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Cedar Rapids Gazette (Newspaper) - September 10, 1974, Cedar Rapids, Iowa Crazy-quilt 'discretion' in U.S. judiciary Editorial Page Tuesday, Soplomber 10, 1974 Judging the pardon PRESIDENT FORD'S provoca- tive pardon of former President Nixon invites judgment on two levels, the personal level the public one. Regrettably, the outcomes do not coincide. In the pe.rsonal framewoi K, Mr. Ford's act was one man's kind, compassionate, forgiving (some would say Christian) act of charity or mercy toward another human being. The receiver of this kind- ness was a once-powerful man who left his country's highest of- fice in disgrace because removal through impeachment loomed a man whose suffering from that is said to be endangering his health (perhaps his The giver was a man whose office carries the power to do for anyone (he kind of thing that Mr. Ford has done for Mr. Nixon. Judged in narrow human terms, as a person-to-person transaction, with past "punish- ment" or "suffering" for wrongs weighed against the possibility of more such punishment ahead. President Ford's pardon for his predecessor was a justifiable act. At the public level, however, institutional considerations over- ride the personal. Neither man is just an individual. The circum- stance of who they are and what they do is inextricable with WHAT they are: past and present holders of the United States pres- idency, public symbols of a, public system, the living embodiments of a system of government and law that transcends the personal and dismisses individual identi- ties. On that scale of values, the Ford-Nixon pardon can not be justified as a man-to-man transac- tion. A President pardoned a former President. What did he pardon him for? For "all offenses against the United States" that Mr. Nixon "has committed or may have committed" as President. And what WERE those offenses? No- where does the pardon proclama- People's forum Final offer To Ihe-Editor: I have a personal friend who has worked at the Roosevelt hotel as a maid for some 13 years. During her eight hours worked, she is assigned 17 rooms pur day to clean, and on some days, has lo iravcl two to three floors to complete her 17 rooms. She has to see to it that new. fresh linen is brought up to her floors from (lie basement of the hotel. Her wage scale is per hour. The management's final proposal in wages was 18 cents, not now, but on Jan. 1, 1976, then 10 cents on Jan. 1, 1977 a i total wage increase of 28 cents for three years. In addition, their identity would he taken away and work assigned in laundry and houseman's duties a massed classification to further additional workloads. In addition, the hotel's final offer took away all forms of overtime, even holidays, with Ihe open right in schedule work longer than eight-hour days at straight time. As of this (Into. Mr. Cook has withdrawn his final offer, and leaves nothing on the bargaining table. I think the community must evaluate the needs of these people on strike and recognize the plight of these workers in their endeavors. I support (hem per- cent. Klainc Pisney 1140 1 auinuc XVV Walking To the Editor: .It was with great interns! dial I read Frank Nyc's evaluation (Political Notes. Aug. 25) of the possible success of U. S. senate candidate David Stanley in his walking campaign of Iowa. It is I rue I hat Mr. Stanley has adopted the winning walk of Dick Clark and Daniel Walker. No one who has walked has lost lo dale. Hut Mr. Nye neglected In point mil Inn other Stanley campaign items. Besides (ion say. Nowhere does" a public record spell out Mr. Nixon's wrongs as hard, established fact instead of general, unproven ac- cusation. What does Mr. Nixon say were his offenses? "Not acting more decisively and more forthrightly" in his dealing with the Watergate events. "Mistakes and misjudg- ments" that led to a "belief" in others that some of his Watergate actions were "illegal." "The way 1 tried to deal with Watergate." Nothing that would document in any way what Mr. Ford alludes to as "all crimes Hard public questions burn de- spite the quenching effort of the President. How can someone formally be pardoned for some- thing which no formal record at- tests that he did? How can every- body else involved in "all crimes" of Watergate continue lo pay for them personally or continue to be prosecuted for them if the one official finally accountable goes free, unjudged? How can a system of government be trusted to give everybody equal justice when a gross exception for one person sets aside the institution's public force? The time for laudable compas- sion and a personal pardon to somebody guilty of crime is after the facts or the plea or the verdict have settled all questions about it. Few would begrudge such a per- sonal lift to any President de- posed. The way to handle such compassion is by honoring pro- cedures that assure the system's fairness and retain the people's trust in something bigger than the biggest power-figure serving them. The Nixon pardon would serve justice and compassion as an end- game gesture for one key compet- itor who cheated and lost. But now its timing and its context with the Scoreboard indecisive mark it as a setback to the sys- tem, a downer for public respect and a regrettable mistake. using the walk, Stanley sports John Culver's winning campaign colors, and Richard Nixon's winning campaign ethics and tactics. Because of Stanley's total, nonimaginative adoption of campaign finalities of others, I feel that lowans will reject David Stanley's senate bid. Surely lowans will see through Stanley. The question is: Does Frank Nye? Hubert A. Campagna Muscalinc Heritage To the Editor I am glad to see thai Ihe movement toward preserving the Czech heritage is gaining momentum. Wilh the enormous success of last year's exhibit of fine arts by the Cedar Rapids Art Cen- ter, il only proved how much interest I here is among general public in these treasures. I feel thai if we in America, especially the younger generations, don't keep the heritage of Czechoslova- kia alive, the communisls will have accomplished whal they set out to do destroy our Czech heritage. As I understand them, preliminary plans to transform Sixteenth avenue SW into a typical Czech village include a suitable museum to store and exhibit Czech fine arts. If local Czechs succeeded in main- taining Czech school for over years and Ihe Czechoslovak Society nf Amer- ica (a nationally known fraternal group wilh several local lodges) reached this year the I2lllh anniversary of its exis- Ifiice. il should serve as an added inccii- I He In pursue Ihis worthy project of prcson inj; hcrilage T. B. Illulmcck 137Thirly-scvenlh streel NE Detectible Conscience is that smaller inner voice thai tells you that the Internal Revenue Smiic might check .vour return. Delroil l-icc Press By Tom Wicker NEW YORK A business man is convicted of tax evasion. A federal judge sentences him to three years in prison and a fine, the maximum allowed by law. The business man may not know it, but If lie hud only been in another courtroom maybe one just next door, or in the next federal district, or in a neighboring state he might have got off with three months and a fine. A cub driver is convicted of making a heroin sale. A federal judge hits him with 10 years in prison, Maybe (he driver thinks thai isn't so bad, since lie could have got the maximum 15. But there is at least one other federal judge in the same circuit who would have sentenced him to only one year in pris- on, the minimum, for precisely Ihe same offense. The two cases are hypothetical bill typical. They were among those cited in a survey of how each of real federal judges, all on Ihe (rial bench of the sec- ond circuit in New York, Connecticut and Vermont, would sentence in each of 30 cases. The results, just presented to the circuit's Judicial Conference, suggest not only the vast disparity among judges in the sentences they impose for the same offense; they also illustrate the extent to which criminal justice in America can be arbitrary, capricious and inequitable alt down the line. At point after point, from arrest through trial, conviction and sentencing to prison and parole, the system is stud- ded with opportunities for judicial and administrative "discretion." This is so that judges and other responsible offi- cials can make allowances for special or mitigating circumstances, show lenien- cy when warranted, and attempt tn make the facts of each case determine its proper disposition. Discretion has two sides. What was intended to foster the mercy and effec- tiveness of the law can and all too often 'Aw, cheer op after you suffer a little more you 'II be in line for a presidential pardon' does result in good lawyers getting eas- ier sentences for their clients than those handed out to poorly represented offend- ers: or in wealthy and influential de- lendanls getting off more, lightly than others. "Discretion" can also be used to accommodate personal whims and pre- judice and to favor personal or political friends; sometimes discretion can bo bought, by one form of bribery or an- other. Discretion can give great weight to complicated bureaucratic rules for instance, in parole hearings. It can lie- used not only to favor some people, but to crack down harshly on others, often without justification by the facts of a case. The supreme court has ruled, in effect, that discretion in whether or not to impose capital punishment in differ- ent cases of the same offense makes the death penally "cruel and unusual pun- ishment." Of disciplines forced and voluntary By William F. PRESIDENT FORD said some strange things, over at Ohio State. Rather it was the juxtaposition that was strange. On the one hand he spoke sheer economic orthodoxy. On the other, he applauded the achievements of a slave state. It is one of the paradoxes he inherited from Mr. Nixon, but one which he apparently i carries easily. He spoke about China. He visited China in 1972, he recalled, and he knows from what he saw with his own eyes, and from the figures he has since perused, that the Chinese economy is improving by leaps and bounds. More precisely, he said that it was "gaining momentum." Mr. Ford then explained that in order lo experience economic progress without inflation, it is necessary to in- crease productivity. In order lo increase productivity, a people must exercise a combination of two virtues. The first is self-restraint; the second, creativity. Now: the Chinese certainly exercise self-restraint. If there was visible lo President Ford during his visit lo China a single impulse toward personal free- dom, he saw something I did not see earlier in the same year, or any of the other journalists I traveled with. For Mr. Ford to comment seriously that Ihe young people of China are "extremely well disciplined" flirts with gallows humor. We are still reminded, every decade or so, of the remark made by Captain Eddie Rickenbackcr, re- turned from a Potemkin tour through the Soviet Union shortly after the world war, that it was a remarkable place "no labor union troubles." It would be a litlle like returning from Hitler Germany in 1945 and remarking the total absence nf any problems with Jews. Discipline is a virtue when it is self- imposed. When il is imposed, as in China, by screaming Red Guards who roast dissent, and nowadays forage for any inclination by their fellow citizens loward Confucius, or Beellioven, you have a kind of discipline that was exer- cised by galley slaves who, in silence and in darkness, propel their craft whithersoever Ihe governor listclh. This is not something lo celebrate, even if il can be established that Ihe craft is "gaining momentum." They run awfully fast at the Olympics, but undoubtedly they could be got lo run even faster if they were being chased by tanks. One worries about such lapses. And recalls that haunted moment at Dart- mouth university. It was (a) a few years after Orwell's sunburst, his novel "1984" depicting the grim character of llic total- itarian system to come, the authority of which would go by the name of "Big and (b) a few months after the election of Dwight D. Eisenhower as President of the United States. Ike went up to New Hampshire lo address Ihe students and would you be- lieve it, he told them that he wanted the government lo be "nothing more than a Big Brother lo them." II was then that Republicans reached the sorrowful conclusion Dial if Zane Grey hadn't William F. Buckley, jr. Officers fall; anybody noticing? Insights Liberty without obedience is confusion, and obedience without liberty is slavery. William Pann By James J. Kilparrick Every September brings from the FBI its uniform crime report. The tabulated figures are mutely assembled, row on row, as neatly as troops, as silent as tombstones. With orderly precision they tell of disorder, violence and death. Permit me to speak nf one figure only: 127. That is the number of local, county and stale law enforcement officers who were slain last year in the line of duty. It was Ihe highest annual figure ever re- corded. Director Clarence Kclley's report is a bloodless, faceless, computerized af- fair. Every drop of emotion is drained away. No trace of drama remains. Out of the punch-card correlations, certain composite images emerge, but Ihe im- ages do not speak to our senses: We do not hear the shots, or smell the danger, or see faces contorted in fear or rage. We have only the silent tabulations. Over the last ten years, 85K officers have died from criminal action. Of these, 013 have died from handguns. For no particular reason that presents itself, Sunday nights arc the most dangerous nights, and the hours between 10 p.m. and 2 a.m. are Hie most dangerous --hours. Mist officers ar'- slam in robbery pursuit or in attempting other arrests. Last year saw 29 officers killed in re- sponding to "disturbance calls." It is a shocking reflection on our violent society that 25 policemen were killed as they made routine Iraffic stops. The composite image of the dead officer indicates that he was white (10 percent were black, 3 percent other that lie was in his late twenties or early thirties (median police service, and that he most probably died on regular patrol duty in his squad car. But of the 127 slain last year, 11 actually were off-duty a! the time. They died in the highest tradition of law en- forc'.-ment, which holds that an officer of Ihe law is never "off duty." Who were their killers? All but six of last year's killings were cleared by ar- rcsl. Of the identified offenders, 77 percent had prior criminal records, til percent hail previously been convicted and released on parole or probation. Six- leen percent actually were on parole or probation when they were involved in the killing of an officer. The tabulations march on and nn, mutely arithmetical, bill no vivid imagi- nation is required to transform Ihe silent facts lo flesh and blood: These were 127 men who died in Ihe police service; most nf Iliem left widows and children behind. The hard profession of law enforcement ili'nirinds Ihril officers risk Ihnr lues, these 127 risked, and lost. Discretion is, of course, almost una- voidable from the start of a criminal case; an arresting officer has to decide whom In arrest and what to charge. From there on, the process is continu- ous. Someone decides whether lo set bail, and if so, how much. The prosecu- tor decides whether In prosecute, and for what, or whether to bargain for a plea, and what kind of a plea. A judge must sentence and in the second circuit survey, one was found Imposing a 20-year sentence, with a fine, for whal another thought deserved only three years and no fine. The indeterminate sentences mosl prisoners face mean, basically, that they do not know when they will get out a substantial punishment in itself and that prison and parole authorities have great and often arbitrary powers over the final length of the term. This can mean that the most independent, strong-minded and capable inmates, who tend lo chafe under the regimenta- tion and idleness of prison life, wind up doing more time as "troublemakers." Those who adjust well to prison, and are quickly paroled for a "good often are the least able to "make it" in the competitive outside world. Even when inmates win their re- lease, most of them still have to contend often for many years wilh the "discretion" of the parole officer, his maze of restrictions and regulations, and his nearly arbitrary power lo send a parolee back lo prison for violations nf even minor parole rules. It can hardly be argued that all dis- cretion should be eliminated from the criminal justice system. But the second circuit sentencing survey is only one nf many evidences that there are too many inequities and miscarriages of justice in the process of enforcing the law, that shorter prison terms, made mandatory and the same length for everyone con- victed of the same offense, wilh no ar- bitrary parole system to give one person a break over another, would be more equitable for all, more effective in deter- ring crime, and less destructive in their effects on inmates and their families. written about it, Dwight Eisenhower wouldn't know about it. What Mr. Ford needs to ask himself is whether that freedom which we cele- brate in this country has become count- er-productive. I mean, in the strictesl sense nf the word. Is il true that because we as citizens arc free in a way thai the Chinese arc not, that Ihe Chinese are gaining momentum? Do we need a little of (he whiplash, so that we too might be- come "extremely well There are still a few reactionaries call- ing for wage and price controls, which arc a step in the direction of authoritari- anism. But Mr. Ford says he disap- proves of them. Or could it-be (hat it isn't more of the slick that we need, but more nf (he carrot? In order to increase productivity, Ihcrc has got to be incentive. Is that incentive substantially diminished be- cause of Ihe exactions already imposed on creative people? I mean, of course, and primarily, the tax structure. And, secondarily, restrictive practices, whether caused by labor unions or pro- tected monopolies or oligopolies. Forty percent of what we all earn is sucked in by the government. Increase that 40 percent to 100 percent and you have the Chinese situation. What would happen if we went Ihe oilier way? Back, say, to 25 percent. There would be an interesting al- ternative, and one drools at the thought of it. Mr. Ford says that we "welcome" the challenge of Chinese competition. We could dramatize this by saying in as many words that free men work better and more productively than slaves. And by lightening the load on Ihe American worker rather than increasing it. Washlno'on Slnr Syndicate Another View "Pssstl Interested in some black market conning jars, Some appropriate method should be found, it seems to me, for the living not only lo honor these dead but also to honor the profession in which they served. Perhaps a deserved tribute could be arranged if Ihe President annually were to invite lo Ihe While House the families of the slain officers, there lo receive medals in memoriam. If such a ceremony were held in conjunction with Law day, the sacrifices implicit in law enforcement might be dramatically em- phasized. Another approach is suggested in a bill sponsored chiefly by Senators John McClcllan of Arkansas and Roman llruska of Nebraska. The bill has passed both house and senate, in different ver- sions, but has been languishing since last April for want of further action. It would provide for memorial stipends to the families of both police and firemen killed by felonious action or by accident in (he line of duly The McClellan-llruska bill would cost an estimated J20 million a year. It is a large sum, perhaps unwisely large; Hie measure mighl transform an obligation of honor into a bureaiicralic indemnity, and it raises questions of federalism that might belter be left at resl. Hut the basic idea lias merit. Police officers know lit- He nf public honor or respect in life; in some fashion, to honor those who pursued law anil found death in-
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