Washington, DC, October 24, 1995 -- By virtue of their role in the justice system, the
nation's criminal defense lawyers are uniquely positioned to observe how law enforcement and
prosecutorial agencies perform their work. Before the headline-grabbing events at Waco and
Ruby Ridge, NACDL's members were painfully aware of the increasingly militaristic culture
growing throughout law enforcement in the United States.
Thus, we shook our heads in sad understanding when members of a 13-agency joint
federal-state task force shot Donald Scott dead in his own living room while executing a bogus
search warrant in a dynamic entry raid; we watched wearily as businessman Donald Carlson
sought redress from federal law enforcement agencies for repeatedly shooting him when they
mistakenly raided his home based on an informant's tip; and we experienced a tragic sense of
inevitability when Boston Minister Accelynne Williams died of a heart attack while
handcuffed to a radiator in his apartment during an errant raid by police.
Activities uncovered by the Mollen Commission in New York and by the recent
prosecution of police officers in Philadelphia, and the racism uncovered in the Los Angeles
Police Department show that overreaching, outrageous carelessness -- and callousness -- and
outright illegality are certainly not limited to federal law enforcement. But the federal
government, whose agents wield so much power over the lives of American citizens, and
whose law enforcement policies and practices have long been thought to serve as models for
state governments, has a unique and special responsibility to carefully control their actions.
That responsibility is anchored first and foremost in the Constitution of the United States.
Ironically, both houses of Congress are considering measures to water down Americans'
constitutional protections and confer yet more powers on the very agencies responsible for the
debacles at Waco and Ruby Ridge. The House has passed, and the Senate is considering,
legislation to curtail the exclusionary rule -- the 80-year-old rule adopted and consistently
reaffirmed by the Supreme Court as the only effective means of enforcing the Fourth
Amendment's limitations on government actions. The Senate has passed, and the House is
considering, so-called "anti-terrorism" legislation that would dramatically expand law
enforcement powers, including wiretap authority, greatly multiplying invitations for abuse.
And the Senate has before it a proposal to further expand the prerogatives of the Justice
Department by exempting federal prosecutors from the ethical rules that govern all lawyers.
Abuse of power by prosecutors may be the most dangerous and least detectable form of
government overreaching. As one federal judge observed recently, prosecutors wield
enormous power over the lives of citizens, much of it effectively beyond public control. The
Supreme Court decades ago proclaimed that the government must disclose to criminal
defendants all evidence it has that might indicate a defendant's innocence. Yet -- as
information that came to light in the course of the House hearings on Waco revealed --
violations of the rule laid down in Brady v. Maryland remain the most common and insidious
form of prosecutorial misconduct. The Justice Department is already too lax and secretive in
overseeing and disciplining its army of prosecutors; this is emphatically not the time to loosen
further the reins on their conduct.
As we did almost two years ago when we wrote to President Clinton about these issues, NACDL joins with our colleagues in calling on Congress, the President, and the Attorney General to adopt the reforms detailed in today's letter to congressional leaders. We underscore, especially, the urgent need for the following actions:
- establish strict, detailed guidelines and oversight for search warrant applications and search warrants, especially those based on alleged "anonymous informants;"
- establish open discovery of prosecution files in federal criminal proceedings;
- strengthen oversight and discipline of prosecutors;
- establish and enforce strict rules governing the use of "dynamic entry" and deadly force by law enforcement personnel;
- establish a national commission to comprehensively review law enforcement practices and policies.
At the same time, NACDL urges Congress to refrain from wrecklessly loosening the
critical constitutional constraints so important to preserving the freedom we enjoy as
Americans. To be sure, crime and terrorism warrant profound concern, but let us not hastily
throw our constitutional rights at these problems, lest we suddenly find that, step by step,
we've surrendered what's precious about our country.
National Association of Criminal Defense Lawyers (NACDL)