When a recent argument inside the nightclub Tunnel in Chelsea spilled out onto the street, a 16-year old wound up fatally stabbed and another teen was shot. It was just another incident in a long line of troubles for the nightclub. In the last few years at Tunnel, an 18-year-old died of a drug overdose, another club-goer was shot and killed, and city officials have repeatedly accused the disco of promoting drugs, selling alcohol to minors, and evading taxes.
For Maria Garcia, who lives a few blocks away, the latest stabbing and shooting resulted in another sleepless night because of a neighborhood disco.
"There were police cars, people on the street, and ambulances," said Garcia. "It kept us up all night. We did not know what it was, but we knew it was something big."
Noise, drunken club-goers, litter, drug use, and violence are common occurrences because of nightclubs, Garcia says. "With several clubs all within a few blocks, we literally have thousands of people coming out of clubs between 2 and 4 o'clock in the morning, every day of the week."
As the head of a group called Chelsea Owners and Tenants for Neighborhood Preservation, Garcia is engaged in ongoing battles to get area nightspots like Twilo, Roxy, Limelight, and the Tunnel to be responsible neighbors. She also tries to keep new clubs from opening.
And, at least part of the time, she is successful. Recently, Garcia and her neighborhood organization stalled the efforts of two clubs, Tambourine on West 23rd Street and High Altitude on West 19th Street. While Garcia said the two victories were not the norm, they point to the growing power of residents in the ongoing battles between community groups and nightclubs, with city officials in-between.
Club owners claim they are often treated unfairly by the city, raided by the police, required to undergo a rigorous and expensive process of gaining permits, subjected to unfair expectations from the public and press.
What To Do If Your Neighbor Is A Noisy Nightclub Persistence is the key to dealing with noise, crowds, and other problems that may result from a disco in your neighborhood. But knowing whom to call will also save time, since different city agencies handle different problems. First, see if others have complained before you. Local community groups may have already taken up the cause. Tenant.net is a good resource for many neighborhood issues and may provide information about what is going on in your area. Second, it is best at least to make an attempt to contact a club directly, because the establishment may be accommodating. Filing an official complaint with a government agency before voicing concerns to the club may make it more difficult to reach a solution in the end. When you decide it is time to get the city involved, the first official stop is the Department of Environmental Protection, which handles complaints about noise from nightclubs and outside speaker systems. The general complaint phone number is 718 DEP-HELP (337-4357). The city also has a special quality of life hotline at 888-677-5433. The local police precinct handles noisy neighbors, boom boxes, noise outside of bars and clubs, and the general loudmouth who passes by your window at 2 a.m. Community Boards are the place to air grievances about general neighborhood issues, liquor licenses, and new clubs. You can always take it one step further and notify your city councilmember. The final step is the State Liquor Authority, which considers community response when it considers applications from establishments that want to sell alcohol. Recommendations from community boards and letters from elected officials do influence the decisions. The city office for the State Liquor Authority can be reached at 212-417-4002. |
"You are probably safer inside a club than in a school or on the street because of the measures most owners take," said Andrew Rasiej, president of the New York Nightlife Association, a coalition of club owners and music industry professionals.
Some argue that unlike Miami, a city that welcomes nightclubs as a vital part of its image and economy, New York is turning its back on the nightlife that helped make its name.
"If you look up dancing on the city's visitors website, all you get is ballet," said Rasiej.
In fact, the official New York visitor's website does offer some other options, but the lounge of the Marriott on Times Square (the website's top suggestion) is probably not what most have in mind when they want to experience the "city that never sleeps."
PROBLEMS BEHIND THE VELVET ROPE
At 11 p.m. on a Thursday, women in backless tops and platform heels and men in tight silky shirts stand outside the Cheeta nightclub on West 21st Street. They line up along a velvet rope, some shivering in a light drizzling rain, hoping that sometime soon they can convince the doorman that they are indeed on the guest list. The thumping bass of the electronic music inside booms out onto the street. The line is constant for the next few hours, the doormen allowing in a few parties at a time to keep up the appearance that this is such a fashionable place to be; how could it not be, if people are willing to wait in the rain to get in?
"I go out about three, sometimes four nights a week," said Ana Tallow, a 22-year-old student who has been waiting on line for 20 minutes. "It is just about going out and being with my friends."
By 2 a.m. patrons begin to flow out of the club, some staggering and laughing loudly. They whistle for double-parked taxis; the taxis honk back. This scene is a nightly occurrence, just part of what is expected outside of a club. But traffic and noise are just the beginning.
Last year, St. Vincent's hospital in Manhattan notified authorities of an increasing number of people who had overdosed on drugs and arrived in the emergency room via private ambulances. Several nightclubs, it turns out, keep ambulances on a kind of retainer, parked outside their door. The hospital reported treating four to five nightclub overdoses a night, twice as many as before. The medical emergencies are from relatively new drugs like the psychedelic Ecstasy, which can lead to dehydration, and the mixture of alcohol and GHB, commonly known as a date rape drug. Since 1994, the national number of medical emergencies from Ecstasy has increased ten times.
THE PLAYERS AND THE LAWS
New York Nightlife Association - A coalition of music companies and club owners that would like the city to look more favorably on the nightclub industry. Social Club Task Force - Building and Health Departments officials, Fire Marshall, and Police Department who make inspections. State Liquor Authority - Issues liquor licenses to New York establishments. Many in the city, including Queens Borough President, Claire Shulman do not think the state authority is responsive enough to city issues. Shulman has proposed a bill to create a City Liquor Authority. Department of Buildings - Issues certificate of occupancy for clubs. Department of Consumer Affairs - Issues cabaret licenses for dancing. Community Boards - Neighborhood government bodies hold public hearings and can vote to reject liquor license applications. Nuisance Abatement Law - Three arrests at a club means it can be shut down. Padavan Law - Named after one of its sponsors, Senator Frank Padavan, the law gives local communities a right to have their views expressed on certain liquor license applications. It does not give Community Boards the right to give the final rejection of an application, only to weigh in with their concerns. |
"Sure Ecstasy is a problem in some places. Sometimes as soon as you walk into a place, there is someone right there trying to sell you something," said Tallow, the student and club regular. "But clubs also get too much blame. People make their choices to find what they want. It is not necessarily the clubs' fault."
Two of the clubs that hires ambulances--Twilo and Roxy -- said the private ambulances are for the protection of their patrons.
"When people go down [from GHB], 911 is useless," said Jason McCarthy, the general manager of the Roxy in a recent New York Times article. "I do this to protect my clients who go into cardiac arrest."
Twilo, in particular, has had drug problems. Last summer, a medical student passed out on a dance floor and died. And two club-goers are suing the club alleging that employees hid them in a backroom when they overdosed so that police would not find out.
"We are blamed for everything and we are never given the benefit of the doubt," said Peter R. Sullivan, Twilo's lawyer. "The reason we are still open is because we have been able to prove to the courts that we are the safest club in New York."
The clubs also say they have asked for help from the police in fighting the drugs, but received no assistance.
High profile cases of guns and violence at clubs, particularly involving famous hip-hop stars, have also created negative perception. Last year1s shooting at Club New York that put rap stars Sean "Puffy" Combs and Jamal "Shyne" Barrow on trial produced daily news stories for months. Just weeks ago, rapper Jay-Z was charged with concealing a weapon outside the club Exit.
Such cases have apparently inspired the New York Police Department to create a special "hip-hop" patrol unit that cruises by certain hot spots looking for rappers involved in illicit activities.
CLUBS SPEAK OUT
Clubs say that the incidents that make headlines are small when the number of discos and patrons are considered. They also contend that many of their efforts for improving relations with the city and residents (like a recorded message in cabs from Madonna urging club-goers to be responsible) have been snubbed by city officials.
"When there are events at Madison Square Garden or parades, organizers hire off-duty police officers," said Andrew Rasiej, who also runs Digital Club Network, which broadcasts music events online. "We've asked police and the city for the same thing. Their response has been: No."
Another consideration, club owners say, should be the positive economic impact they have on the city.
Indeed, a recent study by the Manhattan Borough President's office reported that the city's bars, clubs, and ballrooms generate three billion dollars for the local economy and account for more than 27,000 jobs. A survey commissioned by the New York Nightlife Association claims that the nightclub industry brings in more people than the city1s sports teams, Broadway theaters, the Metropolitan Museum of Art and the Empire State Building combined.
And New York does not provide a particularly business friendly environment for those who want to open a disco. A total of 26 separate credentials from various city agencies are needed, and some owners say they have spent more than one million dollars without assurance that their club will be allowed to open.
Zoning may be the most difficult part of the equation.
In the past, clubs could find homes in neighborhoods that were more industrial, but as housing and land for new residential development grows more scarce, the areas that welcome nightclubs are growing smaller. In the mid-19801s, neighborhoods like the West Side were rezoned for mixed use by commercial, real estate, and manufacturing interests. The zoning threw everyone into inevitable conflict.
"When you sell a loft in the meatpacking district for two million dollars, those people expect the same quality of life as those who live on Gramercy Park," said Rasiej. "But it is not going to happen."
Of course, the battles between nightclubs, residents, and politicians are nothing new.
In the 1860's John Allen, the owner of a dance hall on Water Street that doubled as a bordello, was commonly referred to as the "wickedest man in New York." By 1910, the political reformers were able to convince the state legislature to amend the city charter so that it required licensing of dance halls. Soon after, many social venues began calling themselves dance academies and offered dance instruction in an effort to circumvent regulations and present a more positive image to the public.
Opposition did not deter dancers and clubs. By 1925, there were 786 licensed dance spaces in the five boroughs, 238 of which were in Manhattan. And a study at the same time calculated that 14 percent of the city1s males and 10 percent of the city1s females between 17 and 40 years old went dancing at least once a week.
The modern discotheque with its fashionable celebrities, elaborate sound systems and lighting, and unique problems did not emerge until the 19601s.
Early discotheques included the fashionable Ondine on East 59th Street, Le Club on East 55th Street, and Arthur, owned by the son of Adlai Stevenson, that featured rock and roll bands. The Electric Circus on St. Mark's Place opened in 1967 and featured trapeze performance artists as well as parties for famous people, hippies, and students. In 1977, working-class discos in the boroughs were made world famous by the film, Saturday Night Fever.
Studio 54 became the best-known club of the 1970's with its policy of selective admittance, drug use, and decadent parties. The party may have seemed to go on forever, but in fact it ended in 1979, when the owners of Studio 54, Stephen Rubell and Ian Schrager were arrested by federal agents and convicted of tax evasion.
By the 19801s clubs began opening in unused warehouses in Chelsea, Lower Manhattan, and the meatpacking district. This angered residents. They began organizing against them.
The most tragic and deadly nightclub incident happened in the Bronx in 1990 when Julio Gonzalez set fire to Happy Land Social Club after an argument with his girlfriend. The fire claimed 87 lives and highlighted the problem of illegal clubs that operate without proper licenses and safe building codes.
"New York has a well-deserved reputation as the 'city that never sleeps,'" said Manhattan Borough President Virginia Fields. "Unfortunately, in some instances, conflicts sometimes arise between these types of businesses and communities in which they are located."
Toward the end of helping clubs become good neighbors, Fields has issued a number of recommendations that include creating special police units to enforce existing rules on nightclubs, reform of the State Liquor Authority procedures, and improved zoning.
Other local measures are also underway. West Side City Councilmember Christine Quinn said community boards two and four in her area have created joint hearings on the use of the meatpacking district that creates better dialogue between nightclubs and residents.
However, community groups admit that even well meaning club owners are fighting a losing battle. "The days when the neighborhood would welcome a large venue for 2,000 people are over," said Garcia. "And there is no doubt that any new club is paying for all of the bad people that came before them."
Non-profits, like Dance Safe an organization that works to promote safety and health at raves and nightclubs, are also doing their part to try to improve the scene. Dance Safe sets ups booths and provides water, information, condoms, and ear plugs. They sometimes even perform a chemical analysis of patrons' Ecstasy pills to make sure they do not contain contaminants.
"People are going to do certain things," said Paul Hale of the New York City Dance Safe chapter. "We do not condone or condemn drug use. We try to educate and reduce the harm people can do to themselves and others."
Hale also noted that most of the people he encounters at clubs are sober and that many overdoses of Ecstasy and GBH have occurred at frat houses and college parties, not just at nightclubs.
Ultimately, the battles over nightclubs pitch each interest against a host of opponents.
Residents complain that police, the State Liquor Authority, and the city are not doing enough to enforce the present laws. The city complains that the long court cases against nightclubs often do not produce results because of unenforceable laws. Fire and police officials say they are cracking down on the problem and that surprise raids that they conduct yield evidence that clubs are routinely breaking the law and putting patrons in danger.
Nightclubs complain that they have few friends in the city.
The only people not complaining are the thousands of young people who, egged on by hip magazines and designers and music promoters and various celebrities, each night are on the lookout for the latest, hottest, and most fashionable place to be. Or, if they are complaining, nobody can hear them through the beat.
What is the proper professional punishment for a mistake that results in a person's death? A physician's fatal error, for example, can result in the withdrawal of hospital privileges and sometimes the revocation of the medical license, though seldom is either punishment imposed for a first offense. Is medical malpractice a good analogy for police malpractice? What should the punishment be for a police officer's fatal error?
Police Commissioner Bernard Kerik recently announced that the four officers acquitted by an upstate jury of all criminal charges in the killing of Amadou Diallo would be confined to desk jobs, but not punished further. (The 22-year-old unarmed West African street vendor was killed on the night of Feb. 4, 1999, while standing in front of what turned out to be his Bronx home.)
New Yorkers, according to the New York Daily News, do not agree with Kerik.
In a Daily News/New York 1 poll, respondents were told that the police department "has decided not to discipline the four officers involved in the shooting death of Amadou Diallo." When asked whether they approved or disapproved of the decision, only 21 percent approved, and 64 percent disapproved.
These overall figures mask a huge racial disparity: 89 percent of black New Yorkers disapproved of Kerik's decision, and only 2 percent approved. White New Yorkers, however, showed a different pattern: only 43 percent disapproved, 39 percent approved, and 18 percent were not sure.
The public's distress with the police department's handling of the shooting remains very high even as crime in the city has hit a record low. The police department announced on April 30 that murder, which had already been at the lowest level in three decades, had plunged another 18 percent, from 237 to 194, during the first four months of 2001. Both robbery and burglary were also down more than 16 percent.
Commissioner Kerik, quoted in the New York Post, credited police department initiatives for the crime drop, citing the department's focus on gangs, its high priority on warrants for violent felons (warrant arrests are up 50 percent), and the fine-tuning of the department's assault on drugs. Kerik summarized his approach as "going after the bad people and taking them off the streets."
But, of course, the tragedy of Amadou Diallo was that he wasn't a bad guy. He was a good person, killed by the police searching for a vicious rapist. And while New Yorkers are very happy indeed with the drop in crime, they are chagrinned about the mild official punishment of the four officers, who were barely sanctioned for police malpractice.
Mickey Blum, president of Blum & Weprin, which conducts the polling for the Daily News and New York 1, says that New York opinion has stayed fairly consistent since the shooting. "Something dreadful happened," she says. "Something went very wrong. And most New Yorkers have pretty consistently felt that those cops and the department should be held responsible in some way." She adds that many New Yorkers think that if Diallo had been white he would not have been killed.
This reminds New Yorkers once again that a racial disparity exists on many issues of crime and justice. Much of that disparity is due to the reality that day in, day out, black Americans are more vulnerable than white Americans to being stopped by the police, fairly or unfairly.
As Harvard Law Professor Randall Kennedy points out in his book, "Race, Crime, and the Law" (Pantheon), cops stopping an African-American male for no apparent reason other than the color of his skin is not unlawful in most jurisdictions. The courts permit law-enforcement officials to use race as a "risk factor" that justifies a stop-and-search procedure.
Kennedy calls this strategic racial discrimination by police officers a "short cut," a helpful way for police to use their resources more efficiently. If 80 percent of drug-runners are young black men, what's wrong with taking race into account when investigating the crime, asks Kennedy, himself an African-American.
What's wrong, he answers, is that the police use of race as a proxy for suspiciousness creates enormous day-to-day distrust and alienation among black Americans. And that matters to all Americans for two reasons. First, opening the door to strategic, rational discrimination condoned by the courts (including the Supreme Court) also opens the door to invidious racial discrimination, the kind that all decent people would condemn.
Second, a black person's being stopped by the guardians of law and order comes back to haunt the community when those who have been detained become lawyers, judges, jurors, and bring with them the anger they feel over unwarranted harassment and humiliation by police and, by extension, the courts. Halting this practice will not solve all problems, but will go far toward draining the deep sense of injustice African-Americans feel, Kennedy argues.
In the May 2 Daily News, mayoral candidate Fernando Ferrer applies a similar argument to New York, pointing out that what he calls the "tragically bad judgment" of the Diallo officers cost an innocent man his life. This should, argues Ferrer, cost them their badges and guns. The failure "to prosecute police misconduct vigorously," he writes, sends the message that the justice system is flawed, and that it protects others, not them. He concludes: "When you create pervasive doubt about the fairness of the system, it becomes that much more difficult for law enforcement to win convictions before juries, no matter how legitimate the case."
The tragedy of Diallo is so enormous that it overwhelms a more routine police-community problem -- and that's the problem of discretionary stops by police of people either acting suspiciously or committing minor offenses. There is no question but that a safe city requires smart, competent, decent police officers to patrol the streets and exercise careful judgment in stopping citizens. Yet the problem of discretionary stop-and-frisks has festered in New York for a long time, as has the problem of full arrests for minor offenses. Now the Supreme Court has weighed in with a 5-4 decision validating full arrest -- including handcuffs and jail -- for a petty offense. In the case before the Court, it was a suburban soccer mom in Texas not wearing a seat belt.
A cop stopped Gail Atwater, who said that she had been driving slowly (15 miles per hour) without a seat belt on an empty street to look for a lost toy. She had let her children unbuckle their belts to look out the windows.
Officer Turek had stopped her once before for not wearing a seat belt, a misdemeanor in Texas. Writing for the majority, Justice David Souter summarized what happened: "Respondent Turek, then a Lago Vista policeman, observed the seat-belt violations, pulled Atwater over, verbally berated her, handcuffed her, placed her in his squad car and drove her to the local police station, where she was made to remove her shoes, jewelry and eyeglasses, and empty her pockets. Officers took her 'mug shot' and placed her, alone, in a jail cell for about an hour, after which she was taken before a magistrate and released on bond. She was charged with, among other things, violating the seatbelt law. She pleaded no contest to the seat-belt misdemeanors and paid a $50 fine."
Thus the Supreme Court held Officer Turek's action to be reasonable under the Fourth Amendment, which begins: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." Souter noted the humiliating character of the arrest over a "very minor criminal offense," but said he was comfortable relying on the "good sense" of local lawmakers and peace officers to keep such humiliating arrests from becoming excessive. He said there is a "dearth of horribles demanding redress."
A dissent, written by Justice Sandra Day O'Connor, pointed out the officer's intent to "threaten, frighten and humiliate" Atwater, and the completely unnecessary character of the arrest and jailing. The common law, argued O'Connor, would have barred the arrest because the traffic violation was not a breach of the peace, making the arrest unreasonable.
Most Americans probably thought that our majestic U.S. Constitution protected us from this kind of police excess. An arrest, of course, is the ultimate seizure of the person -- and an arrest over a patently trivial matter would seem on its face to be unreasonable.
In the last few years the Supreme Court has tended to affirm the authority of police officers to stop, detain, and search citizens in a wide variety of circumstances. It has substantially expanded the ability of cops to seize and search vehicles, including handbags found in vehicles, without warrants. It has okayed police stopping someone who has fled on sight of a cop in a high-crime area. On the other hand, the court also held that a cop could not search a vehicle that had been stopped for a traffic violation and only a traffic violation. Thus there's some irony that it was a seat-belt violation -- a truly low-level offense -- that has provoked this assertion of a cop's authority for full arrest for any offense.
Newspaper editorials across the country have expressed a great deal of anger and outrage about the decision. But here's the shocking thing: The Supreme Court is right, or at least "right" in the sense that legislatures and courts have been approving the practice of what they call "warrantless" arrests for misdemeanors for 200 years. So why are many of us shocked? Perhaps because it has not happened to most of us personally.
Criminal defense lawyer Robert E. Levy points out that in New York a police officer can arrest anyone for any offense, including a petty offense, that is committed in his or her presence. A cop can arrest you for a speeding ticket. Cops generally don't, because they are guided by internal police memoranda on what is "arrestable." For a while, says Levy, petty offenses were arrestable in New York. A public uproar resulted in the police pulling back from this. The public didn't want arrests for jay-walking, littering, or dogs off the leash, however annoying some of these habits might be.
Levy also notes that an arrest is not supposed to be a punishment. Its purpose is to gain the appearance of the offender before a magistrate for adjudication. The cop is simply a conduit. If the offender has identification or is known personally to the cop -- as was Mrs. Atwater in the Texas seatbelt case -- and if there is no other reason requiring an arrest, such as hidden drugs or a weapon, then a desk appearance ticket is the usual and proper procedure.
But here is the importance for New York and other big cities: Misdemeanors or less have provoked some of the worst police incidents. Rodney King's driving while intoxicated in Los Angeles, Anthony Baez in the Bronx tossing a football that hit a police car, or the young man with several misdemeanors outstanding killed by a police officer in Cincinnati, precipitating the recent riots. They were all minor offenses with grave consequences.
And the New York Police Department's policy of regularly strip searching people arrested on misdemeanor charges cost the city $50 million four months ago to settle a class action law suit involving 63,000 people illegally searched in Manhattan and Queens. You cannot do a strip search if you know who the person is, says Levy, and have no reason to think drugs or weapons or anything dangerous is involved beyond the petty offense: "The key word in the Fourth Amendment is 'unreasonable.' The public was outraged, the city agreed to the settlements, and the strip searches stopped." (The strip searches apparently continued in Brooklyn Central Booking, according to a suit filed May 2 in federal court. Newsday says that the owner of a manufacturing company, a teacher, a high school student and four other Brooklyn residents have sued the city claiming they were improperly strip searched after arrests on misdemeanor charges. Their lawyers said thousands of other people arrested on misdemeanor charges may also have been improperly searched over the past three years.)
If the Supreme Court is right that a full arrest can follow an offense, no matter how petty, then we need legislation to tighten arrest standards to ensure that spiteful officers, like Officer Turek in Texas, do no further harm. Better yet, we need legislation limiting arrests for trivial offenses.
Says Levy: "In this modern age, the cop is in constant radio communication, and can always find out whether a person is wanted or not. People these days are generally carrying enough identification that it would be unreasonable to seize them when all you want them to do is appear in order to pay a fine. Certainly statutes should forbid an arrest with jail when the offence is one that is either highly unlikely to lead to jail--or when jail is even statutorily forbidden."
The day the Supreme Court decision was handed down affirming the reasonableness of the arrest, the Texas legislature passed a bill outlawing such arrests. The New York State legislature should consider the same. Texans are no longer vulnerable. But New Yorkers are.
Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.
From the founding of the country forward, executive pardons by presidents and governors have been a regular means of mercifully correcting overly harsh laws or easing overly punitive sentencing in individual cases. As former pardon attorney Margaret Colgate Love (Department of Justice, 1990-1997) pointed out in the June 2000 Fordham Urban Law Journal, Americans incorrectly tend to associate pardons with politics and controversy. (I would add celebrity and notoriety to the list.) Few realize that for most of American history the pardon power was exercised routinely and quietly to give relief to ordinary people convicted of what Love calls "garden-variety" crimes.
Writing several months before the Clinton exit pardons erupted onto the American scene, Love deplored the disuse and disrepute into which she feared the federal pardon power had fallen. Pardons are a necessary tool for correcting what she called the "harsh inflexibility" of the criminal justice system: in so many cases the legally mandated punishment seems morally wrong. Just as serious, she wrote, the "growing crime control infrastructure . . . reflects poorly on our national humanity."
Up until the Reagan administration, every administration from Franklin Roosevelt's to Jimmy Carter's had acted favorably on 30 percent or more of pardon petitions, says Love. Under Reagan, the percentage of favorable pardons dropped by a third to 20 percent. President Reagan also reversed course over his predecessors in absolute numbers. He pardoned 393 individuals in his two terms, compared to the 534 pardoned by President Carter in one term, says Love.
President Bush went even further. He granted only 68 pardons in his one term, or 7 percent of pardon petitions--perhaps in part because the Willie Horton clemency scandal in Massachusetts had helped him defeat Gov. Dukakis for the presidency.
Love attributes the decline in pardons to the politics of crime control, in which both Republicans and Democrats have competed for advantage in a "race to incarcerate," producing what Love calls "a prison industrial complex with a powerful institutional constituency."
And now we have the Clinton exit mess, a controversy which is not about to go away in New York, home or former home to many of those pardoned. Since some of the pardons are thought to have been helpful to the successful campaign of our new junior U.S. Senator, Hillary Clinton, the specter of unseemly politics floats in the background.
This is not the first round of pardon controversy in New York. In August 1999 Clinton granted clemency to 16 members of a Puerto Rican nationalist group serving lengthy prison sentences for terrorism. Republicans charged that clemency was an attempt to strengthen Mrs. Clinton's Senate bid. The White House denied she had played any role. (The allegations were examined in the Findings of the Committee on Government Reform, available online)
Thus the pardon cauldron already held a volatile mix before the early February announcement from the Bush administration that Mary Jo White, the U.S. attorney for the Southern District of New York, would be the prosecutor in charge of investigating the pardons. The Chicago Sun-Times called her "the most feared and respected prosecutor in the United States." (Even without White, the Southern District, which includes Manhattan, is considered to be the highest profile prosecutor's office in the nation.)
Although Clinton appointed White in 1993, they quickly became non-friends. Their aloof relationship cooled even further when she looked into charges that the Teamsters Union funneled cash to the Democratic Party during the 1996 election. President Clinton failed to consult her or her office when he pardoned New Yorkers or former New Yorkers, including fugitive financier Marc Rich and his partner Pincus Green.
Now White has opened a criminal investigation about whether Rich contributed to the Democratic Party in exchange for the pardons. (Rich's former wife gave hundreds of thousands of dollars to the party and to Clinton's presidential library.) Or, for that matter, did Rich or Green commit any other violations of federal law? In grand prosecutorial tradition, White is embarking upon a wide-open investigation. She is authorized by the Bush administration to investigate or delegate the investigation of any of the 177 pardons granted by Clinton during his last days in office.
On one historical fact, every historian agrees: The Founders of this nation did not want a king. But because most of them did want a powerful executive, they looked to the model of the English monarchy for guidance. They discarded some kingly powers (such as unlimited control of appointments), and chose the ones they thought most suitable--including the unlimited power to pardon.
They were confident they had constructed the office well. Indeed, Alexander Hamilton in the Federalist Papers predicted the presidency would be "filled by characters preeminent for ability and virtue." This assumption, though quickly proved false, makes the pardoning power seem less reckless.
More important to them, however, were the troubled times of the 18th century, riddled with class warfare, particularly in England. Not accidentally, it was also a time of brutal criminal law, in which nearly every offense--theft, forgery, poaching--was a capital crime. While juries regularly tempered the law's cruelty by refusing to convict, huge numbers of English subjects were routinely sentenced to be hanged. The king's pardon, supported even by conservative Parliamentarians like Edmund Burke, moderated the law when necessary, to retain popular support.
As historian Douglas Hay argued in his study of 18th century crime, "The law was important as gross coercion; it was equally important as ideology. Its majesty, justice and mercy helped to create the spirit of consent and submission" that maintained the loyalty of the English poor. Royal pardons, wrote Hay, "were presented as acts of grace rather than as favours to interests."
Or as William Blackstone wrote in his definitive commentaries on English law: "These repeated acts of goodness" had the effect of endearing "the sovereign to his subjects, and contribute(d) more than anything to root in their hearts that filial affection, and personal loyalty, which are the sure establishment of a prince." That's the theory, anyway.
In their search for a well-ordered government overseeing a stable society, the founders endowed the presidency with this unlimited kingly power to pardon citizens as an outlet to overly severe laws or courts. According to Hay, however, even in the king's hands the power was often suspect. The "grounds for mercy," he wrote, "were ostensibly that the offence was minor, or that the convict was of good character, or that the crime he had committed was not common enough in that county to require an exemplary hanging."
Under this analysis, we might put the president's pardon of his brother's cocaine conviction in the "minor" category--and therefore suitable. (Though many observers would quickly point out the thousands of unpardoned inmates, including mothers, whose cases are at least equally worthy.)
Applications that go through regular channels in the Department of Justice--which Clinton pretty much bypassed--nearly always put forward an argument of good character. The applicant is cited for family values, community and church service or generous philanthropic contributions--though often of ill-gotten gains.
Hay doubts that most kingly pardons were meritorious. On the contrary they "served to save a good many respectable villains." Then, as now, the pardon tended to go to the well-off criminal because "mercy was part of the currency of patronage. Petitions were most effective from great men, and the common course was for a plea to be passed up through increasingly higher levels of the social scale, between men bound together by the links of patronage and obligation." But there was a downside to all this.
The power had to be used judiciously or its effects could boomerang. Says Hay: "The aim above all was to avoid exposing the law and authority either to ridicule or to too close scrutiny." Ridicule of the law and close scrutiny of this once unquestioned presidential power are quickly becoming two more legacies of the Clinton years. The push is on to restrict the presidential pardoning power, which would entail an enormous political and constitutional fight.
Mercy must be an active part of a healthy justice system. In a March 6 article in the New York Law Journal, two former federal prosecutors, Elkan Abramowitz and Barry A. Bohrer, argue that whatever damage Clinton's pardon of Marc Rich did to Clinton's own reputation and legacy, the graver concern is with the damage he may have inflicted on the institution of executive clemency itself. That's because the possibility of obtaining mercy outside the rigid procedures that govern the criminal justice system is an important safeguard both to those seeking absolution, and to "a public committed to the notions of fairness and justice in the administration of its criminal laws."
In other words, the possibility of mercy and forgiveness functions as a protection for everyone. While many commentators have attacked unlimited presidential discretion in granting pardons as an anomaly that should now be corrected, these two former prosecutors see it as "the ultimate check on legislative or judicial injustice."
After all, we live in a time of harsh criminal laws that are often made even more severe by mandatory minimum sentences essentially eliminating judicial discretion. Alexander Hamilton could have been writing about our own time: "Humanity and good policy conspire to dictate that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel."
Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.