lars worth of property." 62
2. The contention that the evidence in many of the cases is
too weak to support a felony conviction seems largely correct.
There can be little argument with the low 1 1% rate of conviction
for felonies in the District Court. Appraisals by the trial assist-
62 Report by Evelle J. Younger, District Attorney of Los Angeles County to the
Governor's Commission on the Los Angeles Riots 19-20 (1964).
89
ants of the first batch of cases show that defendants were ac-
quitted or cases dismissed because of inability of the officer to
identify the defendant or the place where the alleged offense oc-
curred, or no proof that the defendant had any property. One
case report ends with the notation:
"No verdict. Case insufficient to go to the jury or to get be-
yond our case. [The Judge] held evidence did not make out
a grand jury case of either Engaging in Riot or Burglary. He
was right."
Most of the judges feel that the juries have been doing their
duty and that they themselves would have decided the case in
about the same way. Only a very small minority suggests that
black juries will favor black defendants against white police offi-
cer witnesses, either for outright racial reasons or because many
of the jurors themselves were involved in rioting but escaped ar-
rest. Almost all of the judges in both courts, black and white,
feel that such a claim is unfounded.
3 . The fact of the increase in the District Court backlog
cannot be denied, even though the special calendar system did
contribute to minimizing the backlog. The United States Attor-
ney's office made a conscious choice of priorities, determing that
the deterrent effect of charging felonies upon recurrence of dis-
order outweighed the effect of the flood of cases on the District
Court's calendar. One judge of the Court of General Sessions
agrees; in his view light charging would have contributed to the
atmosphere of "permissiveness" already current in the city,
which would have promoted further disorder. On the other hand
the backlog problem is a serious matter to the court and the com-
munity. It is charged that individuals on bail awaiting trial are
responsible for much of the increasing violent crime in the Dis-
trict of Columbia. Yet any effort to reduce the criminal backlog
by concentrating resources on criminal cases increases the civil
backlog.
One view lays the blame for the riot case backlog on defense
attorneys who have refused to plead their clients. While under-
standable as the viewpoint of a judge or prosecutor concerned
about the backlog of cases, it seems beyond dispute that each
lawyer is individually responsible for advising his client where his
best interests lie, and in view of the low rate of felony convictions
and the lenient sentences being imposed, it would be captious to
criticize the judgment of a lawyer who advises his client to stand
trial.
90
There is no dispute, however, that the delay in prosecution
of the riot cases (like delay in normal times) has seriously weak-
ened the deterrent effect of prosecution. Indications are that
there would have been substantial community support for a pol-
icy resulting in speedier disposition of cases. In interviews of 25
businessmen, including the presidents of some large businesses in
the District, by a heavy margin the businessmen favored speedy
disposition of cases with lighter punishment over delayed disposi-
tion with heavier punishment, feeling that speedier disposition
was a more effective deterrent to crime.
More than eight months have passed from the disorders in
April to December 3 1 , 1968, the statistical cutoff date for Dis-
trict Court dispositions. Thirty -four percent (304) of all initial
Burglary II prosecutions (904) were then still pending. Available
information from Detroit and Los Angeles (Appendix G) indi-
cates that in Los Angeles, as of June 30, 1966, less than ten
months after the August, 1965, Watts disorders, all but 4% of the
burglary (felony) prosecutions had been disposed of and that in
Detroit, as of April 30, 1968, nine months after the July, 1967,
disorders, only 25% of the felony cases were pending. On the
other hand, the quality of justice in those cities seems to have
fallen well below that in the District of Columbia. In the District
Court 29% (36 out of 125) of the defendants found guilty were
tried; in Detroit only 9 out of 1 ,21 1 defendants were found guilty
after trial, evidencing a prosecution practice of dismissing cases
wholesale if a plea could not be obtained.
4. The felony conviction rate and the decision of the United
States Attorney's office to accept pleas to misdemeanors in the
District Court, after it was seen how difficult it was going to be to
obtain felony convictions, do, with hindsight, support the view
that too many indictments were returned. How this should af-
fect the action of the office in a future emergency is problemati-
cal. Expectation that the juries would react the same way again
would suggest many fewer indictments; on the other hand, juries
after a second major disorder might well be more willing to con-
vict for felonies.
5. With respect to sentencing, the judges almost unanimously
stated that the same standards should be and were being applied in
riot cases as would be applied in normal times in sentencing de-
fendants who had done the same kind of act and who had the
same kind of background. This means, in the large majority of
cases (characterized by one judge as no more than "petty thiev-
ery"), where the defendant is a first offender, sentence will be
91
suspended and the defendant placed on probation. The record,
of course, confirms this. Only one judge indicated that perhaps
stricter sentences should be imposed as a deterrent measure
against these persons participating in a disorder. From the prose-
cutor's point of view (a view supported by our sample of the
business community) the relative absence of jail sentences is
troubling.
The relative leniency of sentences is not surprising, however.
The tendency of courts to sentence riot defendants lightly was
noted (and deplored) by Senator Mundt (R., Neb.) in the Senate
Government Operations Committee riot hearings. 63 Moreover,
Appendix G shows that in Los Angeles, 60% of burglary defend-
ants received probation, and nearly all of the jail terms were for
six months or less. In Detroit, only slightly over 3% of the de-
fendants were sentenced to jail terms, of which, again, nearly all
were for six months or less.
Why "Too Many Felonies"
There seem to be several reasons for "too many felonies."
First, had the guidelines not required a plea of guilty in or-
der for charges to be reduced, many fewer cases would have
been prosecuted as felonies.
As we have seen, two-thirds of the sample of cases in which
preliminary hearings were held in the Court of General Sessions
were cases that fell within guideline No. 3 a defendant found in a
store with merchandise but without a criminal record whose
charge would have been reduced from a felony to a misdemeanor
if he had been willing to plead guilty to the misdemeanor. In the
1 04 cases in the sample the defendant was presumably unwilling
to plead guilty and hence the cases were to be sent to the grand
jury. If no plea had been required and the cases automatically
reduced, if our one-third sample of defendants is representative,
two-thirds of the 436 defendants bound over to the grand jury
would never have been indicted-an important reduction in the
District Court's backlog. Of course, they would have tended to
increase the backlog in the Court of General Sessions. The per-
centage effect (given the much larger number of criminal prosecu-
tions filed and processed in the Court of General Sessions) would
of course have been much less; and the Court of General Sessions,
"^Hearings, Senate Committee on Government Operations, Permanent Subcommittee
on Investigation: Riots, Civil and Criminal Disorders 1316 (1967).
92
unencumbered by the need for a grand jury indictment, for ex-
ample, generally disposes of cases in much less time than does the
District Court. Because of the opportunity to pick a lenient
judge in the Court of General Sessions, many of these defend-
ants might have pleaded guilty in any event, although many
defense attorneys, feeling that a defendant without a criminal
record was unlikely to receive a prison sentence from most of
the judges in the Court of General Sessions, might well have
decided that the defendant ran little risk in going to trial.
One reason for the many refusals to plead in guideline No. 3
cases is the difference between plea bargaining in normal times
and in the riot cases. In normal times, plea bargaining is a sophis-
ticated process in which prosecutor and defense attorney weigh
the evidentiary and legal strength of the case and the consequent
risks of going to trial, and the probable sentence that will be im-
posed on the defendant given his personal characteristics and pre-
vious criminal record. The defense attorney weighs the probable
sentence in terms of the defendant's own interest in as light a sen-
tence as he can reasonably expect; the prosecutor weighs the sen-
tence as it may appropriately serve the interest of society in
punishment and deterrence.
In the riot situation, the guideline pigeonholes were, accord-
ing to the United States Attorney's office, based primarily on a
determination of the degree of culpability of the defendant in
light of the facts then known to the prosecutor. A defendant
caught in a store with merchandise who had no criminal record
was deemed a person less likely to have been an instigator or
leader than a person caught in a store with merchandise who had
no criminal record. Hence, the former would be allowed to plead
guilty to a misdemeanor; the latter would be prosecuted on a
felony charge.
The facts of the cases fell into uniform categories, and the
evidence the testimony of the arresting officer at the scene was
much the same in most cases. So in the riot situation there was
little of the usual give and take of plea bargaining; under the
guidelines reduction in exchange for a plea was on a "take it or
leave it" basis.
The major objection to plea bargaining in these circum-
stances is this: if the standard for reduction to a misdemeanor is
based on the prosecutor's determination of what is a just result,
then it would seem improper to require, as the price for the re-
duction to which under the prosecutor's standard the defendant
is justly entitled, that he give up his right to trial.
93
A second criticism is that, as seen, the plea bargaining fea-
ture was itself responsible for a majority of the cases being re-
ferred to the grand jury. In the riot context, therefore, the major
advantage of plea bargaining was lost. That advantage, as several
studies have pointed out, is that it conserves the time of the
courts and of the prosecutors and reduces the trial backlog and
the average delay in criminal prosecutions. (It has also been de-
fended on the grounds, already mentioned, that a plea agreement
eliminates the risk of litigation and offers an alternative to bring-
ing a hopeless case to trial.) 64
With its failure to serve this function, the criticisms often
levied at plea bargaining bear much weight and offer a further
argument against its use under tne rules adopted by the office
for the April riot cases.
The practice has been condemned as encouraging overcharg-
ing by the prosecution, to put itself in a better position for nego-
tiation (a factor which representatives of the United States Attor-
ney's office have stated was not considered in the charging policy
adopted in the disorders, contrary to the beliefs of several judges);
and as making the volume of business a factor, inducing possibly
more lenient treatment by the prosecution. The practice may in-
duce pleas in cases where a defendant is, or firmly maintains, that
he is not guilty. Even the courts have begun to recognize that a
guilty plea may properly be entered where the probable testimony
indicates that a conviction is the likely result of trial, even though
the defendant refuses to admit his guilt. 64a What this some-
times meant in the civil disorder cases was that after conferring
with the officer and/or prosecutor defense attorneys would tell
a defendant that, despite the defendant's assertion of innocence,
the jury was more likely to believe the officer's testimony than
his, and advise him therefore to plead guilty to a lesser offense.
Plea bargaining has been criticized as substantially weaken-
ing the possibilities of rehabilitation by convincing the defendant
that he can "beat the system." 65 The practice has been most elo-
6 \Stee, e.g., President's Commission on Law Enforcement and Administration of Jus-
tice, Task Force Report: The Courts 9-13 (1967); American Bar Association Project
on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty
60-68 (1967); Subin, Criminal Justice in a Metropolitan Court 42-50 (1966).
64a Griffm v. United States (U.S. Ct. App. D.C. Or. (Nov. 21, 1968)).
65 Medalie and Wolf, Eds., Crime-A Community Responds, Proceedings of the Con-
ference on the Report of the President's Commission on Crime in the District of
Columbia 93 (1968) (remarks of Miss Sylvia Bacon).
94
quently attacked as destroying community respect for the judi-
cial system:
'The fact is ... that people who are poor and have been
charged with crime are literally advised by their defense
counsel to plead guilty to crimes which they claim they
didn't commit. And the reason they tell their clients this is
a very practical reason. They say, 'If you plead guilty, you
will get a fine or forfeit collateral. If you go to trial, on the
other hand, you may end up with a higher fine or in jail.
Don't take the risk.'
"Now, what is the impact of that kind of system on a
man who says, Tm innocent. I want to go to trial.' And
his counsel tells him, 'You're a fool if you go to trial. It's
the stupidest thing you can do.' On his record, the defend-
ant, therefore, not only has an arrest, he had a conviction. . .
Yet I would suggest that none of us are really ready to face
the problem of what happens if judges stop giving lower sen-
tences for pleas of guilty. The [D.C. Crime] Commission
recommends that, but I think it's fair to say that that would
result in an enormous increase in the number of cases tried
in the District of Columbia. I think we must face that prob-
lem and decide that we're either going to give people trials
and not to try to bribe them into giving up their right to a
fair trial, or we're going to have to change our whole atti-
tude about what our criminal justice system is about." 66
Second, to at least some degree, and in a numerically much
less significant class of cases, the guidelines did not always work.
There seems to have been at least some confusion in the office at
General Sessions about their content and meaning. Disposition
before trial in many cases depended upon the defense attorneys,
many of whom either were unaware of the opportunity or advised
their clients to forego it. Several judges referred to the "inexpe-
rience" of the Assistants in General Sessions as a problem, sug-
gesting that they bring cases on for preliminary hearings that a
more experienced prosecutor would reduce. There is no way of
assessing whether this was a contributing factor, although the
mechanism for administering the guidelines, employing four
of the most mature and experienced Assistants in General Ses-
sions, under constant supervision, makes it unlikely.
66 /d. at 88-89 (1968) (remarks of Bruce J. Terris, Esq.).
95
Third, the statutory arsenal available to the prosecutor in
April may have been too procrustean a bed into which to fit the
cases. For example, the only charge available against people
cruising around with molotov cocktails in their automobiles
potentially dangerous offenders-was Possession of the Imple-
ments of Crime, D.C. Code 22-3601, a misdemeanor ordinarily
used to charge narcotics addicts arrested without narcotics but
with a syringe.
Even a quick review of the statutes available for riot-related
offenses (Appendix I) reveals the inaptness of the antiquated
statutory language not only to an emergency but indeed to crime
in normal times in A.D. 1969. A commission to revise Title 22
(the Crimes title) of the D.C. Code was established by Congress
in 1967, 67 and the Commissioners appointed. But Congress has
not yet appropriate funds for the Commission and it has been
unable to begin its work. Other jurisdictions abound in statutes
better drafted to deal with the kinds of conduct that initiate,
exacerbate and continue a civil disorder. See, for example, Cal.
Pen. Code 452, penalizing possession of "fire bombs," defined
to include a typical molotov cocktail, or the similar provision of
ISPenna. Stat. 4417.
Likewise, a statute to punish looting during a proclaimed
emergency would not be difficult to draw. One suggestion, by a
District Court judge, was for degrees of severity, graduated de-
pending upon whether the defendant was in a premises closed
for business in the day or night, with or without merchandise in
his possession, alone or acting in concert with others and whether
or not he was the first to break or enter a theretofore unlooted
establishment.
67 P.L. 90-226, 81 Stat. 7341 (1967).
96
PART IV. CONCLUSIONS AND RECOMMENDATIONS
Considerable temerity is needed to make recommendations
for or against changes in the criminal justice system for a possi-
ble future riot (that all hope will not occur), based on the last
riot. The next riot may be quite unlike the last in its genesis,
spread or severity. It may last one night, or two weeks. Martial
law may be imposed (which would eliminate most worries for the
civilian agencies, at least until martial law is lifted). But, from
the events of last April and their aftermath, a few matters stand
out for comment.
A. The Police
Part I records absence of adequate instructions to officers
on arrest policy, what charges to use, and curfew enforcement.
The consequence was a wide disparity among the officers and re-
sulting unequal treatment of rioters. Many guilty of serious of-
fenses may have been charged only with curfew; and the arrest of
a person in the street after the hour of curfew may often have de-
pended on factors like attitude and dress that should have no
bearing on a decision to arrest.
First, instructions about charging during a disorder should
be given to officers. It should not be left to the individual officer
to determine, on the basis of a necessarily snap judgment in the
street, whether an offender who has certainly committed, say,
unlawful entry, should be charged only with a curfew violation
carrying a minimum penalty or instead with Burglary. Adoption
of a graded looting statute (see Part III) would go far towards
solving the problem, allowing the officer to charge "Looting," set
out the facts and let the prosecutor determine the appropriate
degree of charge.
There is an obvious need for a clear articulation from the
policy-makers of the purpose of curfew. Should it be used, as
some officers felt, as a convenient street clearing tool? Or is its
purpose, as an official of the Corporation Counsel's office
thought, to screen out only those who have no legitimate busi-
ness on the streets? The executive authorities and the Congress
(if it enacts any of the curfew legislation proposed in the Supple-
mental Report of the D.C. Committee on the Administration of
Justice Under Emergency Conditions) have responsibility to
97
answer these vexing questions.68 This requires some hard thinking
about the curfew. It is, of course, a limitation on liberty. Whether
it is a justifiable limitation depends upon application of the mini-
mum restraint consistent with the restoration and maintenance of
order.
Given a clear policy lead, the Department should develop a
set of guidelines covering curfew arrests, giving officers guidance
as to the standards they should employ in deciding whether to
stop a curfew violator and whether to make an arrest or send him
on his way. Much will still have to be left to the officer's discre-
tion, but that discretion would be aided and more intelligently
exercised within the framework of simple, clear guidelines.
Translated into enforcement policy, the minimum restraint
standard suggested above would dictate guidelines designed to re-
duce the number of curfew arrests to the lowest level consistent
with the restoration of order. This would mean warning violators
to get home, not arresting them, in quiet areas; turning back, not
arresting, those apparently headed towards an area of disorder;
careful screening, with vehicle search if appropriate and lawful, of
those leaving an area of disorder, arrest where there is evidence of
a crime, like looted goods, but release of those headed away from
the disorder area who are not subject to arrest for a substantive
offense.
The drafting of guidelines or the content of specific instruc-
tions is beyond the scope and resources of this study. Interesting
examples of police guidance manuals are included in Schwartz and
Goldstein, Police Guidance Manuals (1968). Guidance Manual
No. 10 covers "Demonstrations, Picketing, Riots," and the short
section on riots provides a good starting point for the kind of
guidelines and instructions that would be appropriate.
B. The Courts; Pre-trial Release
The facts related at length in Part II cast considerable doubt
on the wisdom of the policy of restricted release. That it was not
a major blunder a la Detroit or Chicago is thanks to the good
sense and sensitivity of most of the judges and to the existence
in the District of the Bail Reform Act and machinery for its im-
plementation.
68 As one former Assistant Attorney General has commented with hindsight, fairness
alone requires the authorities to announce their policy in advance. Pollak, Some
Unresolved Issues in the Administration of Justice During and After a Civil Disorder
(address to the Institute of Continuing Legal Education, University of Michigan,
July 20, 1968).
98
The District of Columbia Bail Agency, operating under tre-
mendous handicaps, shorthanded and without sufficient facili-
tieseven enough telephones to handle the flood of cases, was
able to obtain and verify information about community ties and
recommend for release two-thirds of the 90 1 persons they inter-
viewed. The defense attorneys supplemented the Bail Agency's
efforts and obtained and verified information themselves in cases
that the Bail Agency was unable to handle, and brought this in-
formation to the attention of the judges setting bail. As a result
some judges, finding evidence of strong roots in the community
qualifying many defendants for release under the Bail Reform
Act, felt themselves able to release many such people on per-
sonal recognizance.
This suggests one obvious recommendation; the facilities of
the Bail Agency should be organized to permit immediate expan-
sion in an emergency. Even in an emergency telephones can be
installed on short notice; provision should be made to obtain and
make use of additional interviewers and verifiers, many of whom
could be volunteers law students or U.S. Government-employed
lawyers, for example. In connection with this, arrangements need
to be made to get other important information like criminal rec-
ordsto the Agency and before the court.
A unique aspect of the policy of restricted release as it was
implemented in the District of Columbia in April was the use of
the third party custody device provided in the Bail Reform Act.
In a future disorder, there should be more reliance upon and fa-
cilitation of the use of third party custody. Better arrangements
should be made to permit third parties to come to court to vouch
for defendants and take them home.
As we have seen, the number of defendants released at court
was higher in the daytime than at night, because of the general
inability of third parties to get to court at night. If bail hearings
were held only in the daytime, this cause of unequal treatment
would be eliminated. On the other hand, this would result in
longer pre-appearance incarceration for some defendants. A bet-
ter solution would be to ensure that any defendant who appears
at night and is not released be given the opportunity to contact
his friends or relatives and have another appearance promptly the