Rise of the Warrior Cop (17 page)

The White House regrouped and decided instead to put its initial push behind the crime bill aimed specifically at Washington, DC. No-knock raids were in that bill, as was preventive detention. The bill also eliminated probation and suspended sentences for some crimes, imposed mandatory life sentences for others, and broadly expanded wiretapping authority. The bill allowed police to conduct on-the-spot urinalysis tests during drug raids, allowed them to seize anything they found in a raid (they had been limited to seizing only the items they had listed in the search warrant affidavit), and removed the restriction requiring police to be “certain” that the evidence they were looking for would be found before they could raid a home at night.
⁶

Since Nixon and Mitchell were most interested in quickly accumulating legislative victories on the law-and-order issues that had won them election, the major advantage of the DC bill was that, at least early in the process, it could be routed around the unexpected obstacle of Sam Ervin and his Judiciary Committee. Instead, the Washington bill began at the House and Senate committees that oversaw the District of Columbia. In the House, that committee was chaired by Rep. John McMillan, a good-ol’-boy conservative Southern Democrat who had once sent a truckload of watermelons to the black mayor of Washington, DC. He’d be an ally.

In the Senate, the DC oversight committee was chaired by Sen. Joe Tydings, a Democrat from Maryland. Though Tydings was one of the more liberal members of the Senate, he faced a tough reelection
in 1970. Maryland was home to a large, white, wealthy batch of DC suburbs, and many of those suburbanites worked in Washington. If they hadn’t yet been mugged themselves, they probably knew someone who had; at the very least they had read the press accounts of the city’s crime problem. The tougher on crime Joe Tydings could look, the better his prospects for reelection.

Tydings’s committee reported out a crime package of more than three hundred pages. It included court reorganization, no-knock raids and preventive detention, allowing raiding cops to administer on-the-spot urine tests, tougher sentencing guidelines, and an absurd proposal to let prosecutors appeal acquittals.

When Ervin learned of those provisions, he demanded they be removed or he’d mount an effort to kill the bill entirely. Most of them were taken out, or at least they were narrowed. Preventive detention was removed entirely and reintroduced as a separate bill. The no-knock provision stayed in but was slightly altered to require police to show a “substantial probability” that evidence would be destroyed if they were to make themselves known before forcing entry. The change was mostly cosmetic, but at least appeared to make the no-knock warrant more difficult to obtain.
⁷

In December 1969, the package easily passed the full Senate. Perhaps because the idea still wasn’t largely understood outside members of the Nixon administration and a few state legislators and Rockefeller administration officials in New York, there was little objection to the no-knock provision, even from Ervin. But the minor change to the bill’s language would later become very important.
⁸

On the House side, Representative McMillan was working on a DC bill more in line with what Nixon and Mitchell wanted than what had come out of the Senate. McMillan’s hearings on the House bill lasted less than an hour, and only members of the Nixon administration were permitted to testify. When Ervin heard about the House bill, which included everything he’d fought in the Senate bill and worse, he was outraged. He called it “a garbage pail of some of the most repressive, near-sighted, intolerant, unfair, and vindictive” policies he had ever encountered in politics. The bill swept
through McMillan’s committee and was approved by the full House. It would be up to a conference committee to decide which vision of crime control would be imposed on Washington, DC.

The Senate reconvened after the New Year for a blitz of important votes. In the chaos of the great crime bill orgy of 1970, many senators would vote on bills that took predatory swipes at civil liberties protections dating back centuries—with little knowledge of what was actually in them. Senate majority leader Mike Mansfield—the highest-ranking member of the Senate after the vice president—was typical. Mansfield said at one point that he was so overwhelmed, he’d just given up on trying to figure out if some of the laws he was voting on were constitutional. He said he’d just vote for them all and let the courts sort it out.
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The omnibus narcotics bill in particular represented a massive shift of power to the Justice Department. The bill was sponsored by Democratic senator Thomas J. Dodd of Connecticut, father of the future US senator Christopher Dodd. For Nixon, Dodd was a useful confederate. That he was a Democrat from New England helped with building coalitions. He was also a former federal prosecutor who had participated in the Nazi trials at Nuremberg, and he had chaired subcommittee hearings on LSD that led to federal prohibition of the drug. Although Dodd had plenty of anticrime credibility, the senator’s personal commitment to law and order was less than impeccable: three years earlier, he had been censured by the Senate for diverting campaign funds to his personal bank account.
¹⁰
But that was all the more reason for him to cast his lot with the crime hawks. Also up for reelection in 1970, Dodd needed an issue to make his constituents forget about his personal peccadilloes. He probably thought he’d found it with crime and drugs.

Since the Harrison Narcotics Act of 1913, the federal government’s authority to regulate illicit drugs had mostly been limited to the power to tax them. But in 1969 the Supreme Court struck down the Marijuana Tax Act in a case involving the counterculture icon Timothy Leary. Dodd’s bill took a new strategy. Instead of trying to prohibit illicit drugs by taxing them, Dodd’s bill gave the
Justice Department a wide range of new powers to directly enforce federal drug prohibition under the authority of the Constitution’s Commerce Clause.

There was a cruel historical irony at work here. The Commerce Clause gives Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The Founders intended the power to be used only in a very narrow set of circumstances, such as when one state attempts to favor its own businesses or citizens over those of the other states. Over the years the Supreme Court had forged a much broader interpretation—that the Commerce Clause gives Congress the authority to regulate
any
activity that affects commerce in more than one state. Roosevelt’s New Deal–era justices were especially fond of the interpretation, perhaps most famously in the 1942 case
Wickard v. Filburn,
in which the Court ruled that the Commerce Clause gives Congress the authority to impose quotas on the amount of wheat a farmer can grow on his own land, even if he’s only growing the wheat for his own use.
¹¹
The Court’s rationale was that the wheat the farmer grows for himself is wheat he isn’t purchasing on the market, thus affecting interstate commerce. In 1964 Congress drew on that interpretation of the Commerce Clause to pass the Civil Rights Act, which gives the federal government broad powers to target private businesses that engage in racial discrimination. When those powers were challenged, the Warren Court continued to broaden the Commerce Clause in support of the law, ruling, for example, that Congress has the authority to forcibly integrate any businesses along major highways and interstates or any businesses that sells products made in other states.

But the same broad interpretation of the Commerce Clause that allowed the federal government to integrate private businesses in the South also gave Mitchell and Nixon the authority to wage their war on crime and drugs—a war that over the next forty years had some devastating consequences for large swaths of black America. In the omnibus law, Mitchell would claim for his department all authority to oversee the manufacture, distribution, export, import, and sale of
addictive drugs. The bill created a classification system for illicit drugs and vested the classification authority with the Justice Department. That met with fierce resistance from researchers and medical organizations, who believed that authority to determine which psychoactive drugs have medical benefits and which cause harm should belong to the Department of Health, Education, and Welfare or to an agency like the FDA instead of an agency whose primary mission was law enforcement. Their pleas were in vain. A version of the Dodd bill would later become the Controlled Substances Act, the law that has authorized the war on drugs ever since.

I
T ISN’T CLEAR WHY
E
RVIN DIDN’T PUT UP MORE OF A FIGHT
against the no-knock raid back in December 1969 with the DC crime bill. Perhaps he simply hadn’t had time to read it or consider its consequences. By the time the omnibus drug bill came to his committee, he attempted to remove the no-knock provision but failed to muster enough support. But on January 25, 1970, the omnibus bill came to the floor of the full Senate. This time Ervin was ready. He forced the Senate to debate no-knock raids for three days. Ervin was the loudest, most indignant of the policy’s opponents. He declared the tactic “incompatible with the essence of liberty,” and proclaimed, “I stand on the proposition that every man’s home is his castle, and that the Congress should not go on record as allowing Department of Justice officials to break into a home like burglars.” Invoking the British common-law cases, he steamed that the tactic was not “using the keys of the king to open all the doors,” but instead “using the king’s axe to knock down the door and break the window.”

For a while, it looked as if Ervin might have had enough support to strip the measure from the larger bill. After the first day of debate, even Senator Dodd, the bill’s sponsor, had reservations. Dodd told the
New York Times
that the no-knock raid was “one of the toughest questions I’ve faced,” and that he was now “almost of an open mind” about it.

But Dodd toughened his resolve, and the no-knock supporters fought back. Dodd forebodingly warned his fellow senators that “the hoodlums are watching us, the dope peddlers are watching us. They want to know if we mean what we say.” Republican senator Robert Griffin of Michigan argued that the no-knock raid was no big deal because twenty-nine states had already legalized it. In truth, only a handful of state legislatures had explicitly legalized the tactic. In most cases, it was simply that a state appellate court had at some point in the state’s history refused to throw out evidence obtained in a raid in which police didn’t knock and announce themselves. That was quite different from what the Senate was considering: explicitly authorizing federal agents to use the no-knock raid as a get-tough-on-criminals tactic.

The Senate’s two party leaders also lined up against Ervin. Republican minority leader Hugh Scott of Pennsylvania lamented, “We are encountering a certain amount of sob-sisterism from people who tend to weep somewhat excessively about the rights of the drug pusher.” Given that the measure’s chief opponent was Ervin, a fierce critic of the Warren Court who supported the Republicans’ crime bill in 1968, the charge was rubbish. Majority Leader Mansfield, meanwhile, returned to his argument of shifting responsibility: he urged the senators to simply put their trust in the courts to properly oversee no-knock warrants.

Still, Ervin had the momentum, and a growing faction of senators were lining up behind him. By January 27, the
Times
reported, “Senate leaders were predicting that Senator Ervin would win his fight.”

But then Senator Griffin pulled off a brilliant bit of legislative maneuvering. He introduced an amendment changing a single word in the no-knock provision. In the original wording, police could enter without knocking if they could show that evidence “
may
be destroyed.” Griffin changed the phrase to “
will
be destroyed.” Technically, that was supposed to make it more difficult to obtain a no-knock warrant. In practice, it made no difference at all. It was a standard that had no real definition, and in any case, in the event that a police officer did hypothetically exaggerate the threat of a
suspect destroying evidence to get a no-knock, the mere fact that it was a no-knock raid meant that it was a standard that could never be verified after the fact.

But it was still a shrewd bit of politicking. Even senators who opposed the no-knock raid in general might vote for an amendment restricting its use, just in case the law itself was passed—and several did. Griffin’s amendment passed 44–40. Griffin then revealed his trickery. Once his amendment had passed, he pointed out that the no-knock law in this bill was now identical to the bill the Senate had passed for DC just a month earlier. That one had slipped through without much debate. Any senator voting against this bill would then have to explain why he voted to allow no-knock raids in DC but was now against allowing federal agents to use the tactic in the rest of the country.