive detention and no-knock authority, when it should be focusing on securing speedy trials, on training fair and efficient prosecutors, and defenders, on equipping courtrooms and obtaining sufficient and able judges so that justice will be meted out surely and quickly. This would do more to reduce crime than all of the tough rhetoric.
We know, too, that crime is greatest among our youth and in our ghettos. almost 40% of arrests are for persons under 18. Some 70% of persons convicted under 20 years of age are rearrested within 5 years.
But why should such statistics surprise anyone? Our neglect in this area has been unconscionable.
Throughout our country, we still jail first time offenders with hardened criminals. Our juvenile detention homes are obsolete, crowded, and understaffed; often they become schools in criminal practice rather than institutions where rehabilitation can take place. We release offenders without aiding them to get jobs, or caring about the effect on them and their families of having to seek employment with a prison record.
Our jails are archaic, lacking facilities to teach gainful work, and destructive of the human spirit. Their doors have become turnstiles for the return of recidivists.
Who better than the Department of Justice can take the lead in reforming our jails, in obtaining funds to train gang workers in reforming our juvenile offender procedures. But these are enterprises which require vision and in our present leaders of the Department we have neither.
I should mention here a truth which seems to be fundamental but which the present Department has shamefully glossed.
There are many reasons why young people turn to crime which do not lend themselves to hasty simplification. But not the least of them is a failure “in the opportunity structure,” the disillusioning experience of discovering as they grow up that the promise of decent housing, good schools, and attractive job opportunities apply to most Americans but not to them.
I want to speak finally, of the delivery of justice to our people. Health services are meaningless unless they can be delivered. Consumer goods are valueless unless they can be distributed to customers. So it is with justice. Rights are empty unless they can be enforced. There is no justice unless it is available and felt by the people.
When I was head of OEO we made encouraging advances in providing legal services for the poor. We began to show the poor that the law was not a vehicle of the establishment, for the establishment, by the establishment. That equal justice was not just an epigram chiseled on the facade of the Supreme Court building, but a force to be felt and a right to be enjoyed in one’s daily life.
Much of that program is in jeopardy now because of undermining by Spiro Agnew. And this Department of Justice silently condones these vicious attempts to destroy the legal services program.
And not only the poor. Millions of Americans in low and middle income America cannot afford the high cost of legal services today. Yet their need for such services is great and the injustices they suffer for lack of them are many. We need to establish group legal services, new types of legal insurance, neighborhood offices, and many other means of bringing the instruments of justice to the masses of our people. The Justice Department I see would pioneer and lead here, not sit by supinely and do nothing.
Justice should be an exciting idea and a fruitful reality. I believe a whole new spirit of justice can infuse the work of our government. I believe our Justice Department would be one for whom men and women would again be proud to work.
The challenge of confronting injustice -- of making justice pervasive in a country of our size and perplexity is perhaps the greatest challenge of our time.
It was Albert Camus who said: “I should like to be able to love justice and still love my country.”
That is the goal we must pursue!
