Preventing Future Wacos and Ruby Ridges
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.
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The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.